MINTMODA MASTER SERVICE AGREEMENT
This agreement governs your acquisition and use of our services.
By accepting this agreement and 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 and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates. 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. You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Use of Services
(a) MINTMODA grants you a, non-transferable, non-exclusive, limited right to access the Services, provided that you fully comply with the terms and conditions of this Agreement.
(b) You agree that you will use data, materials and information that comprise the Services, including visual interfaces, text and written compositions, videos and other audiovisual works, pictorial works such as images, photographs, graphics, pictures, illustrations, and designs, audio recordings and musical compositions, compilations, reports, and any other works of authorship (Content) that you access through use of the Services, only in accordance with the terms and conditions of this Agreement.
(c) Certain areas of the Site may only be open to you if you are a paid subscriber to that portion of the Site(s) or will only be available for a limited period of time. Any time limit applying to your access and use of any of the Site will be set out in the Order Form.
(d) Certain Content that we license from third parties may be subject to additional guidelines or rules that will be clearly posted on the Site. You are also subject to any such guidelines and rules.
(e) The Content is protected by trademarks, service marks, copyrights, and other intellectual property rights owned by MINTMODA or its Content providers. You agree not to misuse in any way the Content or the Services, including any infringement of trademarks, service marks, copyrights or other intellectual property rights comprised in the Content or Services.
(f) You agree not to use the Services for any illegal, unethical, fraudulent, misleading, or objectionable purpose or in breach of any law, regulation, or agreement, including the Privacy and Electronic Communications Regulations 2003 or other regulations regarding unsolicited email marketing.
(g) You agree not to rent, lease, loan, sell, allow, or otherwise provide access to the Services to anyone other than Client and Authorized Users.
(h) The Client agrees to take necessary measures to procure and ensure the compliance by its Authorized Users with the terms and conditions set forth in this Agreement governing the use of the Services.
2. Changes to Site and Availability of the Site
(a) As part of its policy of updating and improving the Site, MINTMODA reserves the right, at its discretion, to make changes to any part of or the whole of the Site (including by way of substitution).
(b) MINTMODA shall use its reasonable endeavors to provide reliable access to the Site, provided that MINTMODA does not undertake or warrant that access to the Site will be uninterrupted The Client shall promptly report any fault in relation to the access to the Site by telephone or electronic mail to MINTMODA at the appropriate numbers or addresses shown on the Site that MINTMODA may from time to time provide. Upon receipt of a fault report, MINTMODA will endeavor to take all proper steps without undue delay to correct the fault. MINTMODA does not undertake to provide any technical or user support in relation to any hardware (including peripherals), software, products or services used by the Client to access the Site.
(c) From time to time, MINTMODA may:
(i) temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of the Site without notice;
(ii) temporarily suspend all or part of the Site for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions; and/or
(iii) vary the technical specification of the Site for operational or any other reason provided that there is no material detriment to the operation of the Site.
(d) The Client acknowledges that there are special risks attached to the transmission of information by electronic, online or similar means and that MINTMODA is not responsible for the loss or corruption of Information in transmission by these means.
(a) The Client warrants that the information the Client has given in the Order Form is accurate and complete.
(b) To use the Site, you must register and provide MINTMODA with accurate and complete registration information.
(c) It is your responsibility to update your registration data and promptly inform MINTMODA of any changes to your information by contacting your account manager.
(d) For subscription services, as part of the registration process, MINTMODA shall assign to the Client or, at the discretion of MINTMODA, shall allow the Client to select, a user name and password. Each registration is for a single user only unless otherwise set out in the Order Form.
(e) Each additional Authorized User appointed by the Client shall be assigned (or selected at the discretion of MINTMODA) a separate user name and password for access to the Site; provided, however, that for educational institutions, Authorized Users are not required to register individually.
(f) MINTMODA does not permit any sharing by more than one person of a user name and password or access to the Site through a single name being made available to multiple users on a network; provided, however, that the foregoing restriction does not apply to educational institutions.
(g) You agree that you will not allow others to use your user name and password and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify MINTMODA immediately of any known or suspected unauthorized use of your user name and password.
