ACCEPTANCE OF CONTRACT TERMS ----------------------------------------------------------------- The following are terms of a legal agreement between you and Shift Technologies, Inc. ("Shift"). By accessing, browsing and/or using this site ("Site"), you acknowledge that you have read, understood, and agree, to be bound by these terms and to comply with all applicable laws and regulations. If you do not agree to these terms, do not use this Site. The material provided on this Site is protected by law, including, but not limited to, United States Copyright Law and international treaties. This Site is controlled and operated by Shift from its offices within the United States. Shift makes no representation that materials in the Site are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws. Any claim relating to, and the use of, this Site and the materials contained herein is governed by the laws of the state of North Carolina. USE GUIDELINES ----------------------------------------------------------------- Limitations: You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the ThinMind.com sites / services for any purpose without the express written permission of Shift Technologies, Inc. The web site and all documentation are furnished under a license or nondisclosure statement. Use Restrictions: The copyright in all material provided on this Site is held by Shift or by the original creator of the material. Except as stated herein, none of the material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Shift or the copyright owner. Permission is granted to display, copy, distribute and download the materials on this Site for personal, non-commercial use only, provided you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. This permission terminates automatically if you breach any of these terms or conditions. Upon termination, you must immediately destroy any downloaded and printed materials. You also may not, without Shifts permission, "mirror" any material contained on this Site on any other server. Any unauthorized use of any material contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. U.S. Government Restricted Rights: The materials on this Site are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the Government constitutes acknowledgment of Shifts proprietary rights in them. Trademarks: The trademarks, service marks, and logos (the "Trademarks") used and displayed on this Site are registered and unregistered Trademarks of Shift and others. Nothing on this Site should be construed as granting, by implication, or otherwise, any license or right to use any Trademark displayed on the Site, without the written permission of the Trademark owner. Shift aggressively enforces its intellectual property rights to the fullest extent of the law. The name of Shift Technologies, Inc. or ThinMind.com or the Shift logo or the ThinMind.com logo may not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without prior, written permission. Shift prohibits use of the Shift logo or ThinMind.com logo as a "hot" link to any Shift site unless establishment of such a link is approved in advance by Shift in writing. ACCOUNT, PASSWORD, SECURITY ----------------------------------------------------------------- In order to utilize the ThinMind.com services, you must have an account. When requesting an account, you must complete the registration / sign up process by providing us with current, complete and accurate information as prompted by the applicable registration / sign-up form. A login and password will be assigned to you. You are entirely responsible for maintaining the confidentiality of your login, password, and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Shift immediately of any unauthorized use of your account or any other breach of security. Shift will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Shift or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder. DISCLAIMER WARRANTY ----------------------------------------------------------------- THE MATERIALS ON THIS SITE ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, SHIFT DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER VIOLATION OF RIGHTS. SHIFT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE MATERIALS ON THIS SITE OR ANY SITES LINKED TO THIS SITE. LIMITATION OF LIABILITY ----------------------------------------------------------------- UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL SHIFT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE, EVEN IF SHIFT OR A SHIFT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. BILLING / INVOICING AGREEMENT ----------------------------------------------------------------- Payment: Once you have 'Activated' your account, Shift bills you for products / services obtained under this Agreement. You agree to pay Shift all charges at the prices then in effect for any products / services ordered by you or other persons (including your agents) using your Account, and you authorize Shift to charge your chosen payment method (your "Payment Method") for such products / services. You agree to make payment using that selected Payment Method. Shift will supply a monthly invoice for products / services provided via email. If your company will not accept email invoices and requires alternative invoice methods, you will be charged a $10 USD processing fee for each invoice generated. You also understand that Shift can require credit card payment for those Accounts with less than 25 users or poor payment history. Payment Information: YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT IN ORDER TO RECEIVE THE PRODUCTS / SERVICES ORDERED. