By visiting this web site and ordering, subscribing to, or purchasing any one or more of the products or services made available on this web site (individually or in any combination, the “Products and Services”), you agree to the terms and conditions stated below (the “Terms”) with respect to each of the Products and Services you obtain. By agreeing to the Terms, you represent that you are 18 years of age or older, and that if you are entering into this agreement on behalf of any legal entity, that you are duly authorized to do so. As used in the terms, “you” and “your” refer to you as an individual and to any corporation or organization you represent.

mindSHIFT Technologies, Inc. a Delaware corporation, operates the mindshiftonline web site, and may revise the Terms, product offerings, or pricing at any time. mindSHIFT Technologies may, but shall not be obligated to, notify its customers of changes to the Terms. Your use of any of the Products and Services after any such revision constitutes your agreement to the Terms, as revised, with respect to each of the Products and Services you use.

The Products and Services are offered solely to users who agree to the Terms. The Terms include the mindshiftonline Privacy Policy, which is posted at http://www.mindshiftonline.com/privacy-policy.xhtml (the “Privacy Policy”). It is your responsibility to keep mindSHIFT Technologies notified of any changes to your e-mail address or other contact information. mindSHIFT Technologies uses this information to notify you of developments concerning the Products and Services you use. Billing and contact information may be updated at any time directly through the mindSHIFT Technologies Control Panel or by contacting mindSHIFT Technologies' Support department at Support@mindshiftonline.com.

Payment

You agree to pay mindSHIFT Technologies: (a) for each of the Products and Services you use according to these Terms and the fee information that appeared on the pricing page for each of those respective Products and Services on the day you became a customer; and (b) (i)all taxes and surcharges on those Products and Services, excluding taxes based on mindSHIFT’s income; or (ii) provide mindSHIFT with proof of your tax-exempt status, in a form reasonably satisfactory to mindSHIFT.

Customers are responsible for keeping billing information up to date. Your account may be suspended if mindSHIFT Technologies is not able to process your payment for Products and Services you obtained using credit card or other payment information previously provided. You can review and update your billing information through the "Edit Billing Details" link in the Control Panel. If your account is suspended due to non-payment, you will be required to pay the entire balance of unpaid fees for services rendered due, plus an additional 6.5% of the total balance due prior to your account being re-enabled.

If your check for payment of service fees is not honored for any reason, mindSHIFT Technologies may suspend your access to any one or more of the Products and Services until all outstanding fees, and an additional $35.00 returned check fee, are paid. mindSHIFT Technologies reserves the right to accept only US Postal money orders as payment if any check is returned for any reason. We may also require that you pay by credit card for future payments.

mindSHIFT Technologies reserves the right to delete any account, without notice, that has been inactive for three (3) or more months (e.g., login, billing, sending and receiving email). If your account is deleted, you will be required to sign up again in order to regain access to the Products and Services.

Payment Disputes. (i) Provided that it has a good faith basis for doing so, Customer may dispute any item on each invoice issued by mindSHIFT hereunder by sending a written communication to mindSHIFT: (a) specifying each item stated in the invoice that Customer believes may be incorrect; and (b) setting forth Customer’s good faith basis for its position that each item specified may be incorrect. Payment disputes may also be initiated online by submitting the information specified above at Msonline.billing@mindshift.com. (ii) Customer: (a) acknowledges that it may not be feasible to verify facts or circumstances pertinent to billing disputes that are initiated more than thirty (30) days after the issuance of the invoice in question (“Delayed Billing Disputes”); and (b) agrees that mindSHIFT may decline to adjust fees due hereunder on the basis of Customer’s Delayed Billing Disputes. If an invoice contains disputed and undisputed items, Customer shall pay each undisputed item set forth in that invoice in accordance with these terms and conditions. mindSHIFT may construe objections to unpaid invoices made by Customer without the information specified above, without payment of undisputed amounts, or in any manner other than that specified above as a Material Breach of Customer’s obligation to pay for Services as agreed.

