Mindspeller and You as the Customer are hereinafter also referred to individually, respectively collectively, as “Party” and “Parties”.
(A) Mindspeller offers Software as a Service providing companies with neuro-metric decision support applications for their marketing communication management through the use of a Mindspeller proprietary cloud-based hosted platform that is accessible through a secured web browser portal;
(B) Customer is interested in receiving such services from Mindspeller;
(C) on the condition of Customer’s acceptance of and continuous compliance with the present
agreement, Mindspeller is willing to provide Customer with the said service;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
The Agreement comprises the Order Form and the General Conditions below.
II. GENERAL CONDITIONS
For the purposes of the Agreement, the terms defined in this article shall have the meanings set forth below. Where the context requires, the singular shall include the plural and vice versa.
means a physical person designated as such by Customer in the Platform and authorized to administer Customer’s use of the Service and Customer’s Account on Customer’s behalf;
means the additional services, not included in the License, offered by Mindspeller, such as consultancy, training, set-up services, template building or reporting;
means, with respect to a Party, any person, partnership, corporation, organization or entity that directly or indirectly
means any day of the week, except for Saturdays, Sundays and public holidays.
means between 09.00-18 hour on Business Days;
“Change of Control”
means any occurrence having as a result that any person other than the person or persons having Control on the date of signing of the Agreement, acquire the Control, whether alone or acting in concert with other parties;
shall have the meaning as set out in the designated article below;
means the ownership of more than half the capital, business or assets of a Party or the power to exercise more than half the voting rights of a Party or the power to appoint more than half the members of the board of directors of a Party or sufficient authority to direct, directly or indirectly, the adoption and/or execution of the policies, management or operations of a Party by any means whatsoever;
“Controller Personal Data”
means any Data that is Personal Data processed by Mindspeller on behalf and under the instructions of Customer under the Agreement;
means Customer’s usual activities related to marketing communication management of (i) trademarks it controls and related marketing communication stimuli it designs (internally and/or externally) and communicates via internal or external channels;
means the Data provided to Mindspeller through the Platform or submitted, uploaded or stored in the Platform by Customer under the Agreement;
means any Data, other than Customer Data;
means any data, information or material regardless of its form or the medium in which it is comprised, submitted, uploaded or stored in the Platform;
means Mindspeller’s then-current manuals and technical materials, in such medium as Mindspeller elects that are delivered by Mindspeller to Customer under the Agreement for the purpose of the setup and/or use of the Service;
means the date indicated in the Order Form;
means any extension to the Service Package;
“ Mindspeller Technology”
means all of Mindspeller’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by Mindspeller in the Platform;
“EU Data Protection Laws”
means EU Directive 95/46/EC as amended, replaced, or superseded from time to time, including by the EU General Data Protection Regulation 2016/679 and laws implementing or supplementing this regulation;
means EU General Data Protection Regulation 2016/679; means these general conditions including its Schedules hereto;
“Intellectual Property Rights”
means, without limitation, and in particular with regard to the Platform and Mindspeller’s products and services, all rights throughout the world in the nature of intellectual property rights including copyright, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing; Intellectual Property Rights shall also include the Know-How;
means, in particular with regard to the Platform and Mindspeller’s products and services all technical and processing data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like data;
means the licenses granted by Mindspeller to Customer as defined in this document for use of the Platform, the Service and of the Service Results;
shall have the meaning as given in the designated article below;
means the order form representing a purchase order, evidencing the purchase of the Service specifying, among other things, the subject of the Service (the Service Package chosen) and/or of Additional Services and any specific terms and conditions thereof;
means the Mindspeller proprietary cloud-based platform to which Customer obtains access under the Agreement and via which Mindspeller performs the Service;
means, with respect to a Party or a Party’s Affiliate, its directors, officers, employees, contractors, agents, advisors, counsellors, auditors, accountants or lawyers; in relation to Customer, Representative includes Customer’s Account Manager(s) and User(s);
means one of the Service packages offered by Mindspeller to Customer as set out in the Order Form, defining the scope of the License and the set of rights awarded to Customer under the License and the Service Results that may be obtained through the Service;
means the services to which Customer is being granted access under the License as related to a specific Service Package; the Service includes Documentation and, as the case may be, Extensions;
means any file, document, data or information generated through or stored on the Platform as a result of the Service;
means a physical person designated as such by Customer in the Platform.
1. The Agreement governs all contractual relationships between Mindspeller and Customer regarding the Service and applies, among others, to all offers and orders issued or accepted or entered into by Mindspeller with Customer in relation to the Service. The Agreement sets out the terms and conditions that apply to all services, products, documents, data and any other element provided by Mindspeller or exchanged with Mindspeller in relation to the Service.
2. By signing the Agreement or accepting it on the Platform Customer is deemed to have unconditionally accepted the terms and conditions set out in the Agreement.