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY SHIFT IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE SHIFT ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT SHIFT MAY CONTINUE CHARGING YOU FOR ANY PRODUCT / SERVICE PROVIDED UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION FOR SUCH PRODUCT / SERVICE (CONFIRMED IN WRITING UPON REQUEST). Termination: You may terminate your account at any time effective the last day of the current month. Invoicing: Your non-termination or continued use of the products / services on your Account reaffirms that Shift is authorized to charge your Payment Method. Shift may submit those charges for payment and you will be responsible for such charges. Those submissions will not waive Shift's right to seek payment directly from you. Due Date / Late Charges / Collection Fees: The amount due to Shift for your Account must be paid in full by your Payment Method Provider on the date such payment is requested by Shift, not later than 30 days after the billing date; you are not entitled to carry forward a balance. You agree to pay late charges that may be assessed by Shift on amounts due but not timely paid. The late charge will be 1% per month (or 12% per annum) on the total amount due but not paid; but if such rate is in excess of any allowable rate under applicable laws, then you will instead be charged the maximum rate that is permitted by law. Shift reserves the right to refer your Billing Account to a third party for collection in the event of default. You agree to pay all costs incurred in the enforcement of this Agreement and in collection of any delinquent amounts due, including reasonable attorneys' fees and costs. Default / Non-Payment : If Shift does not receive payment for any charge to your Account, you will be in default and Shift may suspend or cancel your Billing Account and your access to any or all Shift products / services. If your Payment Method Provider seeks return of payments previously made to Shift, but Shift in good faith believes that you are liable for the charge and applicable law allows the Payment Method Provider to seek payment from you, you will also be in default and Shift may cancel your Billing Account and your access to any or all products / services. A $25 USD charge will be assessed to activate an account after it has been cancelled or suspended, assuming account has not yet been removed from system. CANCELLATION OR SUSPENSION FOR DEFAULT MAY BE MADE WITHOUT PRIOR NOTICE TO YOU AND UPON SUCH CANCELLATION OR SUSPENSION, SHIFT MAY STOP DELIVERY OF ANY PRODUCT, AND ANY INFORMATION YOU HAVE STORED ON A SHIFT PRODUCT / SERVICE MAY NOT BE RETRIEVED AT A LATER DATE. General: You represent and warrant that: (1) you are at least 18 years of age or the age required or allowed under applicable law for making a legal and binding contract; (2) all information that you submit is true and accurate (including without limitation information relating to your Payment Method); and (3) you are an individual (or in the case of an entity, an agent of the entity) authorized to use the designated Payment Method. You agree to pay for all charges (including charges by other persons) and to comply with your responsibilities and obligations as stated in this Agreement. If you are an agent of an entity user, you represent and warrant that you are duly authorized to legally bind the entity to all terms and conditions of this Agreement and that you have made the entity aware of them. You agree not to assign, transfer or sublicense any rights in your Account. Shift may: (1) generate print copies of its electronic records and introduce them in evidence as original documents; and (2) prove your agreement or consent in any manner, including without limitation, by showing that a procedure existed by which you must have provided consent or engaged in conduct to obtain the applicable products / services. Limit Of Liability Or Damages: Shift Technologies, Inc. and ThinMind.com makes no warranties of any kind, either express or implied concerning the data or information available through our network. You agree the cumulative liability of Shift Technologies, Inc. and ThinMind.com for any and all claims relating to the products / services provided by Shift Technologies, Inc. in contract, tort, or otherwise, shall not exceed the total amount of fees paid to Shift Technologies, Inc. for products / services within the prior year. SERVICE LEVEL AGREEMENT ----------------------------------------------------------------- Included Time Period: 24 hours a day, 365 days a year. Guaranteed Uptime: Shift Technologies, Inc. guarantees perpetual 100% uptime for the ThinMind.com service. Automatic prorated credits for services provided will be rendered for any covered downtime according to the following schedule: Total Downtime Per Month Prorated Credit Less than One Hour 1 Day's Service One Hour to Eight Hours 1 Week's Service More than Eight Hours 1 Month's Service Total amount of Non-Performance Penalties in any month may not exceed the amount of that month's recurring service charges. Excluded Items: Regular scheduled system maintenance Monitoring Systems: Shift Technologies utilizes comprehensive internal and external monitoring systems to detect system failures. Standard system monitors are configured to detect all common points of failure a minimum of every 1-3 minutes, depending on criticality. These monitors include