Privacy & Terms

Thanks for using Mindsets’ Education Cloud Products!  As applicable to the specific Cloud Product, if you are being invited or added to a Cloud Product set up by a school, educational institution or other Mindsets customer,

Privacy Policy

This privacy policy applies to users of the Mindsets Cloud Products. If you are a teacher, student, a school or district in California, USA and your school or district has adopted the California Student Data Privacy Agreement (CSDPA), a copy of which was executed by us on June 22, 2018 with the State of California, then the terms of the CSDPA shall apply and be read in conjunction with, and in the event of any inconsistency, shall take precedence over the provisions of this Privacy Statement.  Similarly, the terms of any other Data Privacy Agreement entered into by us with a school, school district or state shall apply and be read in conjunction with this privacy policy and in the event of any inconsistency, the terms of those Data Privacy Agreements shall take precedence over the provisions of this privacy policy. 

Mindsets Learning provides an online, cloud based application comprising a library of lessons and projects, which we call Challenges dedicated to helping students with creative and authentic, real-world problem solving in mathematics, science and STEM/STEAM.  Mindsets Learning is intended for use by teachers and educational organisations, public or private.  We provide our services to teachers and to schools and to students, subject to schools pre-arranging parental permissions for use of the Mindsets Product as part of the school curriculum.  

Mindsets Learning takes the protection of a user’s information very seriously. Our team- including our officers, directors, employees, agents and contractors must have a legitimate business reason to access a user’s personal information and they are required to treat any personal information of Mindsets Learning’s users as confidential information. In addition, Mindsets Learning uses certain technical, operational and physical safeguards designed to preserve the integrity and security of a user’s personal information and other information we maintain in connection with your use of the Mindsets Product.

To protect our user’s privacy and security, Mindsets Learning takes reasonable steps to verify an individual’s identity before granting them access or making corrections to their personal information. Teachers who create classes in Mindsets are able to create a class code which they share with students in order to provide students with the access to the Mindsets Product.  We encourage teachers and students to login through their school issued Google or Microsoft email accounts, using the single sign on service we offer.   Teachers may also direct students to create unique accounts in Mindsets Learning or use the guest login function.  Teachers also have access to students’ progress and content through the website and may from time to time, to access reports. This information is provided to teachers for legitimate classroom and educational teaching purposes and for no other purpose.

When you visit or use our Website, we may collect information including personal information about you and other people that you link to, send messages to or communicate with. We may also collect information about your computers. We ask that any information that identifies you is correct, accurate and up to date and you agree that we can use this information to contact you.

The information we collect will be used to help us monitor who is accessing the Mindsets Product and better understand our users so we can continually improve our educational products and services.

If your school is a registered user of the Mindsets Product, we may also provide your school with reports of your school and of your use if you are participating through your school’s service.  We do not intentionally collect personal information of students under 13 years of age, however, in the event that a minor does create an account without prior parental or teacher consent, Mindsets Learning will take appropriate steps to delete this information.  

There may be instances where we may share certain types of information about our users with other people, for example, to educational researchers however in all instances this information is for the purposes of providing and improving the educational service we provide to teachers and schools. For example, we may share information with our hosting service providers in order to provide our educational users and customers a reliable service. We may also be required to share specific information with government officials to help with regulatory matters, compliance or security.  

We also comply with specific US privacy laws including the Student Online Personal Information Protection Act (SOPIPA) in California, USA. We also intend to comply with similar state laws as they are enacted in other jurisdictions and we actively consult with privacy leaders to review the status of these laws and our operational and legal compliance with them. If you are a school or district leader and require a letter of compliance or a copy of our Data Handling Policy, in order to purchase a Mindsets Learning’s membership, please email hello@mindsets.com with your request. 

For any specific inquiry on these Terms or the Privacy Policy, please contact our Privacy Officer who is also our CEO at marissa@mindsets.com. You may also write to us at (if you elect to write to us, please also forward a copy at the same time by email to hello@mindsets.com):

Mindsets Learning:
Floor 2, 281 Summer Street, Boston, MA, 02210, USA or
Level 3, 41-43 Stewart Street, Melbourne, 3121, Australia

 

 

User Terms & Conditions

Mindsets Learning is an online application developed and owned by Mindsets Learning, located at Level 3, 41-43 Stewart Street Melbourne Victoria 3121 Australia, a wholly owned subsidiary of Mindsets Learning, Inc, of 281 Summer Street, Floor 2, Boston MA 02210 USA.