The Agreement shall be binding upon Customer regardless any stipulations to the contrary in a document issued by Customer. In case of conflict between the Agreement and terms and conditions of Customer, order forms or any other document passed between the Parties in relation to the Service, the Agreement shall prevail, unless expressly and specifically agreed to the contrary by Mindspeller in writing.
3. In order to comply with regulatory or governmental provisions and/or to safeguard continuity of the Service, Mindspeller reserves the right to modify the terms and conditions of access to the Service in its reasonable discretion from time to time. Such modifications shall be deemed to be accepted by Customer provided that Mindspeller notifies them to Customer in accordance with article 23 of the Agreement. Continued use of the Service by Customer after such notification shall constitute Customer’s acceptance of the modification.
1. By the Agreement Mindspeller grants to Customer and Customer accepts the License, meaning:
- a non-exclusive, restricted, personal, non-transferable and a non-assignable license to use the Service for the entire duration of the Agreement and
- a non-assignable license to use the Service Results via the Platform for the entire duration of the Agreement
under the terms and conditions set out in the Agreement for the purpose of Customer Operations and for such purpose only.
2. It is understood that the Agreement shall not prevent Mindspeller from entering into similar agreements with third parties or from developing, using, selling or licensing documentation, products and / or services which are similar to those provided under this Agreement.
3. The License may be granted and any (part of the) Service may be provided only by Mindspeller, including any technical support, and no rights are being granted to Customer in respect of error correction, support or maintenance of the Service.
The License is granted to Customer only and shall not be sublicensed in any form.
1. The Agreement does not grant and shall not be construed to grant to Customer any other right than the rights expressly granted by the Agreement. Any right that is not expressly granted to Customer hereunder is reserved by Mindspeller.
2. The License is granted subject to Customer’s continuous compliance with the Agreement, including timely payment of the License Fee, failing which Mindspeller reserves the right to fully or partially end, deny or limit Customer’s access to the Service and/or to refuse, suspend, interrupt or terminate the License granted to Customer at all times, without detriment to Mindspeller’s rights hereunder and its right to claim compensation for losses, damages and costs it suffered.
3. By the acceptance of the Agreement Customer commits and guarantees that he is not and shall not be a Mindspeller competitor and that, except with Mindspeller's explicit prior written consent, he shall not use (any part of) the Service or(of) the Service Results for any other purpose than Customer Operations, among others not for any activity that is competing with Mindspeller’s services or products or is detrimental to Mindspeller’s interests.
4. With respect to the Service, Customer shall not and guarantees that his Affiliates, his Representatives and/or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means, unless when explicitly stated otherwise in this Agreement:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Service or Platform in any form or media; or
(ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available the Service to any party, or
(iii) access the Service or any part thereof for purposes of monitoring the availability, the performance or the functionality of the Service, nor for any benchmarking or competitive purposes; or
(iv) translate, modify, adapt, alter, reverse compile or reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form all or any part of the Service or Platform; or
(v) reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Service or disclose any of the foregoing; or
(vi) create Internet “links” to the Service or any part thereof or "frame" or "mirror" the Service or any part thereof
on any server or wireless or Internet-based device; or
(vii) access or use the Service or any part thereof to provide services to third parties, to build a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Service or any part thereof or to copy any ideas, features, functions or graphics of the Service or of any part thereof; or
(viii) take any action that would cause the Service or Platform to fall into the public domain; or
(ix) access or use the service or any part thereof to reconstruct Mindspeller proprietary databases or any part thereof.
With respect to the Service Results, Customer shall not and guarantees that his Affiliates, his Representatives and/or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Service Results in any form or media except for Customer Operations; or
(ii) sell, resell, rent, lease, distribute, display, disclose or otherwise commercially exploit or otherwise make available the Service Results to any party except for Customer Operations, or
(iii) use the Service Results or any part thereof to provide services to third parties, to build a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Service or any part thereof or to copy any ideas, features, functions or graphics of the Service Results or of any part thereof.
It is understood that Customer may use the Documentation, or any part of it, for security, test and backup purposes.
1. By the Agreement, subject to the terms and conditions under which the License is provided, during the term of the Agreement, Mindspeller shall provide the Service to Customer substantially in accordance with the Documentation and with reasonable skill and care, and make available the Documentation to Customer.
2. Mindspeller shall use commercially reasonable efforts to ensure a 99 % uptime of the Service.
However, notwithstanding the foregoing, the Customer recognizes that Mindspeller may interrupt the Service (in whole or in part) for maintenance work purposes, including both scheduled maintenance work and unscheduled work in the event of an emergency. Mindspeller undertakes to have the scheduled maintenance work to be executed outside of the Business Days or during Business Days but outside Business Hours, and to notify such works at least 48 hours in advance and shall use commercially reasonable efforts to notify the Customer of any unscheduled works as soon as reasonably practicable.