4. Fees and payment for purchased services
4.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2. 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 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.
4.3. 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).
4.4. 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 13.2 (Manner of Giving Notice) for billing notices, before suspending services to you.
4.5. Payment Disputes. We will not exercise our rights under Section 4.3 (Overdue Charges) or 4.4 (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.
4.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 4.4, 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. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
4.7. 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.
5. Usage of content
(a) With respect to Content located on the Site (but excluding any Content which is clearly copyrighted to a third party), MINTMODA hereby grants you a non-transferable, non-exclusive, limited license to do the following, solely for your information, product design, development, inspiration, research and manufacturing purposes: view, download and print such Content and create derivative works of pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within the Content and use your derivative works on or in your products; provided, however, that in the case of subscribing educational institutions and their Authorized Users, your use is limited to non-commercial, educational use only. Please note that MINTMODA disclaims all warranties in relation to such Content including any warranties of title, merchantability, or fitness for a particular purpose, and such permitted use in accordance with this paragraph is solely at the Client’s own risk.
(b) Save in respect to Content located on the Site (but excluding any Content which is clearly copyrighted to a third party), the following are strictly forbidden and represent a breach of this Agreement, unless prior written consent is obtained from MINTMODA or the relevant third party Content provider:
(i) Incorporation of Content in promotional items and products (including but not limited to greeting cards, t-shirts, postcards, posters, phone cards, credit cards, templates, CD covers, cassette covers, board games, and calendars), magazines, newspapers, advertising, editorials, catalogs, flyers, brochures, disposable packaging, book covers, and educational textbooks;
(ii) Incorporation of Content in any electronic or digital materials including screensavers, electronic greeting cards, website, broadcast video, and multimedia including film and video, and CD ROMs;
(iii) Resale of Content in any form;
(iv) Incorporation of names or likenesses of individuals from Content on or in your products;
(v) Incorporation of distinctive locations, buildings, businesses, personal property or products from Content on or in your products;
(vi) Use of MINTMODA or third party trademarks, trade names or service marks on or in your products; or
(vii) Use, or permitting the use of, Content or any other information on the Site for generating any statistical information which is sold, rented published, furnished or in any manner provided to a third party.
(c) Distribution of Content to parties outside of the Client organization. You may provide pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within Content to your suppliers, vendors, independent contractors and consultants for the sole purpose of aiding you in connection with your product design, development, inspiration, research and manufacturing requirements only, subject to you being responsible at all times for the actions of such suppliers, vendors, independent contractors and consultants, and for the avoidance of doubt any other third parties with whom you share any Content, for any breach of the terms of this Agreement. The sharing of such works for the purposes stated in this paragraph is at your discretion but in no way absolves you from the full responsibilities for all terms and conditions contained within this Agreement.
(d) Any requests to republish or redistribute Content should be addressed to legal@MintModa.com and should not be considered authorized unless and until validly approved in writing by MINTMODA.
(e) MINTMODA may provide e-mails or other prompts of Content. Your use of the Content received through the e-mails or other prompts will be subject to the terms and conditions of this Agreement.
(f) Copyright in any software that is made available to you for download from the Site (Software) belongs to MINTMODA or its Software suppliers. You may not install or use any Software unless you agree to be governed by the terms of any license agreement that accompanies or is included with the Software.
(g) You acknowledge that the Content is only for your general information and use and does not constitute any form of advice, recommendation or arrangement by MINTMODA and is not intended to be relied upon by you in making any specific business or investment decisions. Any reliance by you upon any advice, opinion, statement or other information displayed or distributed through the Site is at your sole risk.
(h) Any use of the Services other than as specifically permitted above is prohibited.
