Terms and Conditions
Terms of Service
These
Terms of Service (this “Agreement”) are a binding contract between you
and Mindwrite AI, LLC (“Mindwrite AI,” “we,” or “us”). This
Agreement governs your access to and use of the Services.
PLEASE
READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND A CLASS ACTION/JURY TRIAL
WAIVER THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION
11(B), THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL
BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE
OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT
PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF
LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE
AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY
GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
THIS
AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY
ACCESSING OR USING THE SERVICES (THE “EFFECTIVE DATE”). BY CLICKING ON
THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES YOU (A)
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND
WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT
AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE
LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND
AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU
DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW
OR DO NOT ACCESS OR USE THE SERVICES. IF YOU
DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Definitions
“Aggregated
Statistics” means data and information related to Customer’s use of the
Services to be used by Mindwrite AI in an aggregated and anonymized manner,
including to compile statistical and performance information related to the
provision and operation of the Services.
“Arbitration
Agreement” means the mandatory individual arbitration provision in Section
11(b).
“Authorized
User” means Customer’s employees, consultants, contractors, and agents (i)
who are authorized by Customer to access and use the Services under the rights
granted to Customer pursuant to this Agreement and (ii) for whom access to the
Services has been purchased hereunder.
“Class
Action/Jury Trial Waiver” means the class action/jury trial waiver
provision in Section 11(c).
“Confidential
Information” means information about either party’s business affairs,
products, confidential intellectual property, trade secrets, third-party
confidential information, and other sensitive or proprietary information,
whether orally or in written, electronic, or other form or media/in written or
electronic form or media, whether or not marked, designated, or otherwise
identified as “confidential” at the time of disclosure. Confidential
Information does not include information that, at the time of disclosure is:
(a) in the public domain; (b) known to the receiving party; (c) rightfully
obtained by the receiving party on a non-confidential basis from a third party;
or (d) independently developed by the receiving party.
“Customer,”
“you,” or “your” means you and your Authorized Users.
“Customer
Account” means your account on the Services.
“Customer
Content” means any content, including profile information, comments,
questions, and other content in any form or medium, that is submitted, posted,
displayed, transmitted, or otherwise made available on the Services by or on
behalf of Customer or any other Authorized User. For the avoidance of doubt,
output, copies, reproductions and other derivative works generated by your use
of the Services as expressly permitted hereunder which are derived from
Customer Content are themselves also Customer Content; provided, however, that
Aggregated Statistics is not Customer Content.
“Documentation”
means Mindwrite AI’s user manuals, handbooks, guides, FAQs, instructional
videos, relating to the Services provided by Mindwrite AI to Customer
electronically and relating to the Services available at www.Mindwrite.ai.
“Feedback”
means any communications or materials sent to us by mail, email, telephone, or
otherwise, suggesting or recommending changes to the Services, including without
limitation, new features or functionality relating thereto, or any comments,
questions, suggestions, ideas, or the like, about the Services.
“Intellectual
Property Rights” means all patent rights, copyright rights, mask work
rights, moral rights, rights of publicity, trademark, trade dress and service
mark rights, goodwill, trade secret rights and other intellectual property
rights as may now exist or hereafter come into existence, and all applications
therefore and registrations, renewals and extensions thereof, under the laws of
any state, country, territory or other jurisdiction.
“Mindwrite
AI IP” means the (i) Services, including all materials therein or
transferred thereby, including, without limitation, software, images, text,
graphics, illustrations, logos, patents, trademarks, service marks, copyrights,
photographs, audio, videos, and music, (ii) the Documentation, (iii) and all
intellectual property provided to Customer or any other Authorized User in
connection with the foregoing. For the avoidance of doubt, Mindwrite AI IP
includes Aggregated Statistics and any information, data, or other content
derived from Mindwrite AI’s monitoring of Customer’s access to or use of the
Services, but does not include Customer Content.
“Privacy
Policy” means the privacy policy, available at www.Mindwrite.ai/legal/privacy.
“Services”
means the online and/or mobile services, web site, and software provided on or
in connection with the service provided by Mindwrite AI under this Agreement
and as detailed on Mindwrite AI’s website at www.Mindwrite.ai.
“Third-Party
Products” means any products, content, services, information, websites, or
other materials that are owned by third parties and are incorporated into or
accessible through the Services.
“User”
or “Users” means all visitors, users, and others who access the
Services.
“User
Accounts” means different types of accounts for different types of Users.
2. Access and Use
(a) Eligibility. This is a contract
between you and Mindwrite AI. You must read and agree to this Agreement before
using the Services. If you do not agree, you may not use the Services. You may
use the Services only if you can form a binding contract with Mindwrite AI, and
only in compliance with this Agreement and all applicable local, state,
national, and international laws, rules and regulations. Any use or access to
the Services by anyone under 13 years old (or under 16 years old in Europe) is
strictly prohibited and in violation of this Agreement. The Services are not
available to any Users previously removed from the Services by Mindwrite AI.
(b) Provision of Access. Subject to and
conditioned on your payment of Fees and compliance with all the terms and
conditions of this Agreement, Mindwrite AI hereby grants you a revocable,
non-exclusive, non-transferable, non-sublicensable, limited right to access and
use the Services during the Term solely for your internal business operations
by Authorized Users in accordance with the terms and conditions herein. Mindwrite
AI shall provide you the necessary passwords and access credentials to allow
you to access the Services.
(c) Documentation License. Subject
to the terms and conditions contained in this Agreement, Mindwrite AI hereby
grants you a non-exclusive, non-sublicensable, non-transferable license for
Authorized Users to use the Documentation during the Term solely for your
internal business purposes in connection with use of the Services.
(d) Accounts. Your Customer
Account gives you access to the services and functionality that we may establish
and maintain from time to time and in our sole discretion. We may maintain
other User Accounts. If you open a Customer Account on behalf of a company,
organization, or other entity, then “you” includes you and that entity. By
connecting to Mindwrite AI with a third-party service, you give us permission
to access and use your information from that service as permitted by that
service, and to store your log-in credentials for that service.
You
may never use other Users’ User Accounts without permission. When creating your
Customer Account, you must provide accurate and complete information, and you
must keep this information up to date. You are solely responsible for the
activity that occurs on your Customer Account, and you must keep your Customer
Account password secure. We encourage you to use “strong” passwords (passwords
that use a combination of upper and lower case letters, numbers and symbols)
with your Customer Account. You must notify Mindwrite AI immediately of any
breach of security or unauthorized use of your Customer Account. Mindwrite AI
will not be liable for any losses caused by any unauthorized use of your
Customer Account.
You
may control your Customer Account profile and how you interact with the
Services by changing the settings in your settings page. By providing Mindwrite
AI your email address you consent to our using the email address to send you
Services-related notices, including any notices required by law, in lieu of
communication by postal mail. We may also use your email address to send you
other messages, such as changes to features of the Services and special offers.
If you do not want to receive such email messages, you may opt out or change
your preferences in your settings page. Opting out may prevent you from
receiving email messages regarding updates, improvements, or offers.
(e) Use Restrictions. You
shall not, and shall not permit any Authorized Users to engage in any of the
following prohibited activities: (i) copying, distributing, selling, reselling,
or disclosing any part of the Services in any medium, including without
limitation by any automated or non-automated “scraping”; (ii) using any
automated system, including without limitation “robots,” “spiders,” “offline
readers,” etc., to access the Services in a manner that sends more request
messages to the Mindwrite AI servers than a human can reasonably produce in the
same period of time by using a conventional on-line web browser (except that Mindwrite
AI grants the operators of public search engines revocable permission to use
spiders to copy publicly available materials from the Services for the sole
purpose of and solely to the extent necessary for creating publicly available
searchable indices of the materials, but not caches or archives of such
materials); (iii) transmitting spam, chain letters, or other unsolicited email;
(iv) attempting to interfere with, compromise the system integrity or security
or decipher any transmissions to or from the servers running the Services; (v)
taking any action that imposes, or may impose at our sole discretion an
unreasonable or disproportionately large load on our infrastructure; (vi)
uploading invalid data, viruses, worms, or other software agents through the
Services; (vii) collecting or harvesting any personally identifiable
information or other personal information, including account names, from the
Services; (viii) using the Services for any commercial solicitation purposes;
(ix) impersonating another person or otherwise misrepresenting your affiliation
with a person or entity, conducting fraud, hiding or attempting to hide your
identity; (x) interfering with the proper working of the Services; (xi)
accessing any content on the Services through any technology or means other
than those provided or authorized by the Services; or (xii) bypassing the
measures we may use to prevent or restrict access to the Services, including
without limitation features that prevent or restrict use or copying of any
content or enforce limitations on use of the Services or the content therein.