3. Mindspeller shall not have the obligation to (continue to) perform the Service in case of any (suspected) use of the Service by the Customer (its Affiliates, his Representatives and/or its Affiliates’ Representatives) contrary to the Agreement or Mindspeller's instructions, of modification or alteration of the Services by any party other than Mindspeller (or Mindspeller's duly authorized contractors or agents) and shall be relieved of its obligations to perform the Agreement for the time that it is prevented from performing the Agreement as a result of any failure or delay by Customer to perform its obligations under the Agreement.
If the Service does not comply with the Agreement, Customer's sole and exclusive remedy shall be, at Mindspeller’s discretion, the correction of the breach by Mindspeller or the provision of the Customer by Mindspeller with an alternative means of accomplishing the desired performance.
1. Customer shall provide Mindspeller with all necessary co-operation and with access to all information as may be required by Mindspeller for the performance of the Agreement, shall maintain all necessary consents and permissions necessary for Mindspeller (and its contractors, agents or Representatives) to perform their obligations under the Agreement and shall perform its obligations under the Agreement in a timely and efficient manner, failing which Mindspeller may adjust any agreed timetable or delivery schedule as reasonably necessary.
2. Customer shall ensure that its network, file and web transfer protocols and message structures and any other systems, as may be used in relation to the Service, comply with the required specifications provided by Mindspeller from time to time and shall be solely responsible for procuring and maintaining the network and telecommunications connections between its IT-environment and Mindspeller's platform and for all loss or damage due to events such as delays and delivery failures related to the said connections.
3. Customer shall be responsible and liable for all activity occurring under its Customer account, including, among others, for all actions of his Representatives, including for Service Results and the use thereof.
Customer shall ensure at all time that the License is not used and the Service are not accessed by incompetent persons, in particular persons other than his Account Administrator or Users, and that his account, his Account Administrator’s account and/or his User’s account is not shared or used by more than one person designated in the Platform as Account Administrator, respectively, User. Customer shall in particular ensure that the password giving access to the Service is kept secret and is known only to that person to whom it is allocated. Customer shall not, and warrants that his Representatives shall not, provide false identity information to gain access to the Service or impersonate another person.
4. Customer represents that his Representatives, and in particular his Account Administrator and Users, shall at all time fully comply with the Agreement and shall indemnify, defend and hold Mindspeller, its Affiliates and its Representatives harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by any of them, arising out of or in connection with the infringement of this representation.
Customer shall prevent any unauthorized access to, or use of, the Service or the Service Results and, in the event of any such unauthorized access or use, promptly notify Mindspeller of any unauthorized use of Customers
account or password as well as of any other breach of security, including illegitimate copying or distribution of Data known to or suspected by Customer or its Representatives and shall use all reasonable efforts to immediately stop any such breach.
(i) The Service includes Mindspeller’s maintenance activities required to ensure the availability of the Service in accordance with the Agreement and technical troubleshooting support services to Customer. These services shall be provided on Business Days during Business Hours.
(ii) In relation to troubleshooting, Mindspeller shall examine any incident in relation to the performance of the Service as notified to Mindspeller by the Account Administrator.
Mindspeller shall have no obligation to correct the incident if it is not able to replicate the incident and/or the incident is (a) not caused by malfunctioning of the Service and (b) is caused by (i) the use of the Service contrary to the Agreement, (ii) modification of the Service without Mindspeller’s prior consent, (iii) the use of
incorrect data or data format, (iv) disruption or unavailability of external services (including but not limited to third party validation services or network disruptions), (v) disruption or unavailability of networks, internet, file transfer mechanisms, etc. or (v) Customer’s use of the Service with any incompatible or unauthorized products or services (“Unconfirmed Incident”).
In case of Unconfirmed Incident, if the Customer so requests, Mindspeller may advise the Customer on and assist
the Customer with resolving such incident. Any work performed by Mindspeller for investigation of Unconfirmed Incidents and the advice and assistance in relation thereto shall be invoiced to the Customer on a time and materials basis at Mindspeller's then standard fee rates.
(iii) Other than Unconfirmed Incidents shall be handled by Mindspeller in accordance with the following priority schedule:
Priority 1 : Downtime of the entire Service, security violation, loss of critical functionality having major impact on the Service: support requests shall be responded to within one (1) Business Day.
Priority 2 : Loss of certain functionalities with no critical impact: support requests shall be responded to within five (5) Business Days.
Priority 3: Minor impact on Customer: support requests shall be responded to within ten (10) Business Days.
The Customer shall provide Mindspeller with all information required for Mindspeller to understand and assess the issue, including date and timing of the occurrence of the issue and all data required to reproduce it.
(i) It is understood that the (performance of the) Agreement does not result and shall not be construed to result in any change in the ownership of Data.
