Terms and Conditions
For the purposes of this document, the following words and terms shall refer to the following definitions and meanings:
(a) "Company" shall mean "MindGenius Ltd"
(b) "Confidential Information" shall mean information learnt by one party in relation to the other's commercial or business affairs, including without limitation technical information, client information and technical knowledge
(c) "IPRs" shall mean all copyright, technical knowledge, trademarks, service marks and other intellectual property rights
(d) "Effective Date" shall mean the date on which the Subscriber agrees either electronically or otherwise, to begin using the Services
(e) "Services" shall mean the services provided by the Company for the Subscriber as set out by the Specification
(f) "Specification" shall mean the official documentation outlining the Services provided by the Company for the Subscriber
(g) "Subscriber" shall mean the company or individual agreeing to purchase the Services provided by the Company
(h) "Subscriber Data" shall mean information, data or material provided by the Subscriber through use of the Services
(i) "Licence Fee" shall mean the monetary value owed to the Company by the Subscriber throughout the course of the Licence Term as detailed in the documentation supplied prior to or at the point of agreement
(j) "Licence Term" shall mean the 1 month period which begins on the Effective Date and which shall be extended automatically immediately after each 1 month period elapses, until the Services are cancelled or otherwise terminated in compliance with these Terms
(k) "Terms" shall mean the terms and conditions as set out in this document, and shall include the Specification where context requires such inclusion. It also includes any referenced materials as found on the Company's websites
(l) "User Licence" shall mean the licence granted to the Subscriber by the Company for the use of the Services
SUBSCRIPTION – GENERAL TERMS & CONDITIONS
a) Upon accepting these Terms, the Subscriber is confirming agreement to abide by such Terms. Such agreement shall be considered confirmed by the Subscriber when the Subscriber clicks the button with the text "I accept" on the company website. Clicking this button is a declaration of agreement by the Subscriber to abide by these Terms. b) In compliance with these Terms, from the Effective Date, the Subscriber is granted a worldwide right to use the Services. Such right is non-exclusive and non-transferable, and is for the Subscriber's internal business activities only. The right will remain effective for the duration of the Licence Term.
1. PROVISION OF SERVICES
a) Details of the Services provided for the Subscriber are set out in the Specification.
2. FEES AND CANCELLATION
a) Details of the Licence Fee are set out in the Specification, and amounts owed by the Subscriber are to be paid to the Company monthly or annually in advance
b) The Company holds the entitlement to apply and charge interest on Licence Fees with overdue amounts. Such interest may begin to accrue from the date such amount became overdue, and shall be calculated at the rate of four (4) percent above the base rate of the Bank of England per annum. c) Should the Subscriber's account fall into arrears, the Company retains the right to suspend indefinitely or terminate the User Licence and prevent access to the Service. If a Subscriber's account is suspended, the charges as set out by the Licence Fee will continue to accrue during such suspension period. d) VAT is payable in addition to the fees set out in the Licence Fee, which are shown exclusive of VAT.
2. OBLIGATIONS OF THE COMPANY
a) The Company will provide login details to the Subscriber. Such login details will enable the Subscriber to connect to the Services using the Internet without time or date limitation, as subject to the conditions set out in clause 4(d) below. b) The Company is responsible for the provision of a user guide for use by the Subscriber. Such user guide will be made available for use by the Subscriber via the Company's website. c) The Company will take every reasonable step possible to ensure an uninterrupted server connection and to maintain other computer and operating system software in accordance with industry standards to provide the Subscriber with continuous access to fully-operational Services. Such access however may be unavailable during scheduled maintenance downtime or as a result of other interruptions beyond the Company's control. d) In order to maintain a fully-operational provision of the Services, the Company will undertake maintenance services on occasion, which may result in the temporary unavailability of the Services. Such unavailability is unlikely to occur for a duration of more than one (1) hour in any given 24 hour period, and such unavailability is likely to occur after midnight unless in circumstances beyond the Company's control. e) The Company retains the right to access the Subscriber's database in order to perform maintenance or for other technical purposes. f) The Company will offer protection of Subscriber Data via regular backup, however it remains the responsibility of the Subscriber to ensure backups are made according to their specific needs. g) Should this agreement be terminated in any manner, the Company will provide the Subscriber with all Subscriber Data in a format in compliance with industry standard.
4. RESPONSIBILITIES OF THE SUBSCRIBER
a) The Subscriber shall hold full responsibility for all equipment necessary for accessing the Services via the internet, including but not limited to computer, telephone, hardware and software equipment. Such responsibility includes ensuring relative system requirements are sufficient to allow access to the Services. The Company shall make no representation, warranty or assurance of the Subscriber's equipment suitability for use of the Services. b) It remains the responsibility of the Subscriber to ensure the security of its data through the safe storage of login details, nondisclosure of passwords and the regular amendment of such passwords. The Company holds no responsibility over password selection, and it is the responsibility of the Subscriber to ensure selected passwords are not easily guessable by others. c) The Subscriber hereby agrees to inform the Company immediately should any unauthorised access of the Services or any password or account breaches be suspected or detected. It is also the responsibility of the Subscriber to report any suspicion or detection of the unauthorised duplication or distribution of any Subscriber Data. d) The Subscriber hereby agrees to comply with all laws applicable in relation to the use of the Services, including without limitation laws related to data protection and the transmission of personal or technical data across borders.