(f) Aggregated Statistics. Notwithstanding
anything to the contrary in this Agreement, Mindwrite AI may monitor Customer’s
use of the Services and collect and compile Aggregated Statistics. As between Mindwrite
AI and Customer, all right, title, and interest in Aggregated Statistics, and
all intellectual property rights therein, belong to and are retained solely by Mindwrite
AI. You acknowledge that Mindwrite AI may compile Aggregated Statistics based
on Customer Content input into the Services. You agree that Mindwrite AI may
(i) make Aggregated Statistics publicly available in compliance with applicable
law, and (ii) use Aggregated Statistics to the extent and in the manner
permitted under applicable law; provided that such Aggregated Statistics do not
identify Customer or Customer’s Confidential Information.
(g) Reservation of Rights. Mindwrite
AI reserves all rights not expressly granted to Customer in this Agreement.
Except for the limited rights and licenses expressly granted under this
Agreement, nothing in this Agreement grants, by implication, waiver, estoppel,
or otherwise, to Customer or any third party, any intellectual property rights
or other right, title, or interest in or to the Mindwrite AI IP.
(h) Suspension. Notwithstanding anything
to the contrary in this Agreement, Mindwrite AI may, in its sole discretion and
without notice, temporarily suspend or permanently terminate Customer’s and any
other Authorized User’s access to any portion or all of the Services for no
reason or for any reason, including but not limited to if: (i) Mindwrite AI
reasonably determines that (A) there is a threat or attack on any of the Mindwrite
AI IP; (B) Customer’s or any other Authorized User’s use of the Mindwrite AI IP
disrupts or poses a security risk to the Mindwrite AI IP or to any other
customer or vendor of Mindwrite AI; (C) Customer or any other Authorized User
is using the Mindwrite AI IP for fraudulent or illegal activities; (D) subject
to applicable law, Customer has ceased to continue its business in the ordinary
course, made an assignment for the benefit of creditors or similar disposition
of its assets, or become the subject of any bankruptcy, reorganization,
liquidation, dissolution, or similar proceeding; or (E) Mindwrite AI’s
provision of the Services to Customer or any other Authorized User is
prohibited by applicable law; (ii) any vendor of Mindwrite AI has suspended or
terminated Mindwrite AI’s access to or use of any third-party services or
products required to enable Customer to access the Services; or (iii) in
accordance with Section 5.
(i) Changes to the Services. We
may, without prior notice, change the Services; stop providing the Services or
features of the Services, to you or to Users generally; or create usage limits
for the Services. We may permanently or temporarily terminate or suspend your
access to the Services without notice and liability for any reason, including
if in our sole determination you violate any provision of this Agreement, or
for no reason. Upon termination for any reason or no reason, you continue to be
bound by this Agreement.
(j) Disputes with Other Users. You
are solely responsible for your interactions with other Users. We reserve the
right, but have no obligation, to monitor disputes between you and other Users.
Mindwrite AI shall have no liability for your interactions with other Users, or
for any User’s action or inaction.
3. Intellectual
Property Rights
(a) Customer Property. We claim no
ownership rights over Customer Content created by you. The Customer Content you
create remains yours.
Mindwrite
AI has the right (but not the obligation) in its sole discretion to remove any
Customer Content that is shared via the Services. By submitting, posting,
displaying, providing, or otherwise making available any Customer Content on or
through the Services, you expressly grant, and you represent and warrant that
you have all rights necessary to grant, to Mindwrite AI 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 Customer Content and your name, voice, and/or
likeness as contained in your Customer 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 Services and Mindwrite AI’s (and its successors’ and
affiliates’) business, including without limitation in connection with
modifying, improving, and enhancing artificial intelligence models, as well as
promoting and redistributing part or all of the Services (and derivative works
thereof) in any media formats and through any media channels.
In
connection with your Customer Content, you affirm, represent, warrant and
covenant the following: (i) You have the written consent of each and every
identifiable natural person in the Customer Content, if any, to use such
person’s name or likeness in the manner contemplated by the Services and this
Agreement, and each such person has released you from any liability that may
arise in relation to such use; (ii) You have obtained and are solely responsible
for obtaining all consents as may be required by law to post any Customer
Content relating to third parties; (iii) Your Customer Content and Mindwrite AI’s
use thereof as contemplated by this Agreement and the Services will not violate
any law or infringe any rights of any third party, including but not limited to
any Intellectual Property Rights and privacy rights; (iv) Mindwrite AI may
exercise the rights to your Customer Content granted under this Agreement
without liability for payment of any guild fees, residuals, payments, fees, or
royalties payable under any collective bargaining agreement or otherwise; and
(v) You will not post: nudity or other sexually suggestive content; hate
speech, credible threats or direct attacks on an individual or group; content
that contains self-harm or excessive violence; fake or impostor profiles;
content for dissemination in electoral campaigns; content that encourages
violence, terrorism, or other serious harm; illegal content or content in
furtherance of illegal activities; malicious programs or code; any person’s
personal information without their consent; and/or spam, machine-generated
content, or bulk unsolicited messages.
Mindwrite
AI takes no responsibility and assumes no liability for any Customer Content
that you or any other User or third-party posts, sends, or otherwise makes
available over the Services. You shall be solely responsible for your Customer
Content and the consequences of posting, publishing it, sharing it, or
otherwise making it available on the Services, and you agree that we are only
acting as a passive conduit for your online distribution and publication of
your Customer Content. You understand and agree that you may be exposed to
Customer Content that is inaccurate, objectionable, inappropriate for children,
or otherwise unsuited to your purpose, and you agree that Mindwrite AI shall
not be liable for any damages you allege to incur as a result of or relating to
any Customer Content.
(b) Mindwrite AI Property. Mindwrite
AI IP and all Intellectual Property Rights related thereto are the exclusive
property of Mindwrite AI and its licensors (including other Users who post
content to the Services). Except as explicitly provided herein, nothing in this
Agreement shall be deemed to create a license in or under any such Intellectual
Property Rights, and you agree not to sell, license, rent, modify, distribute,
copy, reproduce, transmit, publicly display, publicly perform, publish, adapt,
edit or create derivative works from any Mindwrite AI IP. Use of the Mindwrite
AI IP for any purpose not expressly permitted by this Agreement is strictly
prohibited. For the avoidance of doubt, Mindwrite AI IP, Aggregated Statistics
and any other information, data, or other content derived from Mindwrite AI’s
monitoring of your access to or use of the Services, but does not include
Customer Content. In furtherance of the foregoing, you hereby unconditionally
and irrevocably grant to Mindwrite AI an assignment of all right, title, and
interest in and to the Aggregated Statistics, including all Intellectual
Property Rights relating thereto.
You
may choose to or we may invite you to submit Feedback. By submitting any
Feedback, you agree that your disclosure is gratuitous, unsolicited and without
restriction and will not place Mindwrite AI under any fiduciary or other
obligation, and that we are free to use the Feedback without any additional
compensation to you, and/or to disclose the Feedback on a non-confidential
basis or otherwise to anyone. You further acknowledge that, by acceptance of
your submission, Mindwrite AI does not waive any rights to use similar or
related ideas previously known to Mindwrite AI, or developed by its employees,
or obtained from sources other than you. If you or any of your employees,
contractors, or agents sends or transmits Feedback, we are free to use such
Feedback irrespective of any other obligation or limitation between you and us
governing such Feedback. All Feedback is and will be treated as
non-confidential. You hereby assign to us on your behalf, and shall cause your
Authorized Users to assign, all right, title, and interest in, and we are free
to use, without any attribution or compensation to you or any third party, any
ideas, know-how, concepts, techniques, or other Intellectual Property Rights
contained in the Feedback, for any purpose whatsoever, although we are not required
to use any Feedback.
(c) DMCA Notice. Since we respect
artist and content owner rights, it is Mindwrite AI’s 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 Services, please notify Mindwrite
AI’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:
1. An electronic or physical signature of a person authorized to act on
behalf of the copyright owner; 2. Identification of the copyrighted work that
you claim has been infringed; 3. Identification of the material that is
claimed to be infringing and where it is located on the Services; 4.
Information reasonably sufficient to permit Mindwrite AI to contact you, such
as your address, telephone number, and, e-mail address; 5. A statement that you
have a good faith belief that use of the material in the manner complained of
is not authorized by the copyright owner, its agent, or law; and 6. A
statement, made under penalty of perjury, that the above information is
accurate, and that you are the copyright owner or are authorized to act on behalf
of the owner.