Mindsets Learning undertakes research and development for the online application and library of Challenges dedicated to helping students with creative, real-world learning in mathematics, science, STEM, entrepreneurship and related disciplines.  

Throughout these Terms we will refer to the user who is a student as a “Student”; to the relevant teacher, parent, coach, legal guardian or responsible adult of that student as the “Responsible Adult”; to the technology, the application and the website, including the Challenges and their content as the “Website”; to the lesson,  or other activity which the Website is used for, as the “Challenges”, the Mindsets Learning Platform as the “Service” and the content created by the Student as “Content”.

Mindsets Learning is owned by, and is a name and trademark with all rights to use and licence retained exclusively by Mindsets Learning.  All intellectual property rights, including copyright in Challenges, the format and design of the Challenges is the property of Mindsets Learning.  Any content created by a Student or Responsible Adult belongs to that person or the school or district associated with the Student. Mindsets Learning does not control the Content created by a Student or Responsible Adult hosted on the Service, nor does it guarantee the accuracy, integrity or quality of such Content.  

The Website enables a Responsible Adult of a Student to view, live track, participate in and review a Student’s Progress and Content of the Challenge which the Student participates. The Responsible Adult may view one or more, or all of the Content accessed or created by the Student.

A Challenge may be activated by the Responsible Adult by creating a Class code and sharing the code with students.  Students may also be automatically assigned a Challenge by a Responsible Adult if the school participates in services which enables Mindsets Learning technology to safely connect with the school’s class rostering system.  If a Challenge is assigned to a student by class code or by rostering integration, it is the responsibility and accountability of that Student’s Responsible Adult to be aware of and consent to the Student’s participation in the Challenge (whether or not the Responsible Adult participates), including viewing information related to the Challenge and the Student’s Content as recorded in the application. Mindsets Learning does not accept any responsibility or liability for notifying any party in relation to Student’s Content or for any acts or omissions of the Student, the Responsible Adult or any other User in relation to the application or the Website.

In all instances, the Responsible Adult is accountable and liable for the acts and omissions of the Student and to ensure the Student is using the Challenge for classroom learning and related purposes. Mindsets Learning does not under any circumstances accept any responsibility for and is in no way liable for any act or omission of a Student, Responsible Adult, other user of a Challenge,  the application or the Website.

The Website may only be used for educational purposes. It must not be sold, distributed or used in any way contrary to these Terms nor may it be used for any illegal, unlawful, immoral or unethical purpose.   Under no circumstances can the content of a Challenge, including the online and downloadable components be copied or shared other than in the normal course of use of the Challenges and the Website, including to circumvent a paid membership to the Service.  Under no circumstances can the Challenges, the Website or the Service or any aspect of the technology or its code base be reverse engineered.

You acknowledge that from time to time we may change, remove or edit any part of the Website, including any data or information recorded on the Website. We may also suspend or delete any user information or any user account at any time if we are of the reasonable belief that the user is or is likely to be in breach of these Terms.

We do not warrant or represent the accuracy or completeness of the Website, any information contained on it or in relation to a Project or that it is suitable for your circumstances. Any condition or warranty which would otherwise be implied in these Terms is hereby excluded.

We will take all reasonable efforts in relation to security and confidentiality of the Website, a student’s Content and of any profile or data stored on the Website. Despite this, we cannot guarantee that no unauthorized access to your account, profile or to Student’s Content will occur or that use of the Website will be secure, error free, uninterrupted or fault free (including virus free). We accept no liability for any loss or damage incurred by you or any other person in relation to these matters.  

To the maximum extent permitted by law, Mindsets Learning accepts no liability for any loss, damage, including loss or profits or indirect, consequential or any other type of loss or damage (including through our negligence) suffered or incurred by you in relation the Website, a Challenge or any Content.

You agree to indemnify us, our employees and agents against any loss or damage suffered or incurred as a result of a breach of an obligation or warranty, wilful misconduct or any negligent act or omission by you, a Student for whom you are responsible for or any other person connected with you.