5. LICENCE RESTRICTIONS
a) By accepting these Terms, the Subscriber is confirming agreement to abide by the following restrictions. The Subscriber shall not:
i) store or send any material that infringes the rights of others, or that is considered threatening, obscene, libellous or otherwise unlawful; ii) store or send any material known or suspected to contain malicious software or computer viruses, including without limitation Trojan horses, worms or other harmful computer code, scripts, files or programs; iii) alter or amend the performance or integrity of the Services or the data contained within; iv) attempt to acquire unauthorised access to the Services or other systems or networks related to it.
b) The Subscriber shall not in any way sell, resell, licence, sublicense, transfer, assign or otherwise commercially distribute or exploit the Services or User Licence. The Subscriber shall also not make any modifications or derivative works in relation
to the Services, nor shall the Subscriber allow access to the Service by anybody other than its nominated users.
a) The Subscriber hereby indemnifies the Company against any claims, costs and expenses which may be incurred by the Company, arising either indirectly or directly from the Subscriber's breach of any obligations as set out by these Terms. The Subscriber further indemnifies the Company against claims, costs and expenses incurred by the Company arising from a claim alleging that the use of the Subscriber Data by the Subscriber has infringed the rights of a third party, or has caused harm to a third party.
7. INTELLECTUAL PROPERTY RIGHTS
a) The Company hereby declares acknowledgement that the Subscriber at all times remains the sole owner of all rights, title and interest to the Subscriber Data. b) The Company owns all IPRs contained within the Services and any website operated by the Company. c) These Terms do not give the Subscriber any rights in or in relation to the Services, any website owned or operated by the Company, or any other IPRs unless expressly provided within these Terms. Any associated names or logos of the Services are Company trademarks, and the Subscriber is granted no right or licence to use them.
a) It is hereby agreed by both the Company and the Subscriber that no disclosure of Confidential Information shall be made to any third party. b) The Company shall apply careful attention to the observance of confidentiality in relation to the Subscriber Data, and confirms that throughout the duration of the provision of Services it shall apply continuous compliance to all aspects of the Act, including without limitation data processing. The Company furthermore shall not use or disclose Subscriber Data without express consent from the Subscriber, or unless such use or disclosure is necessary for the operation of the Services. c) The Company hereby confirms that it has appropriate technical and organisational security measures in pace. Such measures govern the processing of the Subscriber's personal data. d) The Company hereby agrees to not transfer any personal data that is processed on behalf of the Subscriber, to any territory which falls outside the European Economic Area, unless such transfer is conducted with the Subscriber's written consent in advance.
a) The Company hereby warrants that it shall provide Services with reasonable skill and care which shall conform to generally accepted industry standards of practice.
11. LIMITATION OF LIABILITY
a) The whole liability of the Company to the Subscriber in relation to any claim or breach of these Terms, shall be limited to the maximum amount of the annual User Licence Fee. Such liability applies regardless of whether or not such claim or breach arises from negligence, with the only exception being death or personal injury as a result of negligence, in which case no limit applies. b) Notwithstanding clause 12(a) set out above, the Company holds no liability to the Subscriber for lost opportunity, loss of business, loss of profits or any other consequential or indirect loss or damage. Such non-liability applies even in cases where such loss could be considered reasonably foreseeable.
a) Upon submission of one month's notice to the Company, the Subscriber is entitled to terminate the User Licence. Such termination will come into effect on the anniversary of the Effective Date, and no refund for unused subscription will be
issued by the Company. b) These terms may be terminated immediately by either party with written notice if:
i) the other party commits a material breach of these Terms, and such breach is either unresolvable, or if the party breaching such Terms fails to resolve such breach within 30 calendar days of receiving a request to do so;
ii) there is the imposition of distress or execution against the other, or the making by the other of any arrangement or composition with creditors, or the liquidation of that other (should the other be a company, and excluding that of voluntary liquidation).
c) In the event of the termination of these Terms by either party, the obligations of confidentiality as set out in clause 9 shall survive such termination.
13. FORCE MAJEURE
a) Neither party shall hold liability for any default arising due to any act of God, war, any industrial action including strike and lockout, fire, flood, drought, tempest or other natural disaster, or any other event beyond either party's reasonable control.
a) Any notice given by either party to the other shall be given in writing. If such notice is hand delivered, it shall be deemed served at the time of personal delivery. If such notice is sent by pre-paid post, it shall be deemed served as delivered in the expected course of post, providing it has been correctly addressed (such address being that indicated in relevant paperwork prior to contract agreement, or the address subsequently acknowledged in writing as the correct address). Should a notice be delivered by facsimile or email, the service of such notice shall only be deemed acceptable upon proof of confirmation of receipt of such facsimile or email.