(ii) Customer shall be responsible and liable for the accuracy, quality, integrity, legality, reliability, accuracy, appropriateness and compliance with any third party Intellectual Property Rights or other proprietary rights of all Customer Data and warrants and represents that it shall obtain prior to the communication of Customer Data to Mindspeller, or the storage of Customer Data on or the use of Customer Data via the Platform, any and all required third party authorizations and fulfil any and all required legal conditions and obligations and industry standards that must be obtained or fulfilled for the processing, storage, transfer and in general, any use, of Customer Data under the Agreement.
(iii) Customer acknowledges and agrees that:
• Mindspeller's employees or contractors have access to Customer's Data in order to provide the Service under the Agreement;
• Mindspeller may further use and disclose Customer Data that Mindspeller collects, obtains, retrieves or otherwise captures under the Agreement to the extent required for the execution of the Agreement as well as, on the condition that Mindspeller does so in aggregate and non-Customer identifiable and non- person identifiable formats, for other purposes;
• the Customer Data may be transferred or stored within the European Economic Area and/or outside of the European Economic Area in accordance with applicable legislation and rules to carry out Mindspeller's other obligations under this Agreement;
• Mindspeller shall be entitled to keep records of Customer Data as necessary to comply with any applicable laws and regulations and for its business records, subject to its confidentiality obligations hereunder.
(iv) Mindspeller acknowledges that Customer may use and disclose Mindspeller Data provided to Customer under the Agreement and collected, obtained, retrieved or otherwise captured by him as a result of the Service on the condition that this is done only for the purpose of the Customer Operations, not unintendedly or improperly, in accordance to the Agreement and in compliance with the applicable laws.
(v) In order to prevent Data loss, Mindspeller shall maintain a back-up strategy as it may amend in its sole discretion from time to time. Mindspeller shall inform Customer about the back-up strategy upon Customer’s request.
In the event of any loss or damage to Data, Customer's sole and exclusive remedy shall be to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained in the Platform in accordance with the said back-up strategy. Mindspeller’s liability for loss, destruction, alteration or unauthorized access or disclosure of Data not attributable to Mindspeller (or to persons acting on
its behalf) and/or attributable to Customer is excluded.
At the moment of creation of Customer account, Customer shall be asked whether or not he wishes to receive marketing and other non-critical Service-related communications from Mindspeller from time to time. Customer may opt in on receiving such communications at that time or, should he wish to change his position, opt-in or opt-out at any subsequent time by changing his preference.
Customer however recognizes and accepts that, because the Service is a hosted, cloud-based application, even if he opted out or did not opt-in, Mindspeller shall occasionally need to notify him of important information regarding the Service.
1. Mindspeller does not endorse any third party websites, services or products even if they are linked through the Service. Any such links are provided to Customer only for convenience.
Customer recognizes that both the provision and the use of the Service require the use of the internet and of means of electronic communication and may require the availability and use of certain ancillary software, hardware or services provided by third parties. Mindspeller shall not be liable for any delays or failures resulting from the use of the internet and of means of electronic communication nor for the (continuous or interrupted) availability of the said software, hardware and services.
2. Mindspeller shall use best endeavors to preserve the stability of the Service APIs. Customer however acknowledges that external changes (including but not limited to: regulations, standards, technology, third party software …) may require Mindspeller to bring modifications to the available APIs. Mindspeller reserves the right to adapt the Service APIs at its sole discretion, and Customer accepts this right.
Customer accepts and agrees to adapt the integration within 3 months after being required to do so. Mindspeller shall not be held liable, neither contractually nor extra-contractually, for discontinuing the maintenance of an older API version, three (3) months after communicating any changes on the older version.
Customer shall pay to Mindspeller in compensation of the Service the agreed license fee as set out in the Order form (the “ License Fee”).
It is understood that any License fees published by Mindspeller on its website or otherwise are non-binding.
Mindspeller reserves the right to modify the License fees and to introduce additional License fees at any time provided that it notifies this to Customer with at least thirty (30) days prior notice. For Licenses that are then current, the modified fee shall apply from the first renewal of the License after the said term of thirty (30) days.
Customer shall pay the License fee in advance for the entire term of the License according to the Agreement. The fee is due regardless of whether Customer effectively uses the Service. The payment obligation is non-cancellable and irrevocable and the amounts paid are non-refundable.
Customer shall provide Mindspeller with complete, correct and accurate billing and contact information, including Customer’s legal company name, address, enterprise number, email address, valid credit card number and name and telephone number of Customer’s authorized billing administrator
Mindspeller shall have no obligation to start (or to continue) the Service under the License prior to full payment by Customer of the corresponding License fee or agreed upon advance payments. Unless otherwise stated, invoiced amounts are due in 15 days. For invoices not paid by the due date, the Client shall automatically and without formal notice owe contractual interest on arrears at the interest rate determined in application of Article 5 of the Belgian Law of August 2, 2002 on combating late payment in commercial transactions, with a minimum of EUR 75. In addition, all possible legal costs shall be borne by the Client.