The
above information must be submitted to the following DMCA Agent: Attn:
Legal Department, Mindwrite AI, Inc. Address: 106
langtree village dr, Ste. 301 Mooresville, NC 28117. Email: hello@mindwrite.ai
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 Mindwrite AI and its
affiliates that your copyrighted material has been infringed. The preceding
requirements are intended to comply with Mindwrite AI’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, Mindwrite AI has adopted a
policy of terminating, in appropriate circumstances, Users who are deemed to be
repeat infringers. Mindwrite AI may also at its sole discretion limit access to
the Services and/or terminate the User Accounts of any Users who infringe any
intellectual property rights of others, whether or not there is any repeat
infringement.
4. Customer
Responsibilities
(a) Acceptable Use Policy. The
Services may not be used for any of the following prohibited activities
(collectively, the “AUP”): (i) copying, distributing, selling, reselling, or
disclosing any part of the Services in any medium, including without limitation
by any automated or non-automated “scraping”; (ii) using any automated system,
including without limitation “robots,” “spiders,” “offline readers,” etc., to
access the Services in a manner that sends more request messages to the Mindwrite
AI servers than a human can reasonably produce in the same period of time by
using a conventional on-line web browser (except that Mindwrite AI grants the
operators of public search engines revocable permission to use spiders to copy
publicly available materials from the Services for the sole purpose of and
solely to the extent necessary for creating publicly available searchable
indices of the materials, but not caches or archives of such materials); (iii)
transmitting spam, chain letters, or other unsolicited email; (iv) attempting
to interfere with, compromise the system integrity or security or decipher any
transmissions to or from the servers running the Services; (v) taking any
action that imposes, or may impose at our sole discretion an unreasonable or disproportionately
large load on our infrastructure; (vi) uploading invalid data, viruses, worms,
or other software agents through the Services; (vii) collecting or harvesting
any personally identifiable information or other personal information,
including account names, from the Services; (viii) using the Services for any
commercial solicitation purposes; (ix) impersonating another person or
otherwise misrepresenting your affiliation with a person or entity, conducting
fraud, hiding or attempting to hide your identity; (x) interfering with the
proper working of the Services; (xi) accessing any content on the Services
through any technology or means other than those provided or authorized by the
Services; or (xii) bypassing the measures we may use to prevent or restrict
access to the Services, including without limitation features that prevent or
restrict use or copying of any content or enforce limitations on use of the
Services or the content therein.
You
will comply with all terms and conditions of this Agreement, all applicable
laws, rules, and regulations, and all guidelines, standards, and requirements
that may be posted on www.Mindwrite.ai from time to time, including the AUP.
(b) Account Use. You are
responsible and liable for all uses of the Services and Documentation resulting
from access provided by you, directly or indirectly, whether such access or use
is permitted by or in violation of this Agreement. Without limiting the
generality of the foregoing, you are responsible for all acts and omissions of
Authorized Users, and any act or omission by an Authorized User that would
constitute a breach of this Agreement if taken by you will be deemed a breach
of this Agreement by you. You shall use reasonable efforts to make all
Authorized Users aware of this Agreement’s provisions as applicable to such
Authorized User’s use of the Services and shall cause Authorized Users to
comply with such provisions.
(c) Passwords and Access Credentials. You
are responsible for keeping your passwords and access credentials associated
with the Services confidential. You will not sell or transfer them to any other
person or entity. You will promptly notify us about any unauthorized access to
your passwords or access credentials.
(d) Third-Party Products. The Services may
permit access to Third-Party Products. For purposes of this Agreement, such
Third-Party Products are subject to their own terms and conditions presented to
you for acceptance within the Services by website link or otherwise. If you do
not agree to abide by the applicable terms for any such Third-Party Products,
then you should not install, access, or use such Third-Party Products. Mindwrite
AI does not endorse or assume any responsibility for any such Third-Party
Products. If you access a Third-Party Product from the Services or share your
Customer Content on or through any third-party website or service, you do so at
your own risk, and you understand that this Agreement and Mindwrite AI’s
Privacy Policy do not apply to your use of such sites. You expressly relieve Mindwrite
AI from any and all liability arising from your use of any Third-Party Products
Third-Party Products, including without limitation Customer Content submitted
by other Users. Additionally, your dealings with or participation in promotions
of advertisers found on the Services, including payment and delivery of goods,
and any other terms (such as warranties) are solely between you and such
advertisers. You agree that Mindwrite AI shall not be responsible for any loss
or damage of any sort relating to your dealings with such advertisers.
5. Fees and Payment
(a) Billing Policies. Certain
aspects of the Services may be provided for a fee or other charge. If you elect
to use paid aspects of the Services, you agree to our Pricing and Payment Terms
available at www.Mindwrite.ai/pricing, as we may update them from time to time.
Mindwrite AI may add new services for additional fees and charges, add or amend
fees and charges for existing services, at any time in its sole discretion. Any
change to our Pricing and Payment Terms shall become effective in the billing
cycle following notice of such change to you as provided in this Agreement.
(b) No Refunds. You
may cancel your Customer Account at any time; however, there are no refunds for
cancellation. In the event that Mindwrite AI suspends or terminates your
Customer Account or this Agreement, you understand and agree that you shall
receive no refund or exchange for any unused time on a subscription, any
license or subscription fees for any portion of the Services, any content or
data associated with your Customer Account, or for anything else.
(c) Free Trials. We or our
third-party service providers may offer free trials to a particular Service. We
or our third-party service provider will automatically bill your payment method
on the later of the day your free trial ends or the day you start your paid
subscription, and on each recurring billing date thereafter, subject to Section
5(d). You will not receive a notice that your free trial has ended and that
payment for your subscription is due. If you wish to avoid charges to your
payment method, you must cancel your subscription prior to midnight Pacific
Standard Time on the last day of your free trial period. If you cancel your
subscription during a free trial, cancellation may be effective immediately.
(d) Automatic Renewal of Subscription Fees. IF
YOU SIGN UP FOR A SUBSCRIPTION, THE CORRESPONDING FEES AT THE RATE AS SET FORTH
IN YOUR USER ACCOUNT AND/OR ON THE CHECKOUT PAGE WILL AUTOMATICALLY RENEW EVERY
MONTH ON A CONTINUOUS BASIS UNLESS AND UNTIL YOU NOTIFY US THAT YOU WANT TO
CANCEL YOUR SUBSCRIPTION. ANY NOTICE OF CANCELLATION MUST BE SUBMITTED ON YOUR
SETTINGS PAGE OR IN WRITING AND SENT TO HELLO@MINDWRITE.AI AND WILL BE
EFFECTIVE IN THE MONTH FOLLOWING THE MONTH YOU PROVIDE US NOTICE. YOU
UNDERSTAND THAT UNLESS AND UNTIL YOU NOTIFY US OF YOUR CANCELLATION, YOUR
SUBSCRIPTION AND ALL CORRESPONDING FEES WILL AUTOMATICALLY RENEW, AND YOU
AUTHORIZE US OR OUR AUTHORIZED THIRD-PARTY PAYMENT PROVIDER (WITHOUT NOTICE TO
YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE APPLICABLE
SUBSCRIPTION FEES AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON
RECORD FOR YOU.
(e) Risk of Loss. All products that
may be purchased from or via the Services are transported and delivered to you
by an independent carrier not affiliated with, or controlled by, Mindwrite AI.
Title to products purchased on the Services, as well as the risk of loss for
such products, passes to you when Mindwrite AI or our supplier delivers these
items to the carrier.
(f) Payment Information; Taxes. We
accept various payment methods through Stripe, including, without limitation,
Mastercard, Visa, and American Express. By using the Services, you agree to be
bound by Stripe’s Services Agreement available at https://stripe.com/us/legal.
All information that you provide in connection with a purchase or transaction
or other monetary transaction interaction with the Services must be accurate,
complete, and current. You agree to pay all charges incurred by users of your
credit card, debit card, or other payment method used in connection with a
purchase or transaction or other monetary transaction interaction with the
Services at the prices in effect when such charges are incurred. You will pay
any applicable taxes, if any, relating to any such purchases, transactions or
other monetary transaction interactions.
6. Confidential
Information
From
time to time, Mindwrite AI and Customer may disclose or make available to the
other party Confidential Information. The receiving party shall not disclose
the disclosing party’s Confidential Information to any person or entity, except
to the receiving party’s employees who have a need to know the Confidential
Information for the receiving party to exercise its rights or perform its
obligations hereunder and who are required to protect the Confidential
Information in a manner no less stringent than required under this Agreement.