Please consider our Privacy Policy which forms part of these Terms and applies to you as a Student, Responsible Adult or user of the Website. You are responsible for ensuring the confidentiality and correct and proper use of any login registration and password details required to access the Website.

We may amend these terms and conditions at any time and any amendments shall be effective once they are made available on the Website.


Mindsets Cloud Terms of Service – U.S.

Effective starting: November 6, 2019 

Thanks for using Mindsets’ Education Cloud Products!  These Mindsets Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products.  Please review and sign these Terms at the end of this document.

As applicable to the specific Cloud Product, if you are being invited or added to a Cloud Product set up by a school, educational institution or other Mindsets customer, the User Terms and Privacy Policy on our website governs your access and use of the Cloud Product (and not these Terms).  These Terms are between you and the Mindsets entity that owns or operates the Cloud Product that you are using or accessing (“Mindsets”, “we” or “us”).  “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please refer these Terms to employer’s authorized representative along with the invoice and any other supporting documentation provided to you.

Please note that if you sign up for a Cloud Product using an email address from your employer or another entity, then (A) you will be deemed to represent such party, (B) Your payment of the Invoice or Order or use of the Product (whichever occurs first) will bind your employer or that entity to these Terms and (C ) the word “YOU” in these Terms will refer to your Employer or that entity.

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox),  place an Order, pay for access to the Cloud Product or use or access, or permit any of your employer’s staff to use or access a Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms on behalf of your employer  by clicking “I agree” (or similar button or checkbox) at the time you or any of your employer’s staff members register for a Cloud Product, create a Cloud Product account, or place an Order. For trial periods of the Cloud Product, you also indicate your assent to these Terms by accessing or using the applicable Cloud Product.  

1. What these Terms cover.

1.1. Cloud Products. These Terms govern our Cloud Products, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), the Product-Specific Terms, and your Orders.

2. How Cloud Products are administered.

2.1. Responsibility for End Users.   The Cloud Products are designed for two groups of users: classroom teachers and  students. You may also assign other educators or administrators to have access to reports generated from within the Cloud Products.   You or any classroom teacher subject to these Terms may also request parents or other responsible adults to engage in and supervise student use of the Cloud Products. Each of these users are defined as End Users within the scope of these Terms.

You are responsible for nominating and designating teachers to be the classroom users of the Cloud Products and for all supervision and control of student activity and student generated content. You are also responsible for providing us with the credentials of teachers, administrators and students who are to be licensed End Users. 

In these Terms you are responsible for understanding the settings and controls for the Cloud Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access a Cloud Product, then we are only required to provide the Cloud Products to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Cloud Products. The scope of the Membership license for End Users is defined in the Order or Invoice accompanying these Terms.  The pricing and functionality may vary according to the type of End User. You are responsible for the activities and the content and data generated of all your End Users and compliance with these Terms by all End Users, including for any payment obligations. 2.2. Credentials. You must require that all End Users keep their user IDs and passwords for the Cloud Products strictly confidential and do not share such information with any unauthorized person even if End Users use single sign-on (SSO) for identity management.  You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

3. What’s included in your Cloud Product Membership License; what are the restrictions.

3.1. Access to Cloud Products. During the applicable Membership License Term, you may access and use the Cloud Products (as applicable), for your institution’s educational purposes, subject to and in accordance with; these Terms, the applicable Order, and the Documentation. This includes the right, as part of your authorized use of the Cloud Products, to download and use Mindsets materials associated with the Cloud Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.3.2. Support. During the License Term, we will provide support for the Cloud Products in accordance with our usual product development and support practices.  There may be occasions when the Cloud Product may be under maintenance or may not be in proper working order, in which case we will use reasonable endeavors to inform you and minimize disruption to your organization and your End Users.3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use the Cloud Products for the benefit of any third party; (d) incorporate any Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security.  We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We regularly review and  update these security measures. If you have any questions about our security measures, please write to us at hello@mindsets.com4.2. Privacy. We are serious about how we treat your students’ privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy which you acknowledge.  We may enter into special privacy agreements with schools and school districts, in which case we will abide by those privacy terms, and these terms will form part of these Mindsets Cloud Terms of Service.4.3. Improving Cloud Products. We are always striving to improve the Cloud Products. In order to do so, we use analytics techniques to better understand how our Cloud Products are being used.   We may also ask your End Users to provide feedback through interviews and surveys in order to improve the Cloud Products. For any questions on these techniques, please write to us at hello@mindsets.com4.4. Disclosures by law.  Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. Mindsets strives to balance your privacy rights with other legal requirements.4.5. GDPR Data Processing Addendum. If you are in the EEAU, Switzerland, or are otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you can request and complete the Mindsets Data Processing Addendum which we will provide to you on request.