web servers, database servers, system services, database connectivity, network connectivity, network response time, routers, switches, and firewalls. DISCLOSURES AND CONSENTS FOR ELECTRONIC INFORMATION ----------------------------------------------------------------- Disclosure to Receive All Information in Electronic Form : ALL INFORMATION THAT SHIFT IS REQUIRED BY LAW TO SEND TO YOU REGARDING THE PRODUCTS / SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT, INCLUDING ANY BILLING AND PAYMENT INFORMATION (COLLECTIVELY REFERRED TO AS "REQUIRED INFORMATION"), AND ANY OTHER INFORMATION PROVIDED TO YOU FROM SHIFT, WILL BE PROVIDED TO YOU IN ELECTRONIC FORM ONLY. SHIFT WILL PROVIDE ALL REQUIRED INFORMATION TO YOU IN ELECTRONIC FORM EITHER: (1) VIA E-MAIL AT THE E-MAIL ADDRESS YOU SPECIFY DURING YOUR SIGN-UP FOR PRODUCTS / SERVICES; (2) BY ACCESS TO A SHIFT WEB SITE THAT WILL BE DESIGNATED IN AN E-MAIL NOTICE SENT TO YOU AT THE TIME THE INFORMATION IS AVAILABLE; OR, (3) TO THE EXTENT PERMISSIBLE BY LAW, BY ACCESS TO A SHIFT WEB SITE THAT WILL BE GENERALLY DESIGNATED IN ADVANCE FOR SUCH PURPOSE. Hardware and Software Requirements: In order to receive Required Information electronically from Shift, you must have an e-mail address and submit it to Shift upon sign-up for any products / services provided under this Agreement. Your computer also must have either Internet Explorer (versions 6.0, 6.01, 6.02 or above) and an e-mail software program capable of sending and receiving e-mail from Shift via the Internet. Finally, your computer must be capable of receiving, accessing, displaying, and either printing or storing, Required Information received in electronic form from Shift via a plain text-formatted e-mail or by access to a Shift web site using one of the browsers specified above. Changes to Hardware and Software Requirements : In the event that there are any changes to the hardware and software requirements listed above that are likely to have a significant impact on your ability to receive, access, display, store, and print Required Information that Shift sends to you in electronic form, Shift will notify you of these changes. In such case, you will be required to reconfirm your agreement to receive, and your ability to access, such Required Information in electronic form in order to avoid any disruption in the subscriptions, services or other items provided to you under this Agreement. Consent to Receive All Information in Electronic Form: YOU AGREE THAT BY ACCEPTING THE TERMS IN THIS AGREEMENT, YOU CONSENT TO RECEIVE REQUIRED INFORMATION, AND ANY OTHER INFORMATION PROVIDED TO YOU FROM SHIFT, SOLELY BY ELECTRONIC COMMUNICATION. YOU ALSO CONFIRM THAT YOUR COMPUTER SATISFIES THE HARDWARE AND SOFTWARE REQUIREMENTS STATED ABOVE FOR RECEIVING, ACCESSING, DISPLAYING, PRINTING, AND STORING COPIES OF SUCH REQUIRED INFORMATION, AND YOU CONFIRM THAT YOU HAVE PROVIDED SHIFT A CURRENT E-MAIL ADDRESS FOR RECEIVING REQUIRED INFORMATION. PRIVACY AND DATA SECURITY ----------------------------------------------------------------- At Shift Technologies, your right to privacy and data security is a primary concern. When you visit http://www.ShiftInc.com or http://www.ThinMind.com, we help you maintain control over your private data on the Internet. Below are the guidelines we use for protecting the information you provide us. Guidelines: Shift will not disclose your private and confidential information to any outside organization. Information regarding your company (such as company name, address and phone number) will not be given or sold to any outside organization. Data Encryption: Shift is committed to data security with respect to information collected and maintained on our site(s). To help protect your confidential information, we support the ability to encrypt all data. Encryption is a process by which we use software to scramble your confidential information in transit to Shift. The ThinMind.com site utilizes industry-standard Secure Sockets Layer (SSL) technology to allow for the encryption of confidential information. Use of our site requires the use of Microsoft Internet Explorer (versions 6.0, 6.01, 6.02, or higher). These browsers are security-enabled and allow data to be transmitted encrypted, making it extremely difficult to read even if it is wrongly intercepted. PUBLICITY AND MARKETING ----------------------------------------------------------------- By using services provided by Shift Technologies, you grant Shift Technologies the right to list your "company" or "entity" name and logo on our client lists, which may appear in our marketing materials. Marketing materials include web site pages, brochures, presentations, and other related documents. Individuals will not be listed, nor will any specific information about your account. You may request to be removed from this list at any time. CONTACTING SHIFT TECHNOLOGIES, INC. ----------------------------------------------------------------- If you have questions about the terms and conditions, you can contact Support@ThinMind.com or mail us at: Shift Technologies, Inc. 10612-D Providence Road, Suite 749 Charlotte, NC 28277 TERMS OF USE REVISIONS ----------------------------------------------------------------- Shift may at any time revise these Terms of Use by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Terms of Use to which you are bound. Information on this web site is subject to change without notice, and does not represent a commitment on the part of Shift Technologies, Inc., or any of its affiliates.