Notwithstanding the foregoing, each party may disclose Confidential Information
to the limited extent required (i) to comply with the order of a court or other
governmental body, or as otherwise necessary to comply with applicable law,
provided that the party making the disclosure pursuant to the order shall first
have given written notice to the other party and made a reasonable effort to
obtain a protective order; or (ii) to establish a party’s rights under this
Agreement, including to make required court filings. Each party’s obligations
of non-disclosure with regard to Confidential Information are effective as of
the date such Confidential Information is first disclosed to the receiving
party and will expire five years thereafter; provided, however, with respect to
any Confidential Information that constitutes a trade secret (as determined
under applicable law), such obligations of non-disclosure will survive the
termination or expiration of this Agreement for as long as such Confidential
Information remains subject to trade secret protection under applicable law.
Mindwrite
AI cares about the integrity and security of your personal information.
However, we cannot guarantee that unauthorized third parties will never be able
to defeat our security measures or use your personal information for improper
purposes. You acknowledge that you provide your personal information at your
own risk.
7. Privacy Policy
Mindwrite
AI complies with its Privacy Policy in providing the Services. The Privacy
Policy is subject to change as described therein. By accessing, using, and
providing information to or through the Services, you acknowledge that you have
reviewed and accepted our Privacy Policy, and you consent to all actions taken
by us with respect to your information in compliance with the then-current
version of our Privacy Policy.
8. Warranty
Disclaimer
THE
SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE
SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDWRITE
AI OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED
HEREIN. WITHOUT LIMITING THE FOREGOING, MINDWRITE AI, ITS SUBSIDIARIES, ITS
AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE,
RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE
SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR
SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT RESULTING FROM, OR
DOWNLOADED OR OTHERWISE OBTAINED THROUGH, THE USE OF THE SERVICES IS DOWNLOADED
AND USED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY
ARISING THEREFROM TO THE EXTENT NOT EXPRESSLY SET FORTH OTHERWISE HEREIN,
INCLUDING ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA
THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
FURTHER,
MINDWRITE AI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR
ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE
SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MINDWRITE AI WILL NOT BE A
PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY
PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL
LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION
AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT
APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND
EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
9. Indemnification
Customer
shall defend, indemnify and hold harmless Mindwrite AI and its subsidiaries,
agents, licensors, managers, and other affiliated companies, and their
employees, contractors, agents, officers and directors, from and against any
and all claims, damages, obligations, losses, liabilities, costs or debt, and
expenses (including but not limited to attorney’s fees) arising from: (i)
Customer or Customer’s Authorized Users’ use of and access to the Services,
including any data or content transmitted or received by Customer or Customer’s
Authorized Users; (ii) Customer or Customer’s Authorized Users’ violation of
any term of this Agreement, including without limitation Customer or Customer’s
Authorized Users’ breach of any of the representations and warranties above;
(iii) Customer or Customer’s Authorized Users’ violation of any third-party
right, including without limitation any right of privacy or Intellectual
Property Rights; (iv) Customer or Customer’s Authorized Users’ violation of any
applicable law, rule or regulation; (v) Customer Content or any content that is
submitted via Customer or Customer’s Authorized Users’ User Account including
without limitation misleading, false, or inaccurate information; (vi) Customer
or Customer’s Authorized Users’ willful misconduct; or (vii) any other party’s
access and use of the Services with Customer or Customer’s Authorized Users’
unique username, password or other appropriate security code.
10. Limitations of
Liability
TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MINDWRITE AI BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS,
DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c)
LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION,
DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e)
COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MINDWRITE
AI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR
DAMAGES WERE OTHERWISE FORESEEABLE. UNDER NO CIRCUMSTANCES WILL MINDWRITE AI BE
RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR
OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE
INFORMATION CONTAINED THEREIN.
TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDWRITE AI ASSUMES NO LIABILITY
OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
(II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING
FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR
USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED
THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE
SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE
TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR
OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE
USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE
THROUGH THE SERVICES; AND/OR (VII) CUSTOMER CONTENT OR THE DEFAMATORY,
OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO
EVENT WILL MINDWRITE AI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES,
SUPPLIERS, OR LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL
AMOUNTS PAID TO MINDWRITE AI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH
PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $50.00, WHICHEVER IS
GREATER.
THIS
LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED
ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MINDWRITE
AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS
AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS
WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF
LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
11. Governing Law,
Arbitration, and Class Action/Jury Trial Waiver
(a) Governing Law. You agree that: (i) the
Services shall be deemed solely based in Delaware; and (ii) the Services shall
be deemed a passive one that does not give rise to personal jurisdiction over
us, either specific or general, in jurisdictions other than Delaware. This
Agreement shall be governed by the internal substantive laws of the State of
Delaware, 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, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs
the interpretation and enforcement of the Arbitration Agreement in Section
11(b) and preempts all state laws to the fullest extent permitted by law. If
the FAA is found to not apply to any issue that arises from or relates to the
Arbitration Agreement, then that issue shall be resolved under and governed by
the law of your state of residence. The application of the United Nations
Convention on Contracts for the International Sale of Goods is expressly
excluded. You agree to submit to the exclusive personal jurisdiction of the
federal and state courts located in Delaware 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 a 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 Delaware is the proper and exclusive
forum for any appeals of an arbitration award or for trial court proceedings in
the event that the arbitration provision below is found to be unenforceable.
(b) Arbitration. Read this Section
carefully because it requires the parties to arbitrate their disputes and
limits the manner in which you can seek relief from Mindwrite AI. This
Arbitration Agreement applies to and governs any dispute, controversy, or claim
between you and Mindwrite AI that arises out of or relates to, directly or
indirectly: (a) this Agreement, including the formation, existence, breach,
termination, enforcement, interpretation, validity, or enforceability thereof;
(b) access to or use of the Services, including receipt of any advertising or
marketing communications; (c) any transactions through, by, or using the
Services; or (d) any other aspect of your relationship or transactions with Mindwrite
AI, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”).
The Arbitration Agreement shall apply, without limitation, to all Claims that
arose or were asserted before or after your agreement to this Agreement.
If you
are a new Mindwrite AI user, you can reject and opt-out of this Arbitration
Agreement within 30 days of accepting this Agreement by emailing Mindwrite AI
at hello@mindwrite.ai with your first and last name and stating your intent to
opt-out of the Arbitration Agreement. Note that opting out of this Arbitration
Agreement does not affect any other part of this Agreement, including the
provisions regarding controlling law or in which courts any disputes must be
brought.
For
any Claim, you agree to first contact us at hello@mindwrite.ai and attempt to
resolve the dispute with us informally. In the unlikely event that Mindwrite AI
has not been able to resolve a Claim after sixty (60) days, we each agree to
resolve any Claim exclusively through binding arbitration by AAA before a single
arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect
for AAA (the “Rules”), except as provided herein. In the event of any
conflict between the Rules and this Arbitration Agreement, this Arbitration
Agreement shall control. AAA may be contacted at www.adr.org,
where the Rules are also available. The arbitration will be conducted in the
U.S. county where you live or Delaware, unless you and Mindwrite AI agree
otherwise. If you are using the Services for commercial purposes, each party
will be responsible for paying any AAA filing, administrative and arbitrator
fees in accordance with AAA 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
Services for non-commercial purposes: (i) AAA may require you to pay a fee for
the initiation of your case, unless you apply for and successfully obtain a fee
waiver from AAA; (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. Any judgment on the award rendered by the arbitrator may be
entered in any court of competent jurisdiction. You and Mindwrite AI agree that
the Arbitrator, and not any federal, state, or local court or agency, shall
have exclusive authority to resolve any disputes relating to the
interpretation, applicability, enforceability or formation of this Arbitration
Agreement, including any claim that all or any part of this Arbitration
Agreement is void or voidable. The Arbitrator shall also be responsible for
determining all threshold arbitrability issues, including issues relating to
whether the Agreement, any provision of the Agreement, is unconscionable or
illusory and any defense to arbitration, including waiver, delay, laches,
unconscionability, or estoppel.
Nothing
in this Section shall be deemed as: preventing Mindwrite AI 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; or
preventing you from asserting claims in small claims court, if your claims
qualify and so long as the matter remains in such court and advances on only an
individual (non-class, non-representative) basis.