5. Terms that apply to Your Data.

5.1. Using Your Data to provide Cloud Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Products in order to respond to your support requests.5.2. Your Data Compliance Obligations. You and your use of Cloud Products (including use by your End Users) must comply at all times with these Terms, the Mindsets Acceptable Use Policy as published and updated on our website from time to time and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data (including data submitted by your End Users) to the Cloud Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Products.

5.3. No Prohibited Sensitive Personal Information. You will not submit to the Cloud Products (or use the Cloud Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Cloud Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i)  any claims or disputes brought by your End Users arising out of their use of Cloud Products, (ii) your breach (or alleged breach) of Section 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.5.5. Removals and Suspension. We have no obligation to monitor any content uploaded  by you or your End Users to the Cloud Products or to retain Your Data outside of the paid License period. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive, we may (1) remove Your Data from the Cloud Products or (2) suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Products as described in this Section 5.5.

6. Billing, renewals, and payment.

6.1. Monthly and Annual Plans. Except for trial periods of Cloud Products, or No-Charge Products, all Cloud Products are offered either on a school year Membership basis or pro-rata of a school year Membership basis. 

6.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your Membership prior to expiration of the current Membership Term, your Membership will automatically renew for a further school year Membership Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Cloud Products or contacting our support team. Cancelling your Membership means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates.

6.3. Adding End Users. You may add End Users, or otherwise increase your use of Cloud Products by placing a new Order or modifying an existing Order or by writing to us at hello@mindsets.com. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Membership Term. 

6.4. Non use, reduced use or removing End Users.  You are responsible for the End Users use of the Cloud Products and to ensure its educational efficacy.  We will provide you, your authorized teachers and administrators basic support on how to use the Cloud Products and answer their questions on demand. Any non-use or any reduced use of the Cloud Products by you or End Users will not be refundable in whole or part by us. You are responsible for informing us in writing at hello@mindsets.com if any teacher or administrator is no longer to have access to the Cloud Products. 

6.5. Payment. You will pay all License fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Mindsets by emailing the PO number to hello@mindsets.com. All amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method, or if none are provided, that will may invoice you for renewals, additional users, and any professional development outside the initial scope stated on the invoice, as applicable.

6.6. Delivery. We will onboard your teachers and provide basic training on the use of our Cloud Products with your students. The onboarding/training will commence after we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

7. Taxes not included.

7.1. Taxes. Your License fees under these Terms exclude any taxes or duties payable in respect of the Cloud Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.7.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes, unless otherwise agreed with us. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us with reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

8. No contingencies on other products of future functionality.

You acknowledge that payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Products and Professional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Membership Term), or dependent on any oral or written public comments we make regarding future functionality or features.

9. Evaluations, trials, and betas.

We may offer certain Cloud Products to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify including those on our website and is only permitted during the Membership Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this section, the terms and conditions of these Terms governing Cloud Products, fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you.

You understand that any pre-release and beta Cloud Products, and any pre-release and beta features within generally available Cloud Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Cloud Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this section.  All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. Notwithstanding anything else in these terms, our maximum aggregate liability to you and to any End Users in respect of No-Charge Products will be US$100.

10. IP Rights in the Cloud Products and Feedback. 

Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

11. Confidentiality.

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation.

Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

12. Term and Termination.

12.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Membership Terms.12.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).12.3. Termination for Convenience. You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, and upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Membership Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

12.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Membership Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Membership Term. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

12.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.5 (Payment), 7 (Taxes not included), 9 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 10 (IP Rights in the Cloud Products and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.4 (Warranty Disclaimer), 14 (Limitation of Liability), 15 (IP Indemnification) (but solely with respect to claims arising from your use of Cloud Products during the Membership Term), 17 (Dispute Resolution), and 21 (General Provisions).

13. Warranties and Disclaimer.

13.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

13.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

13.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Membership Term or you may suspend, or we may recommend you suspend, using the Cloud Products.