1. Without prejudice to Mindspeller’s right to compensation for losses, damages and costs suffered and without prejudice to other provisions of the Agreement, Mindspeller may terminate the Agreement and any and all License(s) granted hereunder at any time during the term thereof by a notice sent to Customer in accordance with Article 23 if Customer:
- fails to observe or breaches any of its material covenants, agreements or obligations under the Agreement in any material respect, provided that such breach continues for a period of fifteen (15) days after receipt by Customer of notice of default specifying the nature of the breach and requesting to cure it; or
- makes any assignment for the benefit of creditors or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent or generally unable to pay its debts when due or is placed in the hands of a receiver or if the equivalent of any such proceedings occurs, provided that such termination is not contrary to legal provisions of public order applicable to Customer;
- fails to maintain any authorization, license or permit of any nature that is legally required to execute the Agreement as a result of which Customer is no longer authorized to receive the Service or execute the whole or a part of its obligations under the Agreement; or
- commits a serious breach of the Agreement, the breaches to the following obligations constituting such breach: unauthorized use of the Service or of the Platform, breach of Customers Responsibilities in relation to use of the Service, Data and Customer account; non-payment of fees; breach of Customer warranties, breach of Mindspeller’s Intellectual Property or of Customer’s confidentiality obligations and breach of non- enticement obligations; or
- undergoes or intends to undergo a Change of Control.
1. Any provision of the Agreement expressly or implicitly intended to survive its termination or expiry, whatever the cause, shall survive as provided and the termination or expiry shall not affect any obligation to pay any amount due under the Agreement whilst it was in effect.
2. Upon termination of the Agreement:
- all licenses granted under the Agreement with regard to the Service shall immediately terminate;
- Customer shall return to Mindspeller within five (5) Business Days all latter’s Confidential Information and all copies and embodiments thereof that is in Customer’s possession and Mindspeller is entitled to conserve all Customer Data for a period of twelve (12) months following the date of termination of the Agreement. Upon termination of this conservation period, Mindspeller will permanently delete and/or discard all Customer Data, statistical and anonymized behavioral Customer Data excluded, unless Mindspeller is bound by a legal obligation to conserve Customer Data beyond the said conservation period;
- Mindspeller shall have no obligation to maintain, forward or return to Customer any Customer Data or other Data after the expiry or termination of the Agreement, unless Mindspeller receives, no later than ten (10) Business Days after the date of the termination or expiry of this Agreement, a written request for the delivery to Customer of the then most recent backup of Customer Data, provided that Customer has, at that time, paid all Licenses Fees and all other fees outstanding under the Agreement and/or resulting from termination or expiry (whether or not due at the date of termination or expiry) of the Agreement, and against payment by Customer of all expenses incurred by Mindspeller in returning the Customer Data; Customer Data shall only be returned to Customer in a standard format to be specified at Mindspeller’s discretion.
- each Party shall promptly return and make no further use of any equipment and tokens (and all copies of them) belonging to the other Party;
- Mindspeller shall be entitled to recover possession from Customer of all copies of the Documentation and related information supplied to or provided by Customer to third parties and in existence at the time of expiry or termination or require Customer to destroy the same and certify on oath that it has done so.
3. Upon termination of the Agreement, whatever the cause, Customer shall not be entitled to any indemnity whatsoever.
1. Without detriment to other warranties and representations provided under the Agreement, the Parties provide the following warranties and representations:
Customer represents and warrants that:
- he has the legal power and authority to enter into the Agreement and
- his Representatives (including the Account Administrators and the Users) shall and are duly authorized to act
on Customer’s behalf and under his sole responsibility and they shall at all time act in accordance to the
2. Mindspeller represents and warrants that:
- it has the legal power and authority to enter into the Agreement; and
- it shall provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and
- that the Service shall perform substantially in accordance with the Agreement under normal use and circumstances; and
- to the best of its knowledge it has all the rights in relation to the Platform and the Service that are necessary to grant all the rights granted hereunder, including the License, and in accordance with the terms of the Agreement.
3. It is understood that Mindspeller's performance of the Service is an obligation of means and that (any part of) the
Service is provided on an “as is” basis.
Except as expressly provided herein, Mindspeller hereby disclaims all other conditions, representations and warranties, whether express, implied, statutory or otherwise, to the maximum extent permitted by applicable law. Without limiting the foregoing, as such and among others:
- any service, good or information provided by Mindspeller under the Agreement is provided without any warranties or representations, express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, performance, non-infringement, timeliness, reliability, availability, accuracy, quality or completeness of the Service or of the Platform or of any data provided under the Agreement;
- Mindspeller does not warrant that the Service shall be uninterrupted, error-free or that it shall meet Customer’s, its Affiliates’, its Representatives’, its Affiliates’ Representatives or any other party’s specific needs, nor that a service, good or information provided by Mindspeller under the Agreement shall be free from viruses, harmful components, errors or defects (nor that the said shall be corrected), nor that the Service or the Platform shall operate in combination with any other service, software, hardware, system or data.