No Obligation Trial of Products and Services

If you purchase any one or more of the Products and Services that includes a no-obligation 30 day trial, the full functionality of those Products and Services will be available to you for the first 30 days after you initially establish an account on the mindshiftonline site (the “Trial Period”).

You may cancel at any time during the Trial Period by completing and submitting the secure, web-based cancellation form located at https://www.mindshiftonline.com/cancellation-request.asp. mindSHIFT Technologies will cancel your Products and Services within two (2) business days of its receipt of your completed cancellation form. As of the day on which your Products and Services are terminated (the “Date of Termination”), you will not be liable for any further fees. You will remain responsible for paying all fees arising from your use of the Products and Services prior to and through the date of termination.

If you do not cancel during the Trial Period, you will be obligated to pay fees for the Products and Services you use beginning on your first date of use, and you will be billed retroactively for the fees associated with those Products and Services from the beginning of the Trial Period. In addition, you will be responsible for paying the fees for your use of those Products and Services thereafter.

Cancellation Policy

Unless you have entered into an agreement to access and use one or more Products and Services for a specific contract term, you are free to cancel any one or more of the Products and Services you use at any time. Otherwise, you may cancel Your Products and Services as permitted under your agreement(s).

User Data

mindSHIFT Technologies may disclose information about customers: (a) as permitted under the mindSHIFT Technologies Privacy Statement; (b) to provide, administer, support and manage the Products and Services they purchase; (c) enforce the Terms; and (d) as required by law. You agree that in the event that Company receives a court order, subpoena, or similar legal requirement that purports to compel disclosure of any use you have made of any one or more of the Products and Services, company may comply with that court order or other legal requirement without liability to You, regardless of whether the validity of that legal process is successfully challenged. Company may, but shall have not obligation to use reasonable efforts to notify you of its receipt of any such order, to the extent it may be permitted to do so, and You agree that Company may comply as directed, with no liability to You, until or unless You provide it with a court order modifying or delaying the production requirement.

Use of the Products and Services

1. The Products and Services may be used solely:

1. With as applicable, content, software, content, and data that you own or that you have the right to use with respect to those Products and Services;
2. For your own personal or internal business purposes; and
3. Solely as the Terms permit.

2. Restrictions on the Use of the Products and Services. You may not use any of the Products and Services:

1. In any manner, including by uploading any virus, harmful code, or other functionality, that in Company’s sole judgment, causes or threatens to cause: (i) damage to systems or data owned by Company or any of its customers; or (ii) interference with, or the impairment of, the ability of Company or its vendors to provide any of the Products and Services to You or other customers, which shall include the use of recursive processes or robots;
2. With any defamatory, obscene, threatening, or otherwise unlawful content;
3. Content relating to sexuality or gambling, other than in a medical or public health context, regardless of whether you personally believe that content in not obscene and is lawful;
4. In any manner that violates the intellectual property or other legal rights of any person or entity; or
5. In any manner that is prohibited by law;
6. Permit any person or entity acting on your behalf to do any of the foregoing; or
7. Attempt to do any of the foregoing.

3. You acknowledge and agree that each of the Products and Services: (a) is or reflects intellectual property that, as between you and company, is owned solely and exclusively by Company. You may not (i) download, copy, reproduce, prepare derivative works of, distribute, or publish any code, content or other resource used by Company to provide You with any of the Products or Services or with training or support for any of the Products or Services (each of the foregoing, a “Service Resource”); (ii) reverse engineer, disassemble or decompile any Service Resource; or (iii) take any action to interfere with the operation of any of the Products or Services; (b) except as specifically provided herein, nothing in this agreement provides You with any license or rights of use in or to any of the Products or Services or any other intellectual property of Company or its vendors; and (c) nothing herein transfers to You and rights, title or interests in or to any intellectual property of Company or its vendors.