If you suspend your use of the Cloud Products based on our recommendation to you, we will use reasonable efforts to extend the term of the applicable Membership Term for the time of the suspension (Extended Term).  The Extended Term will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy for any breach of the Performance Warranty, are set forth in this Section 13 (Warranties and Disclaimer).

13.4. Warranty Disclaimer. except as expressly provided in this section 13 (Warranties and Disclaimer), all Cloud Products, support and additional services are provided “as is,” and we and our suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. without limiting our express obligations in these terms, we do not warrant that your use of the cloud products will be uninterrupted or error-free, that we will review your data for accuracy or that we will preserve or maintain your data without loss. you understand that use of the cloud products necessarily involves transmission of your data over networks that we do not own, operate or control, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. we cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. we will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. you may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.

14. Limitation of Liability.

14.1. Consequential Damages Waiver. Except for Excluded Claims (as defined below), neither Party (nor its Suppliers) will have any liability arising out of or related to these terms for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance.

14.2. Liability Cap.  Except for Excluded Claims, each Party’s and its Suppliers’ aggregate liability to the other arising out of or related to these terms will not exceed the amount actually paid or payable by you to us under these terms in the twelve (12) months immediately preceding the claim. 

14.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders or Invoice, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions).

14.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 (Limitation of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

15. IP Indemnification.

We will defend you against any claim brought against you by a third party alleging that the Cloud Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Cloud Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Product in accordance with these Terms; (ii) substitute a substantially functionally similar Cloud Product; or (iii) terminate your right to continue using the Cloud Product and refund any prepaid amounts for the terminated portion of the Membership Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your membership to a Cloud Product in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Product is used in combination with any non-Mindsets product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Products; (5) to any Claim arising as a result of (i) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (ii) any third-party deliverables or components contained with the Cloud Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 15 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

16. Publicity Rights.

We may identify you as an Mindsets customer in our promotional materials. We will promptly stop doing so upon your request sent to hello@mindsets.com.

17. Dispute Resolution.

17.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 17.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 17.1 (Informal Resolution) will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

17.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia, without giving effect to the principles of that State relating to conflicts of laws, and to the non-exclusive jurisdiction of the courts of Victoria.

17.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 17.1 (Informal Resolution) and 17.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

17.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

18. Export Restrictions.

The Cloud Products are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Cloud Products (or any part thereof).

You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.

You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

19. Changes to these Terms.

We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 21.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

19.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.

19.2. Paid Memberships. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Membership Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 6.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Membership Term. If the effective date of such modifications is during your then-current Membership Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion of the applicable Membership Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

19.3. Our Policies. We may modify Our Policies to take effect during your then-current Membership Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Membership Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

20. Changes to the Cloud Products.

You acknowledge that the Cloud Products are on-line, membership-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.

21. General Provisions.

21.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing.

Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Mindsets Learning, Inc, 281 Summer Street, Floor 2, Boston MA 02210 USA  Attn: CEO. A copy must also be sent by email to hello@mindsets.com Your notices to us will be deemed given upon receipt of the posted notice.

21.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

21.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void.

We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

21.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

21.5. Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

21.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

21.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

21.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

22. Definitions.

Certain capitalized terms are defined in this Section 22, and others are defined contextually in these Terms.

“Additional Services” means any paid Professional Development Services or paid service level agreements we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your membership.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Cloud Products” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software we provide as part of the Cloud Products.

“Documentation” means our standard published documentation for the Cloud Products, currently located within the Cloud Products or on our website.

“End User” means an individual you or an Affiliate permits or invites to use the Cloud Products. For the avoidance of doubt:  (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Product.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Products, Support or Additional Services.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a Cloud Product account or otherwise sign up for a Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” and “Invoice” means Mindsets’s applicable quotation, online order and invoice for provision of the Cloud Products to You and your End Users. Orders may also include Additional Services and No-Charge Products.

“Our Technology” means the Cloud Products (including all No-Charge Products), their functionality, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that apply to certain Cloud Products and Additional Services, currently located here.

“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) other personal information subject to regulation or protection under specific laws; (iii) social security numbers, driver’s license numbers or other government ID numbers; or (iv) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Membership Term” means your permitted Membership License period for a Cloud Product, as set forth in the applicable Order.