- Mindspeller shall have no liability for the (in)correctness of any Data provided to it, used by it or provided by it under the Agreement and shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data.
4. Customer acknowledges and agrees that the Service and any Additional Service and Service Results as the case may be are not to be considered as financial, legal or other advice. The information which might be provided via the Service, the Additional Service and Service Results is only provided on an “as is” basis, without any representations or warranties, express or implied. Mindspeller makes no representations or warranties whatsoever in relation to the information provided via the Service, the Additional Service and the Service Results. Customer acknowledges and agrees that it shall bear sole responsibility with regard to ultimate marketing communication actions taken by Customer or on Customer’s behalf.
1. Each Party shall indemnify and hold the other Party harmless from and against any and all claims, costs, damages,
losses, liabilities and expenses arising out of or in connection with the former’s (its Affiliates’ or their
Representatives’) breach of the of the Agreement, including its warranties thereunder. The same shall apply to direct infringement attributable to a Party a third party Intellectual Property Rights.
2. Without limiting the foregoing, Customer shall indemnify and hold Mindspeller, its Affiliates and their Representatives harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with (i) any unintended, improper or illegal use of (any part of) the Service or the Service Results, (ii) any harm caused to a third party as a result of the use of Customer Data, (iii) any consequences of the use by Customer, its Affiliates, its Representatives’ or its Affiliates’ Representatives of any hardware or software not provided by Mindspeller, (iv) Customer's (or its Affiliates’, its Representatives’ or its Affiliates’ Representatives) use of the Service or the Service Results (in the broadest sense including sublicensing and the use through a sublicense).
3. In the event of founded third party claim against Customer for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Mindspeller of its warranties and/or obligations under the Agreement, Mindspeller shall defend and hold Customer (with the exclusion of any other party) harmless against the said claim if (i) Customer notified the claim in writing to Mindspeller not later than thirty (30) days after the receipt thereof setting forth in detail the circumstances of the claim and accompanied by a copy of all the received documents and (ii) has not taken and does not take unilateral step in relation to the claim without Mindspeller's prior written consent. Mindspeller shall have the exclusive right to defend or settle the third party claim and Customer shall provide Mindspeller with reasonable assistance, at Mindspeller's expense.
In the event the Service in Mindspeller’s opinion is likely to be or to become the subject of a third party claim, Mindspeller shall have the right at its discretion (i) to procure for Customer the right to continue using the Service as provided in this Agreement or (ii) to use reasonable efforts to replace or modify the ((alleged) infringing part of the Service or to provide a work around solution and/or service that is substantially similar to the Service so that it is no longer subject to Third Party Claim or (iii) to terminate (part of) the Subscription the Service.
The foregoing states the entire liability and obligation of Mindspeller and the sole remedy of Customer with respect to any Third Party Claim.
4. In the event of founded third party claim against Mindspeller for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Customer of its warranties and/or obligations under the Agreement, Customer shall defend and hold Mindspeller harmless against the said claim if (i) the same is not solely attributable to the Service as such, (ii) Customer is given prompt notice of any such claim,
(iii) Mindspeller provides reasonable co-operation to Customer in the defense and settlement of such claim, at Customer's expense and (iv) Customer is given sole authority to defend or settle the claim.
5. Mindspeller, its Affiliates or its Representatives shall not be liable towards Customer (its Affiliates, its
Representatives’ or its Affiliates’ Representatives) for any damage of third party claim to the extent that the alleged infringement is the result of Customer’s breach of the Agreement, including but not limited to (i) modification of the Service by anyone other than Mindspeller, (ii) Customer’s (or its Affiliates’, its
Representatives’ or its Affiliates’ Representatives) use of the Service contrary to the Agreement or the instructions given by Mindspeller, (iii) after Customer was informed that the Service infringes (or may
infringe) a third party right, (iv) Customer’s failure to integrate any update or corrections to the Service as indicated by Mindspeller or (v) Customer’s (or its Affiliates’, its Representatives’ or its Affiliates’
Representatives) use of the Service in combination with any incompatible or unauthorized products or services.
6. To the extent permitted under the applicable law, Mindspeller shall in no event be liable for any incidental, special, punitive or consequential damages (including loss of profit and loss of business) suffered by Customer, his Affiliates, its Representatives’ or its Affiliates’ Representatives or by any other party in connection with the Agreement. The total aggregate liability of Mindspeller shall in any event be limited to the yearly License Fee
paid or payable by Customer for the Service when the claim relates to the Service, or, when the claim relates to an Additional Service, the fee for that Additional Service.
7. Nothing in the Agreement excludes the liability of a Party for death or personal injury caused by that Party's or for fraud or fraudulent misrepresentation attributable to it.