If
this Arbitration Agreement is found to be void, unenforceable, or unlawful, in
whole or in part, the void, unenforceable, or unlawful provision, in whole or
in part, shall be severed. Severance of the void, unenforceable, or unlawful
provision, in whole or in part, shall have no impact on the remaining
provisions of the Arbitration Agreement, which shall remain in force, or the
parties’ ability to compel arbitration of any remaining claims on an individual
basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if
the Class Action/Jury Trial Waiver is found to be void, unenforceable, or
unlawful, in whole or in part, because it would prevent you from seeking public
injunctive relief, then any dispute regarding the entitlement to such relief
(and only that relief) must be severed from arbitration and may be litigated in
a civil court of competent jurisdiction. All other claims for relief
subject to arbitration under this Arbitration Agreement shall be arbitrated
under its terms, and the parties agree that litigation of any dispute regarding
the entitlement to public injunctive relief shall be stayed pending the outcome
of any individual claims in arbitration.
(c) Class Action/Jury Trial Waiver. WITH
RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED
OR USED THE SERVICES 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 WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE
MORE THAN ONE PERSON’S CLAIMS. YOU AND MINDWRITE AI AGREE THAT THE ARBITRATOR
MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT
NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF
AWARDED MAY NOT AFFECT OTHER MINDWRITE AI USERS. YOU AND MINDWRITE AI FURTHER
AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MINDWRITE AI ARE EACH
WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A
CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER
REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
12. Miscellaneous
(a) Entire Agreement/Severability. This
Agreement, together with any amendments and any additional agreements you may
enter into with Mindwrite AI in connection with the Services, shall constitute
the entire agreement between you and Mindwrite AI concerning the Services.
Except as otherwise stated in Section 11(b), if any provision of
this Agreement is deemed invalid by a court of competent jurisdiction, the
invalidity of such provision shall not affect the validity of the remaining
provisions of this Agreement, which shall remain in full force and effect. The
invalidity, illegality, or unenforceability of any provision herein does not
affect any other provision herein or the validity, legality, or enforceability
of such provision in any other jurisdiction.
(b) Modifications. You acknowledge
and agree that we have the right, in our sole discretion, to modify this Agreement
from time to time, and that modified terms become effective on posting. We will
notify you of material modifications through direct email or visible banner in
the Services. You are responsible for reviewing and becoming familiar with any
such modifications. Your continued use of the Services after the effective date
of the modifications will be deemed acceptance of the modified terms. Mindwrite
AI will provide at least 30 days’ advance notice of changes to any service
level that Mindwrite AI reasonably anticipates may result in a material
reduction in quality or services.
(c) Export Regulation. The Services
utilize software and technology that may be subject to US export control laws,
including the US Export Administration Act and its associated regulations. You
shall not, directly or indirectly, export, re-export, or release the Services
or the software or technology included in the Services to, or make the Services
or the software or technology included in the Services accessible from, any
jurisdiction or country to which export, re-export, or release is prohibited by
law, regulation, or rule. You shall comply with all applicable federal laws,
regulations, and rules, and complete all required undertakings (including
obtaining any necessary export license or other governmental approval), prior
to exporting, re-exporting, releasing, or otherwise making the Services or the
software or technology included in the Services available outside the US.
(d) US Government Rights. Each
of the software components that constitute the Services and the Documentation
is a “commercial product” as that term is defined at 48 C.F.R. § 2.101,
consisting of “commercial computer software” and “commercial computer software
documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if
you are an agency of the US Government or any contractor therefor, you receive
only those rights with respect to the Services and Documentation as are granted
to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48
C.F.R. § 227.7204, with respect to the Department of Defense and their
contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government
customers and their contractors
(e) No Waiver. No waiver of any
term of this Agreement shall be deemed a further or continuing waiver of such
term or any other term, and Mindwrite AI’s failure to assert any right or
provision under this Agreement shall not constitute a waiver of such right or
provision. Any failure to act by us with respect to a breach of this Agreement
by you or others does not constitute a waiver and will not limit our rights
with respect to such breach or any subsequent breaches.
(f) Notices. Unless otherwise
provided for in this Agreement, any notices to us must be sent to our corporate
headquarters at 3001 Bee Caves Road, Suite 100 B, Rollingwood, TX 78746 and
must be delivered either in person, by certified or registered mail, return
receipt requested and postage prepaid, or by recognized overnight courier
service, and are deemed given upon receipt by us. Notwithstanding the
foregoing, you hereby consent to receiving electronic communications from us. Mindwrite
AI may provide notifications, whether such notifications are required by law or
are for marketing or other business-related purposes, to you via email notice,
written or hard copy notice, or through posting of such notice on our website,
as determined by Mindwrite AI in our sole discretion. Mindwrite AI reserves the
right to determine the form and means of providing notifications to our Users,
provided that you may opt out of certain means of notification as described in
this Agreement. Mindwrite AI is not responsible for any automatic filtering you
or your network provider may apply to email notifications we send to the email
address you provide us. You agree that any notices, agreements, disclosures, or
other communications that we send to you electronically will satisfy any legal
communication requirements, including that such communications be in writing.
(g) Assignment. This Agreement,
and any rights and licenses granted hereunder, is personal to you and may not
be assigned or transferred for any reason whatsoever without our prior written
consent and any action or conduct in violation of the foregoing will be void
and without effect. We expressly reserve the right to assign this Agreement and
to delegate any of its obligations hereunder.
Please
contact us at hello@mindwrite.ai with any questions regarding this Agreement.
SOFTWARE AS A SERVICE AGREEMENT
This
SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) is entered into as of the
Effective Date, by and between you (the “Customer”) and Mindwrite AI, Inc. (“Mindwrite
AI”) a Limited Liability Company with offices at 106 Langtree village dr.,
Suite 301, Mooresville, NC 28117. Mindwrite AI and Customer may be
referred to herein collectively as the “Parties” or individually as a “Party.”
The
Parties agree as follows:
1. Definitions
“Affiliate”
of a Party means any entity that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such Party. For purposes of this definition, the “control” of an entity means
the direct or indirect ownership or control of more than 50% of the voting
interests of such entity.
“Beta
Services” means the features and/or functionality of the Services that may
be made available to Customer to try at its option at no additional charge and
which are clearly designated as beta, pilot, limited release, non-production,
early access, evaluation, labs or by a similar description.
“Confidential
Information” means all confidential and proprietary information of a Party
(“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether
orally or in writing, that is either marked or designated as confidential at
the time of disclosure to the Receiving Party, or that a reasonable person
should consider confidential or proprietary given the nature of the information
and the circumstances under which it is disclosed. Mindwrite AI’s Confidential
Information shall include the Mindwrite AI Property and the terms of all Order
Forms. Notwithstanding the foregoing, Confidential Information shall not
include any information that the Receiving Party can show: (i) is or becomes
generally known to the public without breach of any obligation owed to the
Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure
by the Disclosing Party; (iii) was independently developed by the Receiving
Party without reference to any Confidential Information of the Disclosing Party
(excluding patentable subject matter which is not subject to this exclusion);
or (iv) is received from a third party without breach of any obligation owed to
the Disclosing Party.
“Customer
Property” means any content (including text, images, illustrations, charts,
tables and other materials) supplied by Customer to Mindwrite AI, either
directly through the Service or indirectly through the integration with a Third
Party Product.
“Documentation”
means all documentation and other instructional material made available by Mindwrite
AI regarding the use of the Services.
“Effective
Date” means the effective date of the applicable Order Form you have signed
with Mindwrite AI.
“Mindwrite
AI Property” means (i) the Services, (ii) the Documentation, and (iii) all
content and other materials and software supplied by Mindwrite AI in connection
with, or used by Mindwrite AI in providing, any Services.
“Order
Form” means an ordering document for Services purchased from Mindwrite AI
that has been executed hereunder by the Parties and that references this
Agreeement.
“Output”
means the output generated and returned by the Services based on the inputs to
the Services provided by Customer and its Users. For the avoidance of
doubt, “Services” shall not be deemed to include the Output.
“Personal
Data” means any information relating to an identified or identifiable
natural person (‘data subject’) where an identifiable natural person is one who
can be identified, directly or indirectly, in particular by reference to an
identifier such as name, an identification number, location data, an online
identifier or to one or more factors specific to their physical, physiological,
mental, economic, cultural or social identity of that natural person.
“Processing/to
Process/Processed” means any operation or set of operations which is
performed on Personal Data or on sets of Personal Data, whether or not by
automated means, such as collection, recording, organization, structuring,
storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or
combination, restriction, or erasure or destruction.
“Subprocessor”
means any third-party data processor engaged by Mindwrite AI, including Mindwrite
AI’s Affiliates, that receives Customer Property from Mindwrite AI for
Processing on behalf of Customer and in accordance with Customer’s instructions
(as communicated by Mindwrite AI) and the terms of its written subcontract.