“Support” means support for the Cloud Products, as specified in the applicable Order.

“Training” means Mindsets-provided training and certification services.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Cloud Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Products.

“Your Materials” means your materials, systems, personnel or other resources.

Mindsets Cloud Terms of Service

Effective starting: October 28, 2019 

Thanks for using Mindsets’ Education Cloud Products!  These Mindsets Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products. 

As applicable to the specific Cloud Product, if you are being invited or added to a Cloud Product set up by a school, educational institution or other Mindsets customer, the Privacy Policy and User Terms and Condition on our website governs your access and use of the Cloud Product (and not these Terms).  These Terms are between you and the Mindsets entity that owns or operates the Cloud Product that you are using or accessing (“Mindsets”, “we” or “us”).  “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please refer these Terms to employer’s authorized representative along with the invoice and any other supporting documentation provided to you. 

Please note that if you sign up for a Cloud Product using an email address from your employer or another entity, then (A) you will be deemed to represent such party, (B) Your payment of the Invoice or Order or use of the Product (whichever occurs first) will bind your employer or that entity to these Terms and (C ) the word “YOU” in these Terms will refer to your Employer or that entity. 

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox),  place an Order, pay for access to the Cloud Product or use or access, or permit any of your employer’s staff to use or access a Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms on behalf of your employer  by clicking “I agree” (or similar button or checkbox) at the time you or any of your employer’s staff members register for a Cloud Product, create a Cloud Product account, or place an Order. For trial periods of the Cloud Product, you also indicate your assent to these Terms by accessing or using the applicable Cloud Product.  

1. What these Terms cover.

1.1. Cloud Products. These Terms govern our Cloud Products, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), the Product-Specific Terms, and your Orders.

2. How Cloud Products are administered.

2.1. Responsibility for End Users.   The Cloud Products are designed for two groups of users: classroom teachers and  students. You may also assign other educators or administrators to have access to reports generated from within the Cloud Products.   You or any classroom teacher subject to these Terms may also request parents or other responsible adults to engage in and supervise student use of the Cloud Products. Each of these users are defined as End Users within the scope of these Terms. You are responsible for nominating and designating  teachers to be the classroom users of the Cloud Products and for all supervision and control of student activity and student generated content. You are also responsible for providing us with the credentials of teachers, administrators and students who are to be licensed End Users. In these Terms you are responsible for understanding the settings and controls for the Cloud Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access a Cloud Product, then we are only required to provide the Cloud Products to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Cloud Products. The scope of the Membership license for End Users is defined in the Order or Invoice accompanying these Terms.  The pricing and functionality may vary according to the type of End User. You are responsible for the activities and the content and data generated of all your End Users and compliance with these Terms by all End Users, including for any payment obligations. 

2.2. Credentials. You must require that all End Users keep their user IDs and passwords for the Cloud Products strictly confidential and do not share such information with any unauthorized person even if End Users use single sign-on (SSO) for identity management.  You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

3. What’s included in your Cloud Product Membership License; what are the restrictions.

3.1. Access to Cloud Products. During the applicable Membership License Term, you may access and use the Cloud Products (as applicable), for your institution’s educational purposes, subject to and in accordance with; these Terms, the applicable Order, and the Documentation. This includes the right, as part of your authorized use of the Cloud Products, to download and use Mindsets materials associated with the Cloud Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.

3.2. Support. During the License Term, we will provide support for the Cloud Products in accordance with our usual product development and support practices.  There may be occasions when the Cloud Product may be under maintenance or may not be in proper working order, in which case we will use reasonable endeavors to inform you and minimize disruption to your organization and your End Users.

3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use the Cloud Products for the benefit of any third party; (d) incorporate any Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security.  We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We regularly review and  update these security measures. If you have any questions about our security measures, please write to us at hello@mindsets.com

4.2. Privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy which you acknowledge.

4.3. Improving Cloud Products. We are always striving to improve the Cloud Products. In order to do so, we use analytics techniques to better understand how our Cloud Products are being used.   We may also ask your End Users to provide feedback through interviews and surveys in order to improve the Cloud Products. For any questions on these techniques, please write to us at hello@mindsets.com

4.4. Disclosures by law.  Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. Mindsets strives to balance your privacy rights with other legal requirements.