4. You agree to cooperate with mindSHIFT Technologies as it may reasonably request for the purposes of providing you with the Products and Services you use, and of supporting administering, and managing those Products and Services. Without limiting the generality of the foregoing, you agree to provide mindSHIFT Technologies with the up to date contact information for you or the person you designate in your organization to be mindSHIFT Technologies’ primary contact with you.

5. It is a violation of these Terms for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. A determination of such misuse or fraudulent use shall be in mindSHIFT Technologies’ sole discretion. Further, mindSHIFT Technologies shall report, and you shall waive all rights to privacy, to the extent permitted by law, all such misuses and fraudulent uses as determined by mindSHIFT Technologies in its sole discretion to appropriate government authorities, credit reporting services, financial institutions and credit card companies.

6. It is a violation of these Terms for you or any person or entity acting on your behalf to: (i) breach or attempt to breach the security or firewall systems of mindSHIFT Technologies, its Internet access provider, or its Affiliates; (ii) to sell, lease, traffic in, sublicense, or otherwise transfer to any person or entity your right to access or use any of the Products and Services. If you become aware of such an attempt to breach or actual breach, please notify us at abuse@mindshiftonline. Complaints may be investigated by mindSHIFT Technologies but mindSHIFT Technologies is under no obligation to act or not act with regard to any complaint. Any action taken on a complaint will be at the sole discretion of mindSHIFT Technologies.

7. mindSHIFT Technologies may suspend the operation of any one or more Products and Services or your access to any one or more of the Products and Services if, in its reasonable judgment, it is necessary or useful to do so in order to: (a) to maintain and upgrade those Products and Services; (b) respond to a threat to the stability or security of any one or more of those Products and Services; (b) respond to unusual activity or usage of any one or more of the Products or Services, which shall include, with respect to any virtual server product or service, the storage of more than three (3) terabytes of data; (c) respond to an apparent violation of the Terms; (d) if mindSHIFT Technologies cannot contact you using the contact information you previously provided.

Notice to Users of Virtual Server Offerings Including cloudSHIFT Server

When each virtual server is first configured, mindSHIFT will provide you with an initial password that will allow you to access and control that server (the “Virtual Server Password”). mindSHIFT recommends that you reset the Virtual Server Password as part of your information security program. You may reset the Virtual Server Password for each virtual server by logging onto that virtual server in any manner that you have configured the server to recognize, at any time after that server is configured.

YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY OF EACH OF YOUR VIRTUAL SERVER PASSWORDS AND SHOULD SECURE THE PASSWORD TO EACH OF YOUR VIRTUAL SERVER(S) APPROPRIATELY. Once reset, mindSHIFT will not know or have access to any of your Virtual Server Passwords. mindSHIFT is not able to recover or reset any of your Virtual Server Passwords in the event of loss. mindSHIFT is not able to either log on to a virtual server protected by a lost Virtual Server Password or provide access to data residing on that server.

THE VIRTUAL SERVER SERVICE DOES NOT BACKUP YOUR DATA. Unless you order data backup as an additional service, mindSHIFT does not backup the contents of any of your virtual servers. You are solely responsibility for creating and maintaining backups of the contents of each of your virtual servers.
Your use of any virtual server without providing a facility for backing up its contents is and shall be at your sole risk. mindSHIFT will have no responsibility or liability to you whatever for: (i) any loss of control of your virtual server(s) or loss of any data arising from or related to your loss of any one or more Virtual Server Passwords; or (ii) from your failure to backup the contents of any one or more of your virtual servers or inability to restore data from any backup of a virtual server you create.

Reseller Program

Resellers who sign up clients to become customers of mindSHIFT Technologies are subject to the following additional terms: By signing up a customer to mindSHIFT Technologies, the Reseller represents that it is authorized, on behalf of each customer signed up by that reseller, to enter into the Terms on that customer’s behalf. Each customer who obtains access to any one or more of the Products and Services through a reseller hereby agrees to use those Products and Services in accordance with the Terms.