“Services”
means the software services and platform provided by Mindwrite AI, including
(i) the web and other user interfaces, applications, and software provided to
Users, and (ii) any modifications, updates, derivative works, optional modules,
custom or standard enhancements, updates, and upgrades to or of any of the
foregoing.
“Subscription
Term” means the subscription period set forth in the applicable Order Form
during which Mindwrite AI agrees to provide the Services to Customer.
“Third
Party Products” means certain third-party applications, systems, or
services used by Customer, but not supplied by Mindwrite AI, that are designed
to interoperate with the Services (for example, third-party ticketing and email
services from which the Services can import Customer Property).
“Users”
means all users that are authorized to access Customer’s account on the
Services.
2. Services
a. Provision of Services. Subject to the
payment of all applicable Fees and for the applicable Subscription Term, Mindwrite
AI hereby grants to Customer a non-sublicensable, non-transferable,
non-exclusive right to access and use the Services in accordance with the terms
and conditions of this Agreement and the applicable Order Form.
b. Platform Guidelines. Customer hereby
acknowledges that it will at all times comply with, and ensure that all of its
Users comply with, the platform guidelines available at www.Mindwrite.ai/legal/platform-guidelines,
which are incorporated by reference herein (the “Platform Guidelines”).
3. Fees and Payment
a. Fees. Customer will pay Mindwrite
AI all fees specified in or otherwise incurred pursuant to an Order Form
(“Fees”) in accordance with this Section 3 and the applicable Order Form. If
Customer adds additional Services during a Subscription Term (a “Subscription
Upgrade”), any incremental Fees associated with such Subscription Upgrade will
be prorated over the remaining period of the then-current Subscription Term and
charged to Customer and due and payable in accordance with Section 3(b). In
addition, unless otherwise set forth in an Order Form, Customer will be deemed
to have executed a Subscription Upgrade with Mindwrite AI if its usage of the
Services exceeds the previously purchased usage levels. In any renewal
Subscription Term of such Order Form, the Fees will reflect any such
Subscription Upgrades. Fees are quoted and payable in United States dollars.
Payment obligations are non-cancellable and Fees paid are non-refundable,
except as otherwise expressly set forth in this Agreement.
b. Invoices and Payment. By providing a
credit card or other payment method accepted by Mindwrite AI (“Payment
Method”) for the Services, Customer agrees that Mindwrite AI is authorized to
charge to the elected Payment Method all applicable Fees when due, and any
other charges Customer may incur in connection with Customer’s use of the
Services. For all purchased Services, the Payment Method will be charged on a
monthly basis or at the interval indicated in the applicable Order Form.
If Mindwrite AI does not collect a Payment Method from Customer at the time of
purchase, Mindwrite AI will invoice Customer for the charges at the email
address on file with Mindwrite AI. Customer will pay all invoiced amounts
within thirty (30) calendar days of the invoice date. Unless otherwise
specified in an Order Form, Customer will pay all Fees on an annual, prepaid
basis. Overdue invoices are subject to a finance charge of 1.5% per month or the
maximum permitted by law, whichever is lower, plus all expenses of collection.
c. Taxes. Customer is solely
responsible for the payment of all taxes, assessments, tariffs, duties, or
other fees imposed, assessed, or collected by or under the authority of any
governmental body arising from Mindwrite AI’s provision of the Services
hereunder (collectively, “Taxes”), except any taxes assessed upon Mindwrite AI’s
net income. If Mindwrite AI is required to directly pay Taxes related to
Customer’s use or receipt of any Services, Customer agrees to promptly
reimburse Mindwrite AI for any amounts paid by Mindwrite AI.
d. Credits. Mindwrite AI may,
at its sole discretion, choose to offer credits for the Services in various
ways, including but not limited to, coupons, promotional campaigns, and referrals
for Mindwrite AI’s services such as training. Mindwrite AI reserves the right
to award credits at its sole discretion. Credits have no monetary or cash value
and can only be used by Customer to offset Customer’s subsequent payments of
Fees for the Services. Credits may only be applied to Fees due for the Services
specifically identified by Mindwrite AI when issuing the credit. Credits can
only be used by Customer and are non-transferable. To the extent that Customer
has been awarded credits, unless the instrument (including any coupon) states
an earlier expiration date, credits shall expire and no longer be redeemable
twelve (12) months from the date the credit was issued.
4. Intellectual Property
Ownership
a. Customer Property. As between
Customer and Mindwrite AI, Customer retains all rights, title, and interest in
and to the Customer Property, including all patent, copyright, trade secret,
trademark or other intellectual property rights embodied in or related to the
Customer Property. Except as expressly set out in this Agreement, no right,
title, or license under any Customer Property is granted to Mindwrite AI or
implied hereby, and for any Customer Property that is licensed to Mindwrite AI,
no title or ownership rights are transferred to Mindwrite AI with such
license.
b. Mindwrite AI Property. As between Mindwrite
AI and Customer, Mindwrite AI retains all right, title, and interest in and to
the Mindwrite AI Property, including all patent, copyright, trade secret,
trademark, or other intellectual property rights embodied in or related to the Mindwrite
AI Property. Except as expressly set out in this Agreement, no right, title, or
license under any Mindwrite AI Property is granted to Customer or implied
hereby, and for any Mindwrite AI Property that is licensed to Customer, no
title or ownership rights are transferred to Customer with such license.
c. Licenses to Mindwrite AI. Customer
hereby grants Mindwrite AI a limited, non-exclusive, non-transferable (except
in connection with the permitted assignment of this Agreement or to ), and
royalty-free license to access and use the Customer Property made available to Mindwrite
AI or any of its Affiliates, solely as necessary for Mindwrite AI to (i)
provide the Services to Customer pursuant to this Agreement, and (ii) train the
artificial intelligence models developed by Mindwrite AI and its third-party
service providers to provide the Services, including sharing select portions of
Customer Property to third-party contractors (subject to confidentiality and
security obligations at least as restrictive as this Agreement, with Mindwrite
AI being responsible for all actions and omissions of such contractors),
provided, however, that such Customer Property used for this purpose must be
aggregated and de-identified so that it cannot identify Customer or its Users.
Additionally, Customer grants Mindwrite AI a non-exclusive, revocable license
to use Customer’s trademarks and logos to identify Customer as a subscriber of
the Services; provided that, Customer may revoke such consent at any time in
its sole discretion. By submitting to Mindwrite AI any unsolicited
suggestions, enhancement requests, comments, feedback, or other input relating
to the Services ("Feedback"), Customer and its Users (as applicable)
grant to Mindwrite AI a royalty-free, worldwide, transferable, sublicensable,
irrevocable, perpetual license to use or incorporate such Feedback into the
Services in any manner.
d. License to Customer. Mindwrite AI hereby
grants Customer a limited, non-exclusive, non-transferable (except in
connection with the permitted assignment of this Agreement), and royalty-free
license to access and use the Output made available to Customers or any of its
Affiliates, solely in accordance with the terms of this Agreement.
5. Data Privacy and
Security
a. Hosting and Processing. Unless
otherwise specifically agreed to in writing by Mindwrite AI, Customer Property
may be hosted by Mindwrite AI or its Affiliates, or their respective authorized
third-party service providers, in the United States, the European Economic Area
(“EEA”), or the United Kingdom.
b. Transfer of Personal Data. To
the extent that Personal Data within the Customer Property originates from a
User or End-User in the EEA, as further described in the DPA, Mindwrite
AI will ensure that, pursuant to (i) the EU Regulation 2016/679 and any
applicable national laws made under it; and (ii) the Swiss Federal Act of 19
June 1992 on Data Protection (as may be amended or superseded), if Personal
Data within Customer Property is transferred to a country or territory outside
of the EEA (a “non-EEA country”), then such transfer will only take place if:
(i) the non-EEA country in question ensures an adequate level of data
protection based on a decision by the European Commission; (ii) one of the
conditions listed in Article 46 or 49 of the GDPR (or its equivalent under any
successor legislation) is satisfied; or (iii) the Personal Data is transferred
on the basis of binding corporate rules.
c. Data Processing Agreement. The
Data Processing Agreement with Mindwrite AI (“DPA”) is accessible for review at
Mindwrite AI.ai/legal/dpa. Upon execution of an Order Form by Customer, the DPA
shall be fully incorporated by reference in, and become a part of, this
Agreement.
d. Subprocessors. Customer
acknowledges and agrees that Mindwrite AI may use Subprocessors, who may access
Customer Property, to provide, secure and improve the Services. Mindwrite AI
shall be responsible for the acts and omissions of its Subprocessors to the
same extent that Mindwrite AI would be responsible if Mindwrite AI was
performing the services of each Subprocessor directly under the terms of this
Agreement. A list of all Subprocessors can be found here: https://www.Mindwrite.ai/legal/sub-processors.
e. In-Product Cookies. Whenever Customers
or Users interact with the Services, Mindwrite AI uses First Party Cookies to
collect information to ensure Customers and Users can securely, quickly and
reliably use the Services, and Mindwrite AI’s In-Product Cookie Policy applies.