You acknowledge that the software, inventions, know-how, databases, data compilations, methods, processes, designs and architecture underlying the Site (Technology) are protected by intellectual property rights. You agree that you will not (and will not allow any third parties to):
(a) Use any device, robot, spider, other automatic software or device, or any manual process, to interfere or attempt to interfere with the proper working of the Site, or to monitor use of the Site, without MINTMODA’s prior written permission;
(b) Take any action that imposes an unreasonable or disproportionately large load on the Site infrastructure;
(c) Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Technology (except that the foregoing restrictions shall only apply to the extent they are allowable under applicable law);
(d) Use any network monitoring or discovery software to determine the Site architecture, or extract information about usage, individual identities or users;
(e) Circumvent, disable, or otherwise interfere with security-related features of the Site, including any features designed to prevent, limit, or restrict use or copying of any Content; or
(f) Bypass robot exclusion headers or other similar measures MINTMODA may use to prevent or restrict access to, or caching of, the Site.
7. Representations, warranties, exclusive remedies and disclaimers
7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2. Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-SFDC Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3. Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content and beta services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
8. Limitations of liability
8.1. Limitation of Liability. Neither MintModa nor any of its content providers shall be liable for any indirect, incidental, special or consequential damages arising in connection with the services, inability to use the site or any content on the site, whether for breach of contract, tortious behavior (including negligence) or any other cause of action. In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to this agreement exceed the total amount paid by you and your affiliates hereunder for the services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit your and your affiliates’ payment obligations under the “fees and payment” section above.
8.2. Exclusion of consequential and related damages. In no event will either party or its affiliates have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
>9. Term of agreement; termination; duration of term; automatic renewal
(a) This Agreement shall commence on the date set out on the Order Form. The Agreement shall continue:
(i) in respect of a subscription for any of the Services, initially for the period set forth in the Order Form (Initial Term) and thereafter shall automatically continue for further periods equal to the Initial Term (each a “Renewal Period”) on each date following the end of the existing Term unless terminated by the Client by providing written notice not less than 90 days’ prior to the end of the existing term to legal@MintModa.com; and
(ii) in respect of all other Services, for the period set forth on the Order Form.
(b) If MINTMODA in its sole discretion permits you to continue to use the Site following expiration of the Initial Term or the Renewal Period, the terms and conditions of this Agreement shall continue to apply in respect of such use.
(c) Either party shall be entitled to terminate the Agreement with immediate effect in the event that the other:
(i) commits a material breach of the Agreement that is not remediable, or (where the breach is capable of remedy) is not remedied within 14 days after being required by notice to do so; or
(ii) becomes or is declared insolvent or takes formal steps to commence bankruptcy (including the making of a bankruptcy order) or makes or proposes any composition with its creditors or the appointment of a receiver or similar officer over or in respect of some or all of its assets or takes any steps to enter into an insolvency process including without limitation the appointment of a liquidator, administrative receiver, administrator, provisional liquidator, receiver or any other office holder over or in respect of some or all of its assets or the filing of any papers at court in respect of a moratorium or the taking of any steps for dissolution or strike off.
(d) If the Client terminates the Agreement under paragraph 10(c), MINTMODA shall refund:
(i) in the case of subscription services, to the Client the proportion of the Fee paid pro-rata for the remainder of the Initial Term or the Renewal Period, as the case may be.
(e) If MINTMODA terminates this Agreement, or suspends your account for any of the reasons set forth in paragraph 10(c), MINTMODA will not refund any amounts that you have previously paid. Further, you shall remain liable for any amounts owed to MINTMODA pursuant to the then-current Order Form and this Agreement.
(f) Upon any expiration or termination of this Agreement, all rights and licenses granted herein shall terminate, except that you may continue to manufacture and sell products that incorporate Content in accordance with this Agreement and that were designed prior to such expiration or termination; provided that the foregoing rights shall not apply if you are a subscribing educational institution or Authorized User thereof. The provisions of paragraphs 8, 9 and 10 shall survive any termination of this Agreement.
(g) These remedies are in addition to any other remedies that MINTMODA may have at law or in equity.
10. General provisions
10.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
10.2. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at firstname.lastname@example.org.
10.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
10.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
10.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11. Copyright compliance
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Site infringes your copyrights, you may submit a notification by providing MINTMODA with the following information in writing to legal@MintModa.com:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works at the Site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINTMODA to locate the material;
(d) Information reasonably sufficient to permit MINTMODA to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of these requirements, your notice may not be valid.