Reseller shall take every reasonable step to remedy each and every violation of the Terms by each customer it enrolls in any one or more of the Products and Services at the earliest reasonable time after the reseller knows or has reason to know of that violation.

mindSHIFT Technologies is not responsible for the actions, or misrepresentations of resellers. Reseller hereby agrees to indemnify and defend mindSHIFT Technologies from and against any and all claims made by any person or entity arising from or related to: (a) any representation of any one or more of the Products and Services by Reseller other than those expressly authorized by mindSHIFT Technologies, and any other unlawful or illegal act committed by Reseller.

Reseller assumes all responsibility for the billing and technical support for each customer signed up by such reseller. mindSHIFT Technologies may refuse to respond to any request for technical support made by any one or more customer signed up by a reseller. mindSHIFT Technologies reserves the right to revise its reseller program at any time.

Unlimited Size Mailbox

The mindSHIFT® unlimited size mailbox service is provided on an individual, “per mailbox” basis.    Each user’s mail is stored on an individual basis.  Individual mailboxes cannot be used to store more than one user’s email.  The unlimited size mailbox service is not, and should not be used as a compliance archiving service. The unlimited size mailbox service is subject to the technical limitations and the terms and conditions of your email client and other software you use to access your mailbox.

Spam Policy

Due to strict SPAM prevention policies implemented by 3rd party e-mail systems (such as AOL and Hotmail) and our mission to provide reliable e-mail service to our customers, we have a strict policy of zero-tolerance towards any e-mails sent out by a customer that may jeopardize our ability to deliver other customers e-mails to 3rd party mail systems.

Our e-mail hosting service is not designed for sending out large quantities of e-mail marketing messages. Other companies focus on delivering marketing e-mails, such as http://www.ConstantContact.com, http://www.JangoMail.com, and http://www.topica.com. Please note that mindSHIFT does not recommend any of these companies; rather they are listed just as examples.

The sending or facilitation of the sending of bulk e-mail of any kind, other than verifiable, Double Opt-in email is strictly prohibited. Additionally, such Double Opt-in e-mail must be limited to a total of 200 e-mails per calendar month across all users in your account. If you need to send out a larger quantity of e-mails, then you must use a third-party e-mail marketing service such as one listed above. Double Opt-in means that when the user enters their email address on your website, they are sent an email CONFIRMING the opt-in, requiring them to click a LINK to verify that they opted in for your mailing. You may not mail to that email address unless they have confirmed the opt-in. At any time, upon mindSHIFT Technologies’ sole discretion, you may be required to provide documented proof that all of your end-users have CONFIRMED an opt-in. This can be done by storing the IP address, a date-timestamp, and a unique ID for the confirmation. At its sole discretion, mindSHIFT Technologies will determine from all of the evidence whether the email recipients were from a "Double Opt-in" email list and take appropriate action.

Sending unsolicited commercial or bulk e-mail or any other method of distributing electronic messages to recipients who have not requested them, otherwise known as "spam" from our servers, or sending such e-mail with a mindSHIFT Technologies-hosted Web site listed as the contact address, or any use of mindSHIFT Technologies’ services or systems associated in any way with such mailings is strictly forbidden. mindSHIFT Technologies will immediately terminate, without any warning, the account of any customer who conducts these activities. mindSHIFT Technologies also reserves the right to remove customers who send mass/spam news postings, as well as any accounts advertising or distributing software or services that may contribute to news or e-mail spamming. mindSHIFT Technologies reserves the right to report such violations to the proper government authorities, as well as Internet service providers, and Internet control organizations.

Notices

To report spam, please forward the spam with all original headers to support@mindshift.com.
Notice of attempts to breach or actual breaches of such security or firewall systems should be directed to: Support@mindshift.com.

