MINDLINK SOFTWARE - STANDARD LICENSE & SERVICE AGREEMENT

 

This "Agreement" is a legal contract between you (either an individual or an organisation, hereafter the "Customer”) and MindLink Software Ltd ("MindLink"), for computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "Software") and services subscribed for, including hosting and other outsourced functions (the "Services"). If you are agreeing to this Agreement for use of the Software or Services by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Software or Services (together the "Products").

 

1. LICENSE TO USE THE PRODUCTS

“Affiliate” means an Entity of Licensee, directly or indirectly, controlled by, controlling, or under common control of Licensee, or its parent. An Entity which is not a majority owned subsidiary of the Licensee shall only be deemed an Affiliate following execution and delivery to MindLink of a written joinder to this Agreement.  The provisions contained in this Section 1 and 3 herein notwithstanding, all rights granted under this Agreement to Customer will extend to Customer’s affiliates, which currently exist that (i) control, (ii) are controlled by, or (iii) are under common control with Customer (“Affiliates”).  An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership or voting securities, by contract, or otherwise.

‘Confidential Information’ means all information disclosed by one party (“disclosing party”) to the other party (“receiving party”), before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by the receiving party to the extent that it contains, reflects, or is derived from Confidential Information.  Confidential Information of MindLink includes, without limitation, the Software and Documentation.  The terms and conditions of this Agreement are Confidential Information; however, the existence of this Agreement is not Confidential Information.

Computer System’ means the hardware equipment specified in the Schedule on which the Software is licensed to run, and may be comprised of (i) a stand-alone computer, (ii) a single network server with multiple terminals, or (iii) multiple network servers with multiple terminals.

Consultancy Services’ means general and all related consultancy services to be provided by MindLink and more particularly described in the Schedule.

Documentation’ means the published user manuals and documentation relating to the Software supplied by MindLink to the Customer as specified in the Schedule.

Enhancements’ means any minor fixes, updates, or subsequent point releases (designated as to the right of the decimal point) of the Software that MindLink may make generally available to customers at no additional cost. For the avoidance of doubt, Enhancements shall not include Upgrades or new versions of the Software which MindLink decides, in its sole discretion, to make generally available as a separately priced item, unless otherwise specified in the Schedule.

Licence’ means permission to use MindLink software or access to data that pass through MindLink Software on non-exclusive basis, and subject to the listed conditions.

Products’ means the Software and the Documentation as listed in the Schedule.

Schedule’ means the schedule to this Agreement and which is incorporated into this Agreement.

 ‘Software’ means (i) the machine-readable object code version of the computer programmes described in and specifically listed in the Schedule, (ii) Enhancements, (iii) Modifications, (iv) upgrades, (v) new releases/versions [including where applicable Third Party Software].

Software Support’ means the support services for the Software listed as such in the Schedule.

Third Party Software’ means all software owned by a third party, but legally licensed for distribution by MindLink as part of the Software, as specified in the Schedule.

 ‘Upgrades’ means any major subsequent release (designated as to the left of the decimal point) of the Software or Documentation that MindLink may make available to Customer if so provided under the Schedule. For the avoidance of doubt, Upgrades shall not include new versions of the Software which MindLink decides, in its sole discretion, to make generally available as a separately priced item.

 ‘User’ means any device that has the capability of accessing or receiving data from any of the MindLink Programs that are licenced to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities.

"Use Terms" means MindLink’s then-current Software Use Rights Schedule

‘Version’ means a major release of the Software, as designated by MindLink and utilizing MindLink’s numbering system.X.X (e.g., Version 2.X) including all minor release attendant to that Version (e.g., 2.X.Y.).

 

2. LICENCE TO USE PRODUCT

2.1. MindLink grants to the Customer a non-exclusive, non-transferable and revocable licence ("Licence") to use the Products with these terms and conditions including its termination provisions. One License is required for each individual "User" of the Products.

2.2. The Customer is licensed to install and access the Software through an internal network, provided there is a paid License for each User given access.

2.3. MindLink may update the Products from time to time. If MindLink changes the Products in a manner that materially reduces their functionality, MindLink will inform the Customer via the email address associated with the account.

2.4. MindLink may provide the Customer with support related to the Products ("Support Services"). Any supplemental software code provided to the Customer as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement. With respect to technical information the Customer provides to MindLink as part of the registration of the Customer's License to the Software or in connection with the Support Services, MindLink may use such information for its business purposes, including for product support and development.

2.5. Each licence grants the connectivity to MindLink Server directly or indirectly by accessing to the data that pass through MindLink Software.

 

3. CUSTOMER OBLIGATIONS

3.1. The Customer is responsible for use of the Products by its Users. The Customer will obtain from Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow MindLink to provide the Products. The Customer will comply with laws and regulations applicable to the Customer's use of the Products, if any.

3.2. The Customer may specify Users as "Administrators". Administrators may have the ability to access, disclose, restrict or remove Customer data in or from the Products. Administrators may also have the ability to monitor, restrict, or terminate access to the Products. MindLink's responsibilities do not extend to the internal management or administration of the Products. The Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators' use of the Products complies with this Agreement.

3.3. The Customer will prevent unauthorized use of the Products by its End Users and terminate any unauthorized use of or access to the Products. The Customer will promptly notify MindLink of any unauthorized use of or access to the Products.

3.4. The Customer may not rent, lease or lend the Software. The Customer may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

3.5. Without prejudice to any other rights, MindLink may terminate this Agreement if the Customer fails to comply with the terms and conditions of this Agreement. In such event, the Customer must destroy all copies of the Software Application and all of its component parts, and MindLink may suspend or deactivate use of the Software with or without notice.