8. Each Party shall have a duty to mitigate damages for which the other Party is liable.
1. The Agreement does not intend and shall not bring or be construed to bring any change to the propriety of or licenses to any Intellectual Property Rights of Mindspeller and Customer shall not, as a result of the Agreement, be entitled to any claim with regard to any Intellectual Property Rights to which, prior to the signing of the Agreement, it was not entitled.
2. Mindspeller is and remains the exclusive owner of all Intellectual Property Rights relating to its products and services including, but not limited to, the Intellectual Property that underlies or is incorporated, included or used in the Platform, the Service, including Documentation, and the Service Results. All rights, titles and interests in such Intellectual Property shall remain vested in Mindspeller.
If the Agreement awards to Customer certain rights or licenses to Mindspeller’s Intellectual Property or if the purpose of the Agreement requires such use, it is understood that such rights are awarded only for the term of the License and that Customer's sole right in relation to Mindspeller’s Intellectual Property are at all time restricted to the use thereof to the extent that they are incorporated in the Service or the Service Results under the terms and conditions set out herein.
3. Without limiting the scope of other provisions of the Agreement and of License limitations set forth herein, Customer shall not, without prior written authorization of Mindspeller, copy, modify, make derivative works based on, disassemble, decompile, reverse engineer or translate anything that is protected by Mindspeller's Intellectual Property Rights nor remove, modify or obliterate any trademark, logo, name, notice, identifying number or coding applied to the Service provided by Mindspeller, its Affiliates or its Representatives under the Agreement.
In the event that, notwithstanding any prohibition thereto, Customer modifies or creates derivative works of the Service or the Service Results, Mindspeller shall own all right, title and interest, including any Intellectual Property Rights, in and to such modifications and derivatives and Customer hereby assigns any such rights, title and interest in such modifications and derivatives to Mindspeller at no cost to the latter. Customer represents and warrants that it has the authority to assign full title to these modifications and derivative works and the Intellectual Property Rights pertaining thereto in accordance with the terms and conditions of the Agreement.
4. Mindspeller may use Customer's name or logo (or the name or logo of any other member of Customer's Group or Customer’s commercial name or logo) in any advertising or promotional media in the course of performance of this Agreement or thereafter.
1. The Parties acknowledge that under the Agreement they may disclose to each other information that may be of a confidential nature if so designated (“Disclosing Party”), and shall remain the Disclosing Party’s exclusive property (“ Receiving Party”).
2. For the purposes of the Agreement " Confidential Information" shall mean without limitation, all information that is obtained directly or indirectly by the Receiving Party (including its Affiliates or its Representatives) from the Disclosing Party (including its Affiliates or its Representatives) in connection with the Agreement or the Disclosing Party’s business. Confidential Information shall also include, but not be limited to, any information related to the Platform and any Mindspeller’s products or services and any Intellectual Property Rights related thereto, as well
as any valuations, analyses, compilations, studies of the same and any documents or other materials independently of the form in which and the medium by which the information is provided (among others oral and written transfer as well as transfer by means of a software or any electronic or audio-visual form and whether in draft or final form) related thereto.
Confidential Information shall not include any information that:
- is in the public domain at the time it is disclosed or becomes part of the public domain after disclosure without the Receiving Party’s Affiliates (or its Affiliates’ or its Representatives’) breach of any obligation under the Agreement;
- is already known to the Receiving Party (or its Affiliates’ or its Representatives’) at the time of disclosure and
is not subject to restriction;
- becomes known to the Receiving Party (or its Affiliates’ or its Representatives’) from a source other than the Disclosing Party (or its Affiliates’ or its Representatives’) without breach of an obligation of confidentiality owed to Disclosing Party;
- is developed by the Receiving Party (or its Affiliates’ or its Representatives’) without access to any of the
other Party’s Confidential Information;
- is released for publication or disclosed pursuant to judicial order, a requirement of a governmental agency
or by operation of law by the Disclosing Party (or its Affiliates’ or its Representatives’).
3. Unless the Receiving Party obtains explicit prior authorization from the Disclosing Party, the former shall not to use the Confidential Information disclosed by the latter for any other purpose than strictly necessary for the due performance of the Agreement. The Receiving Party shall keep the Confidential Information confidential at all times and shall not disclose it to any third party, shall take at least those measures as the Receiving Party takes to protect own similar confidential information (but in no event less than a reasonable degree of care).