PERPETUAL – GENERAL TERMS & CONDITIONS
You are granted a non-exclusive, non-transferable licence to use the copy of the MindGenius software ('the Software') on the following terms and conditions:-
1. All rights in the Software remain the property of MindGenius Limited or its licensor and you acquire no title or interest in the Software other than the right to use it as detailed in this licence. You continue to be responsible for virus checking the Software. Support will continue to be provided by email by contacting our help desk at email@example.com
2. For MindGenius Business you may licence the Software on 2 (two) Personal Computers (PC). E.g. Business PC & Home PC or Business PC & Laptop PC. The Software can only be run on one PC system at any time. For MindGenius Education, you may licence the Software on 1 (one) PC. Should you require to transfer the licenced Software to additional PCs you shall require our express permission to do so, which permission shall not be unreasonably withheld.
3. You can treat the Software as an archival copy and make a back-up copy for regular use or vice-versa provided that copies are labelled as per the master disk. Otherwise the Software and all related materials are confidential information which you must not disclose (other than by way of a general description which does not disclose technical details), copy or reproduce in any manner or loan or in any way dispose of for profit or incentive or otherwise without our express written permission.
4. You must not alter, remove, obscure, conceal or otherwise interfere with any markings on or within the Software or the packing which refer to us and must not interfere with any other copyright notices.
5. You shall not decompile, disassemble or reverse engineer the Software in any manner and shall not interfere with any security devices, encryption, pass-words, embedded licence data or any other devices in or supplied with the Software unless permitted to do so by law. In the case of decompilation, however, you must abide by the following procedure. At first instance you should contact us to request the information required in order to achieve interoperability of the Software with your other hardware or software (the 'Permitted Objective'). If we do not make this information readily available, you shall be entitled to decompile the Software only if it is essential to do so in order to achieve the Permitted Objective and only insofar as we have not made the information readily available.
6. Whilst we have used reasonable skill and care in designing the Software, it is supplied to you 'as is' and except insofar as the same cannot be excluded by law, no warranty is given by us (a) in relation to the Software or the uses to which it may be put or its fitness or suitability for any particular purpose or under any special conditions and/or (b) that the use of the Software and/or any other materials by you will not infringe any third party, copyright or other intellectual property rights.
7. We shall not be liable to you in respect of any costs, claims, losses, liabilities, damages and expenses incurred directly or indirectly in respect of the Software, the manual and/or any other materials (including but not limited to any consequential loss or loss of goodwill or revenue or anticipated savings or production) or any loss arising as a result of the Software ceasing to operate or containing any virus except insofar as such liability cannot be excluded by law. For the avoidance of doubt, we do not attempt to restrict or exclude liability for death or personal injury arising out of our negligence.
8. For the avoidance of doubt, we will be entitled to terminate this licence with immediate effect if you breach the terms of this licence at any time. Upon termination of this licence, you shall stop using the Software immediately and will destroy all copies of the Software in your possession and/or return, at our option, all copies to us.
9. In consideration of the grant of this licence, you shall be due to pay us a licence fee in the amount specified on our web site as at the date you accept these licence terms. Further details of our prices are also available in our sales and marketing materials. Payment shall be made either:
(a) by credit card by completing the on-line payment section of our Web site.
(b) by payment of an invoice issued by us without deductions of any kind within 14 days of the date of said invoice failing which we shall be entitled to charge interest at a rate of 5% p/a above the base lending rate of Royal Bank of Scotland plc from time to time on any sum outstanding from the date said sum became due until the date of payment. If you fail to pay any sum due to us on the due date, we shall be entitled without prejudice to any other rights or remedies which we may have to suspend without any liability to you the licence granted herein until such time as such sum is paid.
10. You shall not be entitled to assign your rights or obligations under this licence without our prior written consent. We shall be entitled to assign our rights and obligations hereunder as we deem appropriate. This licence shall be governed by the law of Scotland and you hereby submit to the non-exclusive jurisdiction of the Scottish courts. If any provision of this Licence is found to be invalid or unenforceable pursuant to any judicial decree or otherwise, the remainder of this licence shall remain valid and enforceable to its terms.
a) Together with the Specification and any existing privacy or security policies published by the Company, these Terms embody the entire agreement between each party in relation to the Paperwork, and supersede any prior agreement between each party in relation to such Paper work whether verbal or written. Furthermore, both parties hereby confirm upon accepting these Terms that they have not done so based on any external representations made that are not written expressly into these Terms.
a) Should any provision contained within these Terms be or become prohibited by law or be deemed officially by a court to be unlawful, unenforceable or void, then such provision shall be severed from these Terms and made ineffective to the fullest extent required. Such severance will be executed as far as possible without the need to modify any remaining provisions contained within these Terms, and such severance shall not affect any other circumstances nor shall it affect the validity or enforcement of any of these Terms.
a) The construction, performance and validity of these Terms falls under the governance of Scottish law. Acceptance of these terms hereby submits the acknowledgement of both the Subscriber and the Company that any dispute arising in relation to these Terms must be subject exclusively to the jurisdiction of the Scottish courts.