 

4. INTELLECTUAL PROPERTY RIGHTS AND COPYRIGHT

No title or rights of ownership, copyright or any other intellectual property in the Products, including all upgrades, modifications, new versions and releases of the Products, is or will be transferred to the Client.

All title and copyrights in and to the Software (including, without limitation, any images, photographs, animations, video, audio, music, text, Bots, addins and "applets" incorporated into the Software), the accompanying media and printed materials, and any copies of the Software are owned by MindLink. The Software is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material, subject to the provisions of this Agreement.

5. FEES & PAYMENT

5.1. The Customer will pay, and authorizes MindLink to charge using the Customer's selected payment method, for all applicable fees. Fees are non-refundable except as required by law. The Customer is responsible for providing complete and accurate billing and contact information to MindLink. MindLink may suspend or terminate the Services if fees are past due.

5.2. The annual Subscription license fees for all software shall be payable in full thirty (30) days from the Start Date and then annually thirty (30) days in advance of the Annual Renewal Date.

5.3. At the end of the Initial Term the annual Subscription license fees will increase at the start of each subsequent Term at a rate of UK CPI, or 2.5%, whichever is greater.

5.4. The Customer is responsible for all taxes. MindLink will charge tax when required to do so. If the Customer is required by law to withhold any taxes, the Customer must provide MindLink with an official tax receipt or other appropriate documentation.

5.5. If the Customer requires the use of a purchase order or purchase order number, the Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a the Customer purchase order will not apply to this Agreement and are null and void.

5.6. All undisputed invoices are payable 30 days after receipt. Undisputed payments which are not received when due will be considered late and will remain payable by the Client together with interest from the due date at a rate of 1% per month. This interest will accrue on a daily basis.

 

6. TERM & TERMINATION

6.1. This Agreement may be terminated by MindLink immediately by notice in writing if the Client fails to pay any sums due under this Agreement by the due date and / or if the Client becomes unable to pay its debts as they fall due.

6.2. This Agreement may be terminated by the Customer after the first anniversary of the Agreement upon sixty (60) days written notice to MindLink and upon receipt by MindLink of 70% of the Software License Fees for the remainder of the then current term, be this the Initial Term or a subsequent twelve (12) month Term.

6.3. On termination of this Agreement the Client will be obliged to certify in writing to MindLink within 30 days of termination that it has erased the Products from its computers and from its magnetic media and that it has no ability to reproduce the Products in any way, and it will immediately return to MindLink all related documentation belonging to MindLink.

6.4. If the customer is in a trial period, MindLink Will automatically charge THE ANNUAL SOFTWARE LICENSE FEES at the end of the trial ON THE ANNUAL RENEWAL DATE unless the customer notifies MindLink that the customer wISHES to cancel PRIOR TO THE COMMENCEMENT OF THE INITIAL TERM AS OF THE ANNUAL RENEWAL DATE.

6.5. The Subscription agreement will automatically renew for an additional twelve (12) month period (the Term) upon expiration of the Initial Term or the then current Term unless the Client notifies MindLink in writing, or via email to contracts@mindlinksoft.com, of its desire to terminate the Schedule at least sixty (60) days prior to the expiration of the then current Term. Subscription license fees for all renewal terms shall be payable in full thirty (30) days in advance of the commencement of such renewal Term. Any fees not received as specified in this paragraph shall be subject to the Payment Terms outlined above.

  

7. DISCLAIMER OF WARRANTIES

THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MINDLINK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT MINDLINK DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR SERVICES OBTAINED BY YOU FROM MINDLINK OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

 

8. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT OF THE LAW, UNDER NO CIRCUMSTANCES SHALL MINDLINK BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, MINDLINK SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF ONE HUNDRED (£100) BRITISH POUNDS. THE PROVISIONS OF THIS SECTION

ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

 

9. INDEMNIFICATION

The Customer shall defend, indemnify, and hold harmless MindLink from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from the Customer’s breach of this Agreement, any of the Customer’s content that is uploaded, posted or otherwise transmitted to or through the Products, or the Customer’s other access, contribution to, use or misuse of the Products. MindLink shall provide notice to the Customer of any such claim, suit or demand. MindLink reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this section. In such case, the Customer agrees to cooperate with any reasonable requests assisting MindLink’s defence of such matter.

 

10. CONFIDENTIALITY

The Customer acknowledges that the Products constitute and incorporate confidential and proprietary information developed or acquired by or licensed to MindLink. The Customer hereby undertakes to MindLink to receive and hold the Products in the strictest confidence and further to take all reasonable security precautions in the safekeeping of the Products and in preventing its unauthorised disclosure to third parties, applying no lesser security measures to it than to its own confidential information.

 

11. GENERAL

11.1. This Agreement is governed by and construed according to English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

11.2. The failure of MindLink to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement constitutes the entire agreement between the Customer and MindLink and governs the Customer's use of the Products, superseding any prior agreements between the Customer and MindLink (including, but not limited to, any prior versions of this Agreement).

11.3 MindLink may include customer's name on marketing material e.g. website and produce a case study of customers use of the software for MindLink marketing purposes.

 

12. SOFTWARE SUPPORT 

MindLink shall provide Standard Software Support at Customer’s request.  Customer’s right of access by e-mail to personnel employed or otherwise engaged by MindLink for the purposes of providing the Software Support (“Support Personnel”) during MindLink’s normal working hours of 9.00 am to 5.00 pm, Monday to Friday, excluding Saturday and Sunday and any day that in England is a public holiday (UK). support@mindlinksoft.com

 

WHO CAN I CONTACT IF I HAVE QUESTIONS REGARDING THE TERMS OF SERVICE?

If you have any questions or comments regarding this Privacy Statement, please send us an email at info@mindlinksoft.com

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