The Receiving Party shall only be permitted to disclose (and shall not be required to destroy) Confidential Information if and to the extent that:
- is required by the applicable law or regulation or pursuant to a court or administrative order issued by a court of competent jurisdiction or by a governmental authority that is lawfully entitled to require such disclosure, provided, however, that the Receiving Party shall (i) prior to any disclosure notify and fully inform the Disclosing Party of such obligation to disclose and demonstrate the existence and the extent of the requirement to disclose in order to allow the Disclosing Party to assess and, as a case may be, to contest it,
(ii) cooperate with the Disclosing Party if the Disclosing Party seeks a protective order or other remedy in respect of any such disclosure and (iii) abide by the Disclosing Party’s reasonable instructions in order to limit the disclosure; or
- to its Affiliates and Representatives however, that the Receiving Party shall do this (i) only the on need-to- know basis for the performance of the Agreement and (ii) if they are bound by confidentiality obligations that are at least as restrictive as those set forth in this article 21.
Subject to other provisions of the Agreement and without prejudice to article 17, upon the Disclosing Party’s request and in any case after the termination or expiry of the Agreement, whatever the reason, the Receiving Party shall immediately return to the Disclosing Party all Confidential Information (and any copies thereof) in its possession or destroy the same if this is requested by the Disclosing Party.
4. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized access, use, copying or disclosure of Confidential Information of which the former becomes aware, shall use its best endeavors to terminate such access, use etc. and shall provide all reasonable assistance requested by the Disclosing Party.
5. The provisions of this article shall remain in force during five (5) years after the termination or expiry of the Agreement.
For the entire duration of the Agreement and for one (1) year following termination or expiry of the Agreement, Customer, its Affiliates, its Representatives’ or its Affiliates’ Representatives shall not (attempt to) hire, offer to hire or otherwise entice away any Representative of Mindspeller or of its Affiliates whether directly or indirectly. In case of breach of the said obligation by Customer, Mindspeller shall be entitled to a lump-sum compensation of fifty thousand euro (€ 50.000,00) without prejudice to its right to claim compensation for losses, damages and costs effectively suffered.
1. Notices Mindspeller may give any notice to Customer by means of a general notice through the Platform, by notice to the Account Administrator or by e-mail or registered mail to Customer’s (e-mail) address that is on record in Mindspeller's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending if made though the Mindspeller platform or by registered mail and of 12 hours if sent by email. Customer may give notice to Mindspeller (such notice shall be deemed given when received by Mindspeller) by registered letter sent through nationally recognized overnight delivery service at Mindspeller’s registered address, with full copy to be sent to firstname.lastname@example.org. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending of the registered letter.
2. Severability If any provision of the Agreement is invalid or unenforceable, this shall not affect the remaining provisions thereof which shall remain in effect. The invalid or unenforceable provision shall be deemed to be replaced by an alternative valid and enforceable provision that is as closely in line with the Parties’ original intent as allowed under the applicable law.
3. Entire Agreement The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter including, but not limited to, any prior non-disclosure or confidentiality agreement. No amendment of the Agreement is binding unless executed in writing and signed by duly authorized representatives of the Parties.
4. Non-agency At all times during the term of the Agreement, Customer shall act as an independent party and neither the execution of the Agreement nor the performance thereof shall be construed to constitute, for any purpose, an agency relationship between the Parties, nor a relation of legal representation in the name of or on behalf of either Party nor a joint venture or a partnership. No Party shall have the right to act in the name or on behalf of the other Party, without latter’s prior written consent.
5. No Waiver The election of any one or more remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies. No failure by either Party to exercise and no delay by either Party in exercising (in whole or in part), any right in relation to the Agreement shall operate as a waiver of any such right.
6. Force Majeure If, for any reason beyond the reasonable control of a Party, including, without limitation, acts of God, earthquakes, floods and other natural disasters, wars, insurrections, strikes, riots, fires or orders by any government department, council or other constituted body, such Party is unable to perform in whole or in part its obligations under the Agreement, such Party shall be relieved of those obligations to the extent it is unable to
perform and such inability to perform, so caused, shall not make such Party liable to the other Party on the condition that the Party who is unable to perform notified the other Party of such inability within seven (7) days of the onset of such inability.
7. Assignment Customer shall not assign or otherwise transfer the Agreement in whole or in part or any of its rights and obligations under the Agreement without prior written consent of Mindspeller. The Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
8. Third Party Beneficiaries Nothing in the Agreement is intended to confer any benefits on any person other than the Parties or their respective successors or permitted assigns.
9. Government Approvals The Agreement, and the obligations and rights of the Parties hereunder, may be subject to any review, registration, approval, or other requirement of any governmental authority that is mandated by applicable law including, without limitation, export controls. Customer shall obtain and maintain all permits, licenses, and government registrations necessary or appropriate to receive and/or use the Service, the Additional Service and the Service Results.
10. Injunctive Relief Since a breach of any part of the Agreement by Customer, in particular the provisions governing intellectual property rights, may cause irreparable harm to Mindspeller for which monetary damages are inadequate, Mindspeller may seek immediate injunctive and/or other equitable relief should such a breach occur.
11. Governing Law and Dispute Resolution All disputes in connection with the existence, validity, construction, performance, non-performance, breach or termination of the Agreement (or any terms thereof) that are not settled shall be settled.
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