Digital Millennium Copyright Act, 17 U.S.C. § 512(c) Notice

mindSHIFT Technologies has designated the agent identified below to receive notifications of claimed infringement of copyright pursuant to 17 U.S.C. §512(c):
Steven Robinson
Chief Legal Officer
212.253.3530
steven.robinson@mindshift.com
mindSHIFT Technologies
309 Waverley Oaks Road
Waltham, MA 02452.

Termination

mindSHIFT Technologies may terminate this agreement and your access to any one or more of the Products and Services at any time, with or without cause, effective immediately. mindSHIFT Technologies shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Anyone determined by mindSHIFT Technologies to have violated these Terms may be barred from receiving any Products and Services from mindSHIFT Technologies.

Limitation of Liability

YOU AGREE THAT EACH USE YOU MAY MAKE OF ANY ONE OR MORE OF THE PRODUCTS AND SERVICES IS SHALL BE AT YOUR OWN RISK. IN NO EVENT SHALL MINDSHIFT TECHNOLOGIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF: (I) YOUR ACCESS, USE, OR INABILITY TO ACCESS OR USE mindshiftonline, ITS CONTENTS, OR OF ANY ONE OR MORE OF THE PRODUCTS AND SERVICES, INCLUDING ANY DAMAGE TO YOUR SYSTEMS, OR LOSS OR ALTERNATION OF YOUR DATA (II) ANY TOOLS ON mindshiftonline, (III) ANY CUSTOMER CONTENT ON MINDSHIFT TECHNOLOGIES' SERVERS; (IV) ANY ERROR OR OMISSION IN THE CONTENT OR FUNCTIONALITY THEREOF. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS WEB SITE, CONTENT CONTAINED WITHIN THE WEB SITE, OR WITH THE EXTENT TO WHICH SUCH WEBSITES ARE "UP" OR ARE AVAILABLE FOR ACCESS BY YOU OR OTHER USERS OF THE INTERNET, OR OF ANY ONE OR MORE OF THE PRODUCTS AND SERVICES, IS TO STOP USING THE WEB SITE OR THE PRODUCTS AND SERVICES.

Disclaimer of Warranties

THE mindshiftonline WEB SITE, ITS CONTENT, AND THE PRODUCTS AND SERVICES ARE EACH PROVIDED "AS IS" AND “AS AVAILABLE,” WITH NO WARRANTIES OF ANY KIND WHATEVER. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESSED OR, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE EACH EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.

Severability

If any provision of these Terms should, for any reason, be held invalid or unenforceable in any respect, the remainder of these Terms shall be enforced to the full extent permitted by law. A court of competent jurisdiction is hereby empowered to modify the invalid or unenforceable provision to make it valid and enforceable.

Waiver of Jury Trial

Both you and mindSHIFT Technologies hereby agree to waive all respective rights to a jury trial of any claim or cause of action related to or arising out of these Terms. The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. You and mindSHIFT Technologies each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into these Terms and that each will continue to rely on the waiver in their related future dealings. Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver. The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to these Terms. In the event of litigation, these Terms may be filed as written consent to a trial by court.

Complete Agreement; Governing Law

The Terms are the entire agreement between you and mindSHIFT Technologies with respect to their subject matter and supersede any and all other communications, prior, contemporaneous or subsequent The Terms as they apply to you may be modified solely in a written agreement signed by an authorized officer of mindSHIFT Technologies. The Terms and the relationship between you and mindSHIFT Technologies shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, United States of America, without reference to its principles of conflicts of law.

Miscellaneous

These Terms shall bind and benefit the successors and heirs of the parties.

Any dispute arising from or related to your use of this web site or of any one or more of the Products and Services shall be heard in the federal and state court sitting ion and for the Commonwealth of Massachusetts with subject matter jurisdiction over that dispute, and you hereby consent to that court’s exercise of personal jurisdiction over you.