When Mindwrite AI collects this information, it only uses this data to (i)
provide the Services, or (ii) in aggregate form, and not in a manner that would
identify the Customers or Users personally.
f. Information Security Requirements. Mindwrite
AI will maintain an information security program (including the adoption and
enforcement of internal policies and procedures) designed to (a) secure the
Services and Customer Property against accidental or unlawful loss, access, or
disclosure, (b) identify reasonably foreseeable and internal risks to security
and unauthorized access, and (c) minimize security risks, including through
risk assessment and regular testing. As part of this information security
program, Mindwrite AI shall implement the security measures available at www.Mindwrite.ai/legal/security.
6. Confidentiality
a. Confidentiality. During the term of
this Agreement and for a period of three (3) years thereafter, each Party
agrees to protect the confidentiality of the Confidential Information of the
other Party in the same manner that it protects the confidentiality of its own
proprietary and confidential information of a like kind; provided that a
Receiving Party may disclose Confidential Information of the Disclosing Party
with Disclosing Party’s consent or to its Affiliates, officers, directors,
employees, subcontractors, agents or prospective financing sources or acquirers
who need to know such information in connection with this Agreement and who are
bound by written agreements requiring the protection of such Confidential
Information. This Section 6 shall supersede any non-disclosure agreement by and
between Customer and Mindwrite AI entered prior to the Effective Date that
would purport to address the confidentiality of Confidential Information and
such agreement shall have no further force or effect with respect to either
Party’s Confidential Information.
b. Compelled Disclosure. If the Receiving
Party is compelled by law to disclose Confidential Information of the
Disclosing Party, it shall provide the Disclosing Party with prior notice of
such compelled disclosure (to the extent legally permitted) and reasonable
assistance, at Disclosing Party's cost, if the Disclosing Party wishes to
contest the disclosure.
c. Return of Confidential Information. At
any time upon the request of the Disclosing Party, the Receiving Party will
destroy all Confidential Information of the Disclosing Party, including all
copies thereof and notes and other materials incorporating such Confidential
Information, whether in physical or electronic form; provided, however, (x) Mindwrite
AI, as Receiving Party, shall not be required to delete any Customer
Confidential Information that is licensed to Mindwrite AI pursuant to Section
4(c)(ii) so long as it is aggregated and de-identified so that it cannot
identify Customer or its Users; and (y) the Receiving Party shall not be
required to return or destroy electronic copies that are automatically stored
in accordance with Receiving Party’s generally applicable backup policies and
which are not reasonably accessible by the Receiving Party (“Backup Media”).
All Backup Media shall remain subject to the confidentiality obligations set
forth herein, notwithstanding the expiration or termination of this Agreement,
so long as it remains undeleted.
d. Remedies. If the Receiving
Party discloses or uses (or threatens to disclose or use) any Confidential
Information in breach of this Section 6, 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 are inadequate.
7. Warranties;
Disclaimers
a. Mutual Warranties. Each Party represents
and warrants that it has the legal power and authority to enter into this
Agreement.
b. Mindwrite AI Warranties. Mindwrite
AI warrants to Customer that the Services purchased by Customer will, in all
material respects, perform in accordance with the applicable portions of the
Documentation. This warranty shall not apply to non-conformities, errors, or
problems caused by acts within the control of Customer or any of its Users, or
arising from Customer’s negligence or improper use of the Services, from
unauthorized modifications made to the Services, from use of the Services in an
unsupported operating environment or manner, or that arises from Customer’s or
any third party’s software or systems (including Third Party
Products).
c. Customer Warranties. Customer warrants
that it will not use the Services for unlawful purposes or in a manner that
infringes or otherwise violates the rights of any third party.
d. Disclaimer. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, (1) THE SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY
ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY
KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3)
EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS,
REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION,
ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE, AND (4) MINDWRITE AI’S LIABILITY UNDER ANY IMPLIED OR
STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH
CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING
THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. IN
ADDITION, MINDWRITE AI DOES NOT GUARANTEE THERE WILL BE NO LOSS OR CORRUPTION
OF CUSTOMER PROPERTY STORED BY MINDWRITE AI. CUSTOMER AGREES TO MAINTAIN
A COMPLETE AND ACCURATE COPY OF ALL CUSTOMER PROPERTY IN A LOCATION INDEPENDENT
OF THE SERVICES.
e. Beta Services. Mindwrite AI may
make Beta Services available to Customer at no charge, and Customer may choose
to try such Beta Services at its sole discretion. Beta Services are intended
for evaluation purposes and not for production use, are not supported, and may
be subject to additional terms that will be presented to Customer. Beta
Services are not considered “Services” under this Agreement for purposes of
Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by Mindwrite
AI); however, all restrictions, Mindwrite AI’s reservation of rights,
Customer’s obligations concerning the Services, and Customer’s use of any Third
Party Products shall apply equally to Customer’s use of Beta Services. Unless
otherwise stated, any Beta Services trial period will expire upon the earlier
of one year from the trial start date or the date otherwise specified in
writing by Mindwrite AI. Mindwrite AI may discontinue Beta Services at any time
in its sole discretion and may never make them generally available. Beta
Services are provided “AS IS'' with no express or implied warranty and are
outside the scope of Mindwrite AI’s indemnification obligations.
8. Indemnification
a. Indemnification by Mindwrite AI. Mindwrite
AI will defend and pay Customer, its employees, directors and officers (the
“Customer Indemnified Parties”) from and against any and all costs, damages and
expenses (collectively, “Losses”), suffered or incurred by any Customer
Indemnified Party, as a result of any claim brought by a third party (“Third
Party Claim”) against a Customer Indemnified Party alleging that the Services
in accordance with the terms and conditions of this Agreement infringes any
patent, copyright, trademark or trade secret right of such third party (an
“Infringement Claim”). Without limiting the foregoing, in the event that any
portion of the Services is likely to, in Mindwrite AI’s sole opinion, or does
become the subject of an Infringement Claim, Mindwrite AI may, at its option
and expense: (i) procure for Customer the right to continue using the allegedly
infringing item, (ii) substitute a functionally equivalent non-infringing
replacement for such item, (iii) modify such item to make it non-infringing and
functionally equivalent, or (iv) terminate the Agreement and any outstanding
Order Forms and refund to Customer prepaid unused Fees for the infringing
items. Mindwrite AI shall have no liability for any Infringement Claim to the
extent arising from: (1) Customer’s use or supply to Mindwrite AI of any
Customer Property; (2) use of the Services in combination with any software,
hardware, network, or system not supplied by Mindwrite AI if the alleged
infringement relates to such combination; (3) any modification or alteration of
the Services (other than by Mindwrite AI); (4) the Output; or (5) Customer’s
violation of applicable law or third party rights.
b. Indemnification by Customer. Customer
will defend and pay Mindwrite AI, its employees, directors and officers (the “Mindwrite
AI Indemnified Parties”) from and against any and all Losses, suffered or
incurred by any Mindwrite AI Indemnified Party, arising from any Third Party
Claim against a Mindwrite AI Indemnified Party (i) alleging that any Customer
Property or Customer’s use of the Services beyond the license granted in this
Agreement infringes, violates or misappropriates any patent, copyright,
trademark or trade secret right of any third party or (ii) arising from
Customer’s breach of the Platform Guidelines.
c. Indemnification Conditions. The
Parties’ obligations under this Section 8 are contingent upon the indemnified
party (i) giving prompt written notice to the indemnifying party of any claim
subject to indemnification under this Section 8, (ii) giving the indemnifying
party sole control of the defense or settlement of the claim, and (iii)
cooperating in the investigation and defense of such claim(s). The indemnifying
party shall not settle or consent to an adverse judgment in any such claim that
adversely affects the rights or interests of the indemnified party without the
prior express written consent of the indemnified party, which shall not be
unreasonably withheld. The rights and remedies set forth in this Section 8 are
the sole obligations of the indemnifying party and exclusive remedies available
to the indemnified party in the event of an applicable Third Party Claim.
