Mindset Terms and Conditions

This MINDSET APPLICATION LICENCE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Mindset, LLC (“Mindset”) shall license certain Mindset mobile, desktop and web applications. Each customer that has agreed to license the Application shall be referred to as the “Licensee”.

BY DOWNLOADING OR PURCHASING, THE LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENESEE SHOULD NOT USE THE APPLICATION IF THEY DON’T AGREE WITH THIS AGREEMENT. USE OF THE APPLICATION SHALL CONSTITUTE LICENSEE’S ACCEPTANCE OF THE AGREEMENT.

1. Grant of License.MindSet hereby grants to Licensee a limited, non-transferable, non-exclusive, revocable license to use the Software described on the Mindset order form (the “Order Form”). The software described in the Order Form shall be referred to as the “Software”. The Order Form shall also describe the term of the license granted Licensee to use the Software, the license fee for the Software and any special terms and conditions related to such Software.
2. Limitations to License; Equipment.
3. Ownership Rights.Except for the limited license granted to Licensee in Section 1 above, MindSet retains exclusive ownership and all right, title and interest in and to the Software.
4. Restrictions.Except as expressly permitted by this Agreement, the Licensee shall not: (i) grant sublicenses to, sell, assign, give or otherwise transfer the Software or its rights thereto, in whole or in part; (ii) modify, disassemble, decompile, reverse engineer, or otherwise re-create the Software, in whole or in part; (iii) copy or otherwise reproduce the Software, in whole or in part; (iv) disclose, divulge, or otherwise make available the Software, in whole or in part, to any third party; (v) develop software, products or services offerings similar to the Software; (v) disclose to any third party the payment terms agreed to by MindSet and Licensee under this Agreement; (vi) create internet “links” to the Application or “frame” or “mirror” the Application; and (vii) to the extent that the Application is provided on a software as a service basis: (A) interfere with or disrupt the integrity or performance of the Application; or (B) attempt to gain unauthorized access to the Application or its related systems or networks.
5. Publicity.MindSet may during the term of this Agreement list the Licensee as a customer using the Software without the prior written consent of the Licensee.
6. Equipment and Services.In order to use the Software, Licensee must acquire and maintain, all at its own cost and expense, that computer hardware, software and related services further described in the Order Form (collectively the “Licensee Required Materials”). Licensee shall be solely responsible for the operation, use, support, maintenance and/or any warranty issues related to the Licensee Required Materials.
7. Open Source Software.The Software may make use of or include open-source software code (collectively the “Open-Source Software”), which is not owned, maintained or supported by MindSet. If any Open-Source Code is used or included in the Software, such use is subject to the terms and conditions of the individual, corporation or organization providing such Open-Source Software. MindSet shall provide a list of all Open-Source Software used with the Software or included with the Software and information concerning the licensing terms related to such Open-Source Code. The operation or use of the Open-Source is not warranted by MindSet.
8. Data Provided by Licensee.MindSet does not own any data, information, or material that Licensee submits to MindSet in the course of using an Application provided on a software as a service basis (the “Licensee Data”). Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Licensee Data, and MindSet shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Licensee Data. In the event this Agreement is terminated (other than by reason of Licensee breach), Licensee shall have thirty (30) days to access such Application solely to export their Licensee Data. Upon termination for breach, Licensee’s access or use to the Licensee Data immediately ceases, and MindSet shall have no obligation to maintain or forward any Licensee Data. Licensee represents and warrants to MindSet that Licensee Data: (i) is original to Licensee or that Licensee has secured the rights to provide and use such Licensee Data; (ii) does not contain any content that is unlawful or invasive of another’s privacy or publicity rights; or (iii) does not contain a virus or other harmful component.
9. Implementation, Support and Training.MindSet will use commercially reasonable efforts to provide the support (during the license term), implementation and training services described in Exhibit B to this Agreement.
10. Warranties, Limitation on Damages, and Indemnification.
11. Generally.MindSet warrants that they have the authority to enter into this Agreement. MindSet also warrants that it is the sole and exclusive owner of any intellectual property provided pursuant to this Agreement, or has a valid right to license such intellectual property, including, without limitation, any software included within such intellectual property, in the manner described in this Agreement.
    b. Software Warranty. MindSet warrants that for a period of 30 days from the date that the Software is first made available by MindSet to Licensee that the Software will perform, in all ways that materially affect the operation, functionality, performance, use, or results thereof, in accordance with the description of the Software set forth on the Order Form (“Warranty Period”).
12. Remedies.If MindSet is in breach of the representations, warranties or agreements in Section 4(b) above during the Warranty Period, and Licensee reports such breach within the Warranty Period, MindSet will, at its sole cost and expense, as Licensee’s sole exclusive remedy, take the following actions to remedy such breach: (i) initiate problem reports to identify causes of problems; and (ii) if necessary, correct errors in and implement modifications to the Software. The warranty set forth in this Section 5 shall not apply to the Licensee Required Materials or Open Source Software. MindSet has no obligation to correct any problems related to or arising from Licensee’s own hardware or other non-Software software, compatibility problems between the Software and Licensee’s hardware and other software or modifications made to the Software without MindSet approval.