4.5. GDPR Data Processing Addendum. If you are in the EEAU, Switzerland, or are otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you can request and complete the Mindsets Data Processing Addendum which we will provide to you on request. 

5. Terms that apply to Your Data.

5.1. Using Your Data to provide Cloud Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Products in order to respond to your support requests.

5.2. Your Data Compliance Obligations. You and your use of Cloud Products (including use by your End Users) must comply at all times with these Terms, the Mindsets Acceptable Use Policy as published and updated on our website from time to time and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data (including data submitted by your End Users) to the Cloud Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Products.

5.3. No Prohibited Sensitive Personal Information. You will not submit to the Cloud Products (or use the Cloud Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Cloud Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.

5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i)  any claims or disputes brought by your End Users arising out of their use of Cloud Products, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.

5.5. Removals and Suspension. We have no obligation to monitor any content uploaded  by you or your End Users to the Cloud Products or to retain Your Data outside of the paid License period. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive, we may (1) remove Your Data from the Cloud Products or (2) suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Products as described in this Section 5.5.

6. Billing, renewals, and payment.

6.1. Monthly and Annual Plans. Except for trial periods of Cloud Products, or No-Charge Products, all Cloud Products are offered either on a school year Membership basis or pro-rata of a school year Membership basis.  

6.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your Membership prior to expiration of the current Membership Term, your Membership will automatically renew for a further school year Membership Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Cloud Products or contacting our support team. Cancelling your Membership means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates.

6.3. Adding End Users. You may add End Users, or otherwise increase your use of Cloud Products by placing a new Order or modifying an existing Order or by writing to us at hello@mindsets.com. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Membership Term.  

6.4 Non use, reduced use or removing End Users.  You are responsible for the End Users use of the Cloud Products and to ensure its educational efficacy.  We will provide you, your authorized teachers and administrators basic support on how to use the Cloud Products and answer their questions on demand. Any non-use or any reduced use of the Cloud Products by you or End Users will not be refundable in whole or part by us. You are responsible for informing us in writing at hello@mindsets.com if any teacher or administrator is no longer to have access to the Cloud Products.  

6.5. Payment. You will pay all License fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Mindsets by emailing the PO number to hello@mindsets.com. All amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method, or if none are provided, that will may invoice you for renewals, additional users, and any professional development outside the initial scope stated on the invoice, as applicable.

6.6. Delivery. We will onboard your teachers and provide basic training on the use of our Cloud Products with your students. The onboarding/training will commence after we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

7. Taxes not included.

7.1. Taxes. Your License fees under these Terms exclude any taxes or duties payable in respect of the Cloud Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.

7.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes, unless otherwise agreed with us. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us with reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

8. No contingencies on other products of future functionality. 

You acknowledge that payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Products and Professional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Membership Term), or dependent on any oral or written public comments we make regarding future functionality or features.

9. Evaluations, trials, and betas. 

We may offer certain Cloud Products to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify including those on our website and is only permitted during the Membership Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this section, the terms and conditions of these Terms governing Cloud Products, fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Cloud Products, and any pre-release and beta features within generally available Cloud Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Cloud Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this section.  All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. Notwithstanding anything else in these terms, our maximum aggregate liability to you and to any End Users in respect of No-Charge Products will be US$100.

10. IP Rights in the Cloud Products and Feedback. 

Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

11. Confidentiality. 

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 16. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

12. Term and Termination.

12.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Membership Terms.

12.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

12.3. Termination for Convenience. You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, and upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Membership Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

12.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Membership Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Membership Term. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

12.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.5 (Payment), 7 (Taxes not included), 9 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 10 (IP Rights in the Cloud Products and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.4 (Warranty Disclaimer), 14 (Limitation of Liability), 15 (IP Indemnification) (but solely with respect to claims arising from your use of Cloud Products during the Membership Term), 17 (Dispute Resolution), and 21 (General Provisions).

13. Warranties and Disclaimer.

13.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

13.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

13.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Membership Term or you may suspend, or we may recommend you suspend, using the Cloud Products. If you suspend your use of the Cloud Products based on our recommendation to you, we will use reasonable efforts to extend the term of the applicable Membership Term for the time of the suspension (Extended Term).  The Extended Term will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy for any breach of the Performance Warranty, are set forth in this Section 13 (Warranties and Disclaimer).