9. Limitation of
Liability
a. Limitation of Liability. EXCEPT
FOR CLAIMS UNDER SECTIONS 6 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY
OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND AMOUNTS
ACCRUED BUT NOT YET PAID FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS
PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING
LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF
THEIR ESSENTIAL PURPOSE.
c. Exclusion of Consequential and Related Damages. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY
HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST
PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE,
OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR
ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD
PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE, OR INCONVENIENCE IS CAUSED BY THE
FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
10. Term and Termination
a. Term of Agreement. This Agreement
commences on the Effective Date and shall remain in effect until terminated in
accordance with Section 10(c).
b. Term of Subscriptions. Customer’s access
to the purchased Services shall commence on the start date specified in the
relevant Order Form and continue for the Subscription Term specified on such
Order Form. At the expiration of each Subscription Term, the Subscription Term
for all purchased Services will automatically renew for the same period as the
renewing Subscription Term, unless either Party elects to not renew by
notifying the other Party in writing at least 60 days before such renewal (or
at anytime before the renewal date, if the expiring Order Form provides for a
month-to-month subscription). Except as otherwise specified in a written notice
sent to Customer at least 60 days prior to a renewal (or 30 days, if the
expiring Order Form provides for a month-to-month subscription), Mindwrite AI’s
per-unit pricing for any renewal Subscription Term shall not increase by more
than the greater of (i) five percent (5%) or (ii) the increase in the Consumer
Price Index (CPI), in each case, over the renewing Subscription Term. Any
introductory or temporary discount offered in a previous Subscription Term does
not apply for a renewal Subscription Term. For the avoidance of doubt, the
foregoing caps on price increases shall not apply to renewals in which a
Customer is transitioning from a month-to-month subscription to a longer
subscription.
c. Termination. Either Party may
terminate this Agreement and/or any Order Form by providing written notice to
the other Party in the event the other Party materially breaches any of its
duties, obligations or responsibilities under this Agreement and fails to: (i)
cure such breach within thirty (30) days after receipt by the breaching Party
of written notice specifying the breach, or (ii) if the breaching Party is
incapable of curing such breach within thirty (30) days, provide the other
Party with an acceptable plan for curing such breach within ten (10) days after
receipt of such notice and thereafter curing such breach in accordance with
such plan. In addition, a Party may terminate this Agreement by providing
written notice to the other Party if there are no Order Forms in effect for
more than thirty (30) days, continuously.
d. Effect of Termination. Expiration or
termination of one Order Form shall not affect any other Order Form. In the
event of termination of this Agreement, Customer shall cease all use of the
Services.
e. Surviving Provisions. The following
provisions shall survive the termination or expiration of this Agreement for
any reason and shall remain in effect after any such termination or expiration:
Sections 1, 3, 4, 6, 7(d), 8, 9, 10(d), 10(e), 11, and the Platform
Guidelines. Termination or expiration of this Agreement shall not affect any
obligation accrued or arising prior to such termination or expiration.
11. Miscellaneous
a. Relationship. This Agreement
does not create a partnership, franchise, joint venture, agency, fiduciary or
employment relationship between the Parties, and Mindwrite AI will be
considered an independent contractor when performing any Services hereunder.
b. Entire Understanding. This Agreement
(including the DPA (if applicable), the Platform Guidelines, the Information
Security Requirements, and Order Forms, which are incorporated herein by
reference) constitutes the entire agreement between the Parties as to its
subject matter and supersedes all prior proposals, marketing materials,
negotiations, and other written or oral communications between the Parties with
respect to the subject matter of this Agreement. To the extent of any conflict
or inconsistency between the provisions in the body of this Agreement and any
Order Form, the terms of such Order Form shall prevail. Notwithstanding any
language to the contrary therein, all terms and conditions stated in any
Customer purchase order or in any other ordering documentation (excluding Order
Forms) are hereby rejected. Such terms will not be deemed incorporated into or
form any part of this Agreement, and all such terms or conditions are null and
void.
c. Modification; Waiver. Except for Mindwrite AI’s
modification or update of the Documentation or the Service, or any policies as
necessary to comply with applicable law, rules, and regulations, no
modification of this Agreement, and no waiver of any breach of this Agreement
or right under this Agreement, is legally binding against the other Party
unless in writing and signed or electronically accepted by both Parties.
d. Governing Law; Venue. The parties hereto
agree that any dispute, claim, or controversy arising out of or relating to
this Agreement or the breach, termination, enforcement, interpretation, or
validity hereof or thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, shall be determined by final and
binding arbitration in Austin, Texas (except for an action for interim
equitable relief otherwise permitted under this Agreement and/or unless
otherwise agreed by the parties), before a sole arbitrator, in accordance with
the laws of the State of Delaware. The arbitration shall be administered by
JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and
Procedures; provided, however, if the Parties mutually elect, the arbitration
can be administered by JAMS pursuant to its Streamlined Arbitration Rules and
Procedures instead of its Comprehensive Arbitration Rules and Procedures. The
arbitrator’s decision shall be reduced to writing, signed by the arbitrator,
and mailed to each of the parties and their legal counsel. All decisions of the
arbitrator shall be final and binding. The arbitrator or a court of appropriate
jurisdiction may issue a writ of execution to enforce the arbitrator’s
judgment. Judgment may be entered upon such a decision in accordance with
applicable law in any court having jurisdiction thereof. The Parties will pay
their own costs (including, without limitation, attorneys’ fees) and expenses
in connection with such arbitration.
e. Assignment. Neither Party may
assign any of its rights or obligations hereunder, whether by operation of law
or otherwise, without the prior express written consent of the other Party,
which consent (1) may not be unreasonably withheld, and (2) will be deemed to have
been given if the other Party fails to respond to the requesting Party’s
written notice of intent to assign within fourteen (14) days of receipt of such
notice; provided, however, a Party may assign this Agreement in its entirety,
together with all rights and obligations hereunder, without consent of the
other Party, in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets related to
this Agreement. Any attempt by a Party to assign its rights or obligations
under this Agreement in breach of this section shall be void and of no effect.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
the Parties, their respective successors and permitted assigns.
f. Notices. Except for
notification methods expressly permitted under the Platform Guidelines, all
notices, requests, consents, claims, demands, waivers, and other communications
hereunder (each, a “Notice”) must be in writing and addressed to the Parties at
the addresses set forth on the first page of this Agreement (or to such other
address that may be designated by the Party giving Notice from time to time in
accordance with this Section). All Notices must be delivered by personal
delivery, nationally recognized overnight courier (with all fees pre-paid),
facsimile, or email (with confirmation of transmission), or certified or
registered mail (in each case, return receipt requested, postage pre-paid).
Except as otherwise provided in this Agreement, a Notice is effective only: (i)
upon receipt by the receiving Party, and (ii) if the Party giving the Notice
has complied with the requirements of this Section.
g. Anti-Corruption. Customer acknowledges
and agrees that it has not received or been offered any illegal bribe, kickback,
payment, gift, or thing of value from any Mindwrite AI employees, agent or
representative in connection with this Agreement, other than reasonable gifts
and entertainment provided in the ordinary course of business. Customer will
promptly notify Mindwrite AI if it offers or receives any such improper payment
or transfer in connection with this Agreement.
h. Force Majeure. Except for the
performance of a payment obligation, neither Party shall be liable under this
Agreement for delays, failures to perform, damages, losses or destruction, or
malfunction of any equipment, or any consequence thereof, caused or occasioned
by, or due to fire, earthquake, flood, water, the elements, labor disputes or
shortages, utility curtailments, power failures, explosions, civil disturbances,
governmental actions, epidemics, shortages of equipment or supplies,
unavailability of transportation, acts or omissions of third parties, or any
other cause beyond its reasonable control. In the event any of the foregoing
events results in Mindwrite AI not being able to provide the Services for a
period of more than thirty (30) days, then either Party may terminate the
Agreement upon written notice to the other Party.
i. Export Control. The Service and
related technical data and services (collectively, "Controlled
Technology") may be subject to the import and export laws of the United
States, specifically the U.S. Export Administration Regulations (EAR), and the
laws of any country where Controlled Technology is imported or re-exported.
Customer agrees to comply with all applicable export and re-export control laws
and regulations and will not export or re-export any Controlled Technology in
contravention to U.S. law, nor to any prohibited country, entity, or person for
which an export license or other governmental approval is required. All
Controlled Technology is generally prohibited for export or re-export to Cuba,
North Korea, Iran, Syria, Sudan, and any other country subject to relevant
trade sanctions.
j. Severability. If any provision of
this Agreement is held by a court of competent jurisdiction to be contrary to
law, the provision shall be modified by the court and interpreted so as best to
accomplish the objectives of the original provision to the fullest extent
permitted by law, and the remaining provisions of this Agreement shall remain
in effect.