13. Licensee Warranties.The Licensee represents and warrants that: (i) it has the power and authority to enter into this Agreement and to perform all of its obligations; (ii) the performance of such obligations will not conflict with or result in a breach of any agreement to which the Licensee is a party or is otherwise bound; and (iii) its performance under this Agreement, and its use of the Application, shall comply with all applicable laws, rules, regulations and policies.
14. No Other Warranties.EXCEPT AS EXPRESSLY PROVIDED FOR THIS SECTION 4, MINDSET MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. Limitation on Damages.EXCEPT FOR THOSE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 4(g) BELOW, IN NO EVENT SHALL (i) A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF THIS AGREEMENT; OR (ii) THE LIABILITY OF ONE PARTY TO THE OTHER PARTY EXCEED THE LICENSE FEES PAID BY LICENSEE TO MINDSET DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THAT THE CLAIM OR DAMAGE AROSE.
16. Indemnification.
17. Licensor.MindSet shall indemnify and hold the Licensee and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (A) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; or (B) a claim, which if true, would constitute a violation by MindSet of its warranties set forth in Section 4(a) above.
18. Licensee.The Licensee shall indemnify and hold MindSet, its licensors and each such party’s parent organizations, subsidiaries, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (A) a breach by the Licensee of the payment provisions of Exhibit A; or (B) the Licensee’s breach of Sections 3(b), 3(d) or 3(f) above.
    iii. Process. The party seeking indemnification shall (A) promptly give written notice of the claim to the other party; (B) give the party providing indemnification sole control of the defense and settlement of the claim (provided that the party providing indemnification may not settle or defend any claim unless it unconditionally releases the other party of all liability); and (C) provide to the party providing indemnification all available information and assistance.
19. Termination.
20. Termination for Cause.Either party may terminate this Agreement in the event that the other party breaches any of its obligations and fails to cure such breach within thirty (30) days written notice of such breach. Such termination revokes and terminates, on the effective date of such termination, Licensee’s right to use the Software and any obligation of MindSet to provide further services under this Agreement.
21. Termination Obligations and Survival.Upon expiration of the term or termination of this Agreement, to the extent that MindSet has made available to Licensee a copy of the Software, Licensee shall promptly remove the Software from all computers used to host or operate the Software, return to MindSet the Software (including all copies) and certify to MindSet that the Software has been so removed and returned. In addition, Licensee shall provide MindSet, within five (5) business days of MindSet’s request, with access to the server or network that the Software was hosted or operated to verify Licensee’s compliance with this section. Sections 2(b), 2(f), 4(f), 6 and 7 of this Agreement shall survive expiration of the term or termination of this Agreement.
22. General
23. Governing Law.This Agreement and the services provided hereunder shall be governed by the laws of the State of Minnesota (regardless of that state’s principles of conflicts of law). Any action brought to enforce the parties’ rights and obligations under this Agreement shall be brought in the state or federal courts in Hennepin County, Minnesota.
24. Relationship of Parties.Nothing in this Agreement creates any actual or apparent agency, partnership, franchise, or relationship of employer and employee between the parties.
25. Entire Agreement; Amendment.This Agreement, along with the applicable Order Form, all of which are hereby incorporated by reference, shall constitute the entire understanding and agreement between the parties with respect to the subject matter hereof. Any prior representations are superseded and cancelled by this Agreement. This agreement may be modified only upon the expressed written consent of both parties.
26. Severability; Reformation.No determination by any court, governmental body or otherwise that any provision of this Agreement or any amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (i) any other provision thereof, or (ii) such provision in any circumstance not controlled by such determination.
27. No Waiver.Any waiver under this Agreement must be set forth in a written document signed by the party granting such waiver. The waiver of any breach or violation of any term or condition hereof shall not affect the validity or enforceability of any other term or condition. The wavier by any party of a breach by any other party shall not operate or be construed as a waiver of any other or subsequent breach.
28. No Assignment; Binding Effect.Neither party may assign its rights or obligations under this Agreement without the express written consent of the other. Any assignment in violation of this provision will be void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the general restrictions set forth in this Section, MindSet may assign this Agreement in the case of a merger, acquisition, divestiture, consolidation, or corporate reorganization (whether or not MindSet is the surviving entity) or in the case of MindSet’s sale of all, or substantially all, or the assets of the company.
29. Audit Right.Upon reasonable notice to the Licensee, and during regular business hours, MindSet shall, at MindSet’s expense, have the right to audit the books (no more than once during calendar year) and records of the License in order to verify the Licensee’s compliance with the terms and conditions of this Agreement. To the extent that such audit reveals that the Licensee’s use of the Software is not consistent with this Agreement, Licensee agrees to (i) pay to MindSet, within thirty days of notice, the then current license fee for all concurrent users in excess of the number of concurrent users listed in the Order Form (if licensed on annual term basis, Licensee shall pay the fee for each year that the number of licenses exceeded the number of concurrent users in the Order Form; and (ii) reimburse MindSet for the reasonable cost of performing the audit.
30. Notices.All notices given pursuant to the terms of this Agreement must be given in writing and delivered by hand, or by FedEx or DHL. The notice shall be deemed given upon delivery. Notices given to MindSet shall be sent or delivered to the address noted in the “Contact” section of the MindSet website (www.mindset.com/contact). Notices given to Licensee shall be sent or delivered to the address given by Licensee on the Order Form.