13.4. Warranty Disclaimer. except as expressly provided in this section 13 (Warranties and Disclaimer), all Cloud Products, support and additional services are provided “as is,” and we and our suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. without limiting our express obligations in these terms, we do not warrant that your use of the cloud products will be uninterrupted or error-free, that we will review your data for accuracy or that we will preserve or maintain your data without loss. you understand that use of the cloud products necessarily involves transmission of your data over networks that we do not own, operate or control, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. we cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. we will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. you may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.

14. Limitation of Liability.

14.1. Consequential Damages Waiver. Except for Excluded Claims (as defined below), neither Party (nor its Suppliers) will have any liability arising out of or related to these terms for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance.

14.2. Liability Cap.  Except for Excluded Claims, each Party’s and its Suppliers’ aggregate liability to the other arising out of or related to these terms will not exceed the amount actually paid or payable by you to us under these terms in the twelve (12) months immediately preceding the claim.  

14.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders or Invoice, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions).

14.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 (Limitation of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

15. IP Indemnification. 

We will defend you against any claim brought against you by a third party alleging that the Cloud Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Cloud Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Product in accordance with these Terms; (ii) substitute a substantially functionally similar Cloud Product; or (iii) terminate your right to continue using the Cloud Product and refund any prepaid amounts for the terminated portion of the Membership Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your membership to a Cloud Product in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Product is used in combination with any non-Mindsets product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Products; (5) to any Claim arising as a result of (i) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (ii) any third-party deliverables or components contained with the Cloud Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 15 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

16. Publicity Rights

We may identify you as an Mindsets customer in our promotional materials. We will promptly stop doing so upon your request sent to hello@mindsets.com

17. Dispute Resolution. 

17.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 17.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 17.1 (Informal Resolution) will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

17.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Victoria, Australia, without giving effect to the principles of that State relating to conflicts of laws, and to the non-exclusive jurisdiction of the courts of Victoria. 

17.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 17.1 (Informal Resolution) and 17.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

17.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

18. Export Restrictions. 

The Cloud Products are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Cloud Products (or any part thereof). You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

19. Changes to these Terms. 

We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 21.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

19.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.

19.2. Paid Memberships. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Membership Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 6.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Membership Term. If the effective date of such modifications is during your then-current Membership Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion of the applicable Membership Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

19.3. Our Policies. We may modify Our Policies to take effect during your then-current Membership Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Membership Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

20. Changes to the Cloud Products. 

You acknowledge that the Cloud Products are on-line, membership-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.

21. General Provisions.

21.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Mindsets Learning Pty Ltd, c/o Mindsets, Inc., Level 1, 41-43 Stewart Street, Richmond Victoria Australia 3121 Attn: CEO. A copy must also be sent by email to hello@mindsets.com Your notices to us will be deemed given upon receipt of the posted notice.

21.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

21.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

21.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

21.5. Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

21.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

21.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

21.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

22. Definitions. 

Certain capitalized terms are defined in this Section 22, and others are defined contextually in these Terms.

“Additional Services” means any paid Professional Development Services or paid service level agreements we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your membership.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Cloud Products” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software we provide as part of the Cloud Products.

“Documentation” means our standard published documentation for the Cloud Products, currently located within the Cloud Products or on our website.

“End User” means an individual you or an Affiliate permits or invites to use the Cloud Products. For the avoidance of doubt:  (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Product.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Products, Support or Additional Services.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a Cloud Product account or otherwise sign up for a Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” and “Invoice” means Mindsets’s applicable quotation, online order and invoice for provision of the Cloud Products to You and your End Users. Orders may also include Additional Services and No-Charge Products.

“Our Technology” means the Cloud Products (including all No-Charge Products), their functionality, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that apply to certain Cloud Products and Additional Services, currently located here.

“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) other personal information subject to regulation or protection under specific laws; (iii) social security numbers, driver’s license numbers or other government ID numbers; or (iv) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Membership Term” means your permitted Membership License period for a Cloud Product, as set forth in the applicable Order.

“Support” means support for the Cloud Products, as specified in the applicable Order.

“Training” means Mindsets-provided training and certification services.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Cloud Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Products.

“Your Materials” means your materials, systems, personnel or other resources.