Terms and Conditions
MindGenius Desktop 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.
3. 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. To communicate with our Data Protection Officer please email firstname.lastname@example.org
(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 or SOFTWARE AS A SERVICE (SaaS)– 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.
MindGenius Online Terms and Conditions
These Terms are binding on any use of the Service and apply to You from the time that MindGenius provides You with access to the Service. If You register for a free trial for Our services, the applicable provisions of this agreement will also govern that free trial.
By accepting this agreement, either by clicking a box indicating Your acceptance or by executing an order form that references this agreement, You agree to the terms of this agreement. If You are entering into this agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these terms and conditions. In which case the terms “You” and “Your” shall refer to such entity. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this agreement and may not use the services.
MindGenius Online will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of MindGenius Online. MindGenius reserves the right to change these terms at any time, effective upon the posting of modified terms and MindGenius will make every effort to communicate these changes to You via email or notification via the Website.
It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website.
These Terms were last updated on 14th December 2016. It is effective between You and Us as of the date of You accepting this agreement.
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which MindGenius may change from time to time on notice to You).
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
means any data inputted by You or with Your authority into the Website.
“Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
means MindGenius Limited which is registered in Scotland SC312478 with a registered office at Titanium 1, King’s Inch Place, Renfrew, PA4 8WF.
means the online software solution that are ordered by You under an order form or provided to You under a free trial, and made available (as may be changed or updated from time to time by MindGenius) via the Website.
means the person who registers to use the Service, and, where the context permits, includes any company or entity on whose behalf that person registers to use the Service.
“We”, “Us” or “Our”,
means MindGenius Limited
means the Internet site at the domain www.mindgenius.com or any other site operated by MindGenius.
means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
- Use of Software
MindGenius grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User;
- the Subscriber is responsible for all Invited Users’ use of the Service;
2.1 Free Trial. If You register on Our website for a free trial, We will make Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Services, or (b) the start date of any Purchased Service subscription ordered by You for such Service, or (c) termination by Us in Our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
If at the end of the free trial You choose not to purchase Services then You will be offered a Freemium Subscription at no charge. This subscription will have restrictions with regards access to data inputted during the free trial. In addition, the terms for Freemium Subscription are subject to change. We reserve the right to delete the account and the data within a Freemium account due to inactivity. We will give You at least 10 days prior notice that we intend to delete Your account and associated data before deleting Your account and associated data.
- Our Responsibilities
3.1 Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable MindGenius standard support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which We shall give advance electronic notice, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, or Internet service provider failure.
3.2 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data. These safeguards will include, but will not be limited to, measures for preventing access, use, modifications or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as You expressly permit in writing
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
- Your Obligations
4.1 Payment obligations. Unless otherwise provided in the applicable Order Form (a) access to Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same price as the underlying subscription price, prorated for the portion of the subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
- Usage Limits. Services are subject to usage limits, including, for example, the quantities of users specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service.
- Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Order Forms and applicable laws and government regulations.
- Access Conditions
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify MindGenius of any unauthorised use of Your passwords or any other breach of security and MindGenius will reset Your password and You must take all other actions that MindGenius reasonably deems necessary to maintain or enhance the security of MindGenius’s computing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- Not attempt to undermine the security or integrity of MindGenius’ computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
- Fees and Payment for Purchased Services
6.1.Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) quantities purchased cannot be decreased during the relevant subscription term.
6.2.Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 7.3 (Manner of Giving Termination Notice) for billing notices, before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
- TERM AND TERMINATION
7.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
7.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
7.3. Manner of Giving Termination Notice. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to MindGenius must be sent to support@MindGenius.com or to any other email address notified by email to You by MindGenius. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
7.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 7.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
7.5 Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
7.5.1 remain liable for any accrued charges and amounts which become due for payment before or after termination; and
7.5.2 immediately cease to use the Services and the Website.
7.6. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
7.7 Trial Policy. When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day You first added Your billing details into the Services.
7.8. Surviving Provisions. The sections titled “Fees and Payment for Purchased Services,”,” “Confidentiality and Privacy,” “Mutual Indemnification,” “Limitation of Liability,” “Intellectual Property,” “Warranties and Acknowledgement,” and “General Provisions” will survive any termination or expiration of this Agreement.
8 MUTUAL INDEMNIFICATION
8.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defence and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Warranties and Acknowledgements”, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against You arises from Data, a Non-MindGenius Application or Your use of the Services in violation of this Agreement or applicable Order Forms.
8.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services in violation of the Agreement, Order Form or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defence and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
- Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
9.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
9.2 Each party’s obligations under this clause will survive termination of these Terms.
9.3 The provisions of clauses 9.1 and 9.2 shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
- Intellectual Property
10.1 General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of MindGenius (or its licensors).
10.2 Ownership of Data: Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the MindGenius Access Fee when due. You grant MindGenius a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
10.3 Backup of Data:. MindGenius adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. MindGenius expressly excludes liability for any loss of Data no matter how caused.
10.4 Third-party applications and Your Data. If You enable third-party applications for use in conjunction with the Services, You acknowledge that MindGenius may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. MindGenius shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
11. Warranties and Acknowledgements
11.1 Authority: You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
11.2 Acknowledgement: You acknowledge that:
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person You have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
- MindGenius has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and You agree that MindGenius has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address;
- The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk.
- MindGenius does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. MindGenius is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- No warranties: MindGenius gives no warranty about the Services. Without limiting the foregoing, MindGenius does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
- Limitation of Liability
- To the maximum extent permitted by law, MindGenius excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of MindGenius’s negligence or failure to comply with these Terms, any claim by You against MindGenius arising from MindGenius’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 7.3.
13. Help Desk
13.1 Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting MindGenius. If You still need technical help, please check the support provided online by MindGenius on the Website or failing that email us at firstname.lastname@example.org.
13.2 Service availability: Whilst MindGenius intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason MindGenius has to interrupt the Services for longer periods than MindGenius would normally expect, MindGenius will use reasonable endeavours to publish in advance details of such activity on the Website.
- General Provisions
- Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
- Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment: You may not assign or transfer any rights to any other person without MindGenius’s prior written consent.
- Governing law and jurisdiction: This Agreement is governed by the laws of Scotland and You hereby submit to the exclusive jurisdiction of the courts of Scotland for all disputes arising out of or in connection with this Agreement.
- Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
- Rights of Third Parties: A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.