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terms of service

mindSHIFT Technologies Terms of Service

Service
By visiting this Web site and/or using or purchasing goods and/or services from or through this Web site, you agree to be subject to the terms and conditions set forth herein and all applicable laws. We reserve the right to revise these terms and conditions and any product offerings or pricing at any time.

This offer is expressly conditioned upon your acceptance of these Terms of Service ("Terms"). Your use of or access to services provided by mindSHIFT Technologies (as defined below) constitutes your Agreement to these Terms, as in effect from time to time. mindSHIFT Technologies reserves the right to send notices to its customers of changes to the groupSPARK Privacy Policy or these Terms of Service, or of any material changes affecting their service.

It is your responsibility to keep mindSHIFT Technologies notified of any changes to your e-mail address or other contact information to assure that customers receive all such notices from mindSHIFT Technologies, Limited Company. Billing and contact information can be updated directly through the mindSHIFT Technologies Control Panel or by contacting mindSHIFT Technologies’s Support department at Support@groupSPARK.com.

If your account is suspended due to non-payment, for any reason, you will be required to pay the entire balance due plus an additional 6.5% of the total balance due prior to your account being re-enabled.

Customers are responsible for keeping billing information up to date. mindSHIFT Technologies reserves the right to suspend an account if, for any reason, we are not able to process payment through the credit card or payment is outstanding. You can review and correct information through the "Edit Billing Details " link in the Control Panel.

If a check received by us for payment is returned for any reason, mindSHIFT Technologies reserves the right to suspend or cancel service until the payment plus a $35.00 returned check fee, has been received by us. 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.

Refund and Cancellation Policy
Unless specifically noted otherwise for the service that you signed up for, you are free to cancel your service at any time.
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 groupSPARK site (the “Trial Period”).

You may cancel at any time during the Trial Period by completing and submitting the web-based cancellation form located at http://www.groupspark.com/cancel/Cancellation-Request-Resellers.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.

The terms and conditions, Terms of Service, product offerings and pricing are subject to change at any time, without notice

User Data
Pursuant to groupSPARK’s Privacy Policy, mindSHIFT Technologies may disclose to third parties certain aggregate information contained in your Registration Data or related data, provided that, such information will NOT include personally identifying information, except as specifically authorized by you or in the good faith belief that such action is reasonably necessary to comply with the law, legal process, to enforce the Terms, or under any of the other circumstances set forth in the groupSPARK privacy policy, as may be amended from time to time.

mindSHIFT Technologies Service and Content
mindSHIFT Technologies services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States Federal, State or other laws that may apply in this jurisdiction or your local area is prohibited. This may include material that is obscene, threatening, harassing, or libelous, promotes gambling, or is in any way a violation of intellectual property laws. No material may be stored on or transmitted through any servers hosted by mindSHIFT Technologies that would commonly be considered "indecent" or "appealing to the prurient interest" also commonly referred to as "adult" material, nor will any links to such Web sites be tolerated within the content hosted by mindSHIFT Technologies.

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

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 agrees both on behalf of such reseller and on behalf of each customer signed up by such reseller, to mindSHIFT Technologies Terms of Service as in effect from time to time. In the event any customer site is determined by mindSHIFT Technologies to be in violation of these Terms of Service, Reseller shall upon receipt of notice from mindSHIFT Technologies to such effect, take prompt steps to remedy such situation, so that the site is in full compliance with these terms of Service as determined by mindSHIFT Technologies.

mindSHIFT Technologies is not responsible for the actions, or misrepresentations of resellers. Reseller hereby agrees to indemnify mindSHIFT Technologies from and against any and all claims made by any such customer which result from Reseller's misrepresentation, breach of these Terms of Service or other improper actions of such reseller. mindSHIFT Technologies reserves the right to revise its reseller program and these Terms of Service at any time. Changes shall take effect when posted to this site by mindSHIFT Technologies.
Customers who have been signed up by such resellers hereby agree to operate their web sites in accordance with these Terms of Service as in effect from time to time.
Reseller assumes all responsibility for the billing and technical support for each customer signed up by such reseller. mindSHIFT Technologies reserves the right to refuse any inquiry made to technical support by each customer signed up by any reseller.

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. There are 3rd party companies that exclusively focus on delivering marketing e-mails, such as http://www.ConstantContact.com , http://www.JangoMail.com , and http://www.topica.com. Please note that we do 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’s 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 an "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’s 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. To report spam, please forward the spam with all original headers to support@groupSPARK.com.

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’s 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.

It is a violation of these Terms for you to attempt to breach or to breach the security or firewall systems of mindSHIFT Technologies, its Internet access provider, or its Affiliates. If you become aware of such an attempt to breach or actual breach, please notify us at support@groupSPARK.com. Complaints may be investigated by mindSHIFT Technologies but mindSHIFT Technologies is under no obligation to act or not act with regards to any complaint. Any action taken on a complaint will be at the sole discretion of mindSHIFT Technologies. Notice of attempts to breach or actual breaches of such security or firewall systems should be directed to: support@groupSPARK.com.

TERMINATION
mindSHIFT Technologies may terminate this agreement and your access to any or all 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 of Service may be barred from receiving any services from mindSHIFT Technologies.

You may terminate this Agreement at any time by way of the follow process: 1) send an email to Support@groupSPARK.com to request a cancellation form to which we will respond with the form within one business day, and 2) fill out the cancellation form and send it back to us. Once we receive your completed cancellation form, we will cancel all Services and such date will be considered the date of termination.
Termination, by us or you, does not release you of any past or current fees owed for Services rendered through the date of termination.

LIABILITY LIMITATION
YOU AGREE THAT ALL ACCESS AND USE OF mindSHIFT Technologies AND THE CONTENT THEREOF IS 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 YOUR ACCESS, USE OR INABILITY TO ACCESS OR USE (I) mindSHIFT Technologies AND/OR ITS CONTENT, (II) ANY TOOLS OR SERVICES ON mindSHIFT Technologies, (III) ANY CUSTOMER CONTENT ON mindSHIFT Technologies’s SERVERS, OR OUT OF ANY ERRORS OR OMISSIONS IN THE CONTENT THEREOF. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS WEB SITE, SITE-RELATED SERVICES, PRODUCTS, AND/OR 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, IS TO STOP USING mindSHIFT Technologies.

WARRANTY LIMITATION
mindSHIFT Technologies AND ITS CONTENT ARE PROVIDED "AS IS", WITH NO WARRANTIES WHATSOEVER. ALL REPRESENTATIONS AND/OR WARRANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT PARTICULAR LIMITATION TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. ALL CUSTOMERS ACKNOWLEDGE THAT ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCT AND/OR SERVICE AVAILABLE THROUGH mindSHIFT Technologies IS PROVIDED SOLELY BY THE OWNER, ADVERTISER, OR MANUFACTURER OF THAT PRODUCT AND/OR SERVICE, AND NOT BY mindSHIFT Technologies.

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
This offer and your acceptance of these Terms represents the entire agreement between you and mindSHIFT Technologies, Inc., a Delaware corporation, d.b.a. groupSPARK (“groupSPARK”), and supersedes any and all other communications, prior, contemporaneous or subsequent, and any course of performance or course of dealing, except as modified by revisions of this posting by mindSHIFT Technologies or by written agreement by an authorized officer of mindSHIFT Technologies (provided, however, that any such revised posting shall take effect prospectively from the date of the posting). 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.


By visiting this Web site and/or using or purchasing goods and/or services from or through this Web site, you consent to the federal and state court of the Commonwealth of Massachusetts having jurisdiction over you.

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