Master Subscription and Services Agreement
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES. THIS AGREEMENT APPLIES TO THE SERVICES YOU ARE USING IN CONNECTION HEREWITH AND THAT ARE BROUGHT TO YOU BY MINDTICKLE, INC OR MINDTICKLE INTERACTIVE MEDIA PRIVATE LIMITED WHICH OWNS AND OPERATES THE SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE TO ALL 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 ALL OF 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 UNCONDITIONALLY AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU WILL NOT HAVE ANY RIGHT TO 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.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOUR ACCEPTING THIS AGREEMENT. OUR ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
“Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with You or Us, where control means the ownership of a majority share of the stock, equity or voting interests of such entity.
“Agreement” means this Master Subscription and Services Agreement.
“Documentation” means any help pages or other end-user documentation provided by Us to describe the functionality of the Services or how to use the Services.
“Malicious Code” means (i) any code, program, or sub-program the knowing or intended purpose or effect of which is to damage or maliciously interfere with the operation of System such as the System or to halt, disable, or interfere with the operation of the Services or the System, or (ii) any device, method, or token that permits any person to circumvent without authorization the normal security of the Services or the System.
“Order” or “Order Form” mean any MindTickle subscription-based ordering document signed by both You and Us or our respective Affiliates, and specifying the Services to be provided. By entering into an Order, You or Your Affiliate agrees to be bound by the terms of this Agreement.
“Provisioning Documents” means Orders and SOWs, collectively.
“Services” shall refer both individually and collectively to Subscription Services or Professional Services, defined below, provided by Us to You pursuant to this Agreement as described in one or more SOWs signed by You and Us and including any relevant attachments. “Subscription Services” includes Our online learning and enablement system software offered as a service. “Professional Services” includes any professional and/or consulting services.
“Statement of Work” means a document that describes Professional Services to be provided by us, together with the cost and timing, if any.
“System means the MindTickle software or systems that are used to deliver the Services.
“User” means an individual who is authorized by You to use a Service and who is registered with a user ID and password to access the Service. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business. You, any of Your authorized end users (“End Users”) and administrative account users (“Admin(s)”) shall also be considered “Users”.
“We,” “Us” or “Our” means MindTickle, Inc, or an Affiliate of MindTickle, Inc.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
“Your Data” means any electronic data, content, files, documents and information You load into, use, display, collect, create, or distribute through your use of the Subscription Services and for which You own or have secured the right to use.
1. Agreement Scope; Services.
1.1 Scope. This Agreement applies to Your use of the Services under any Provisioning Document. An Order will include the fees for the Services (“Fees”), the effective date of the Order and length of term (“Subscription Term”), and number of Users (as defined herein). This Agreement and all Provisioning Documents, including any addenda, exhibits and documents, whether physical documents or documents available online, referenced by URL and incorporated into this Agreement by reference, constitute the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Provisioning Documents.
1.2 Procurement and Provisioning by Affiliates. You may procure the Services under this Agreement for Your own self and on behalf of one or more Your Affiliates (“Customer Affiliate”). You are responsible for the acts and omissions of Customer Affiliates under any Provisioning Document pursuant to which the Customer Affiliate receives the benefit of the Services but is not a signatory. Customer Affiliates who sign a Provisioning Document will be deemed to be “You” and solely responsible for its performance or non-performance thereunder.
1.3 Subscription Services Users. During the Subscription Term set forth in each Order, We will make the Subscription Services available to User which may be Your Affiliates, employees, agents or contractors. The number of Users shall be set forth in the Order. You shall assign each User a Log-In (as set forth in Section 2.5). You acknowledge that the licenses to access the Subscription Services hereunder are provided on an assigned User basis. Where a User no longer requires access to the Subscription Services (e.g., User no longer is employed or engaged by You), You may deactivate the Log-In for such User and re-provision it to a new User provided that all data associated with the previous User may be removed or deleted from the Subscription Services by Us. Users may access and use the Subscription Services solely for Your internal business purposes in accordance with the terms of this Agreement. You are responsible for use of the Subscription Services by Users and any party who accesses the Subscription Services with a User’s account credentials.
1.4 Upgrades; Modifications; Improvements and Enhancements. We shall have sole discretion as to whether to make updates, improvements, modifications or enhancements or add new features (“Updates”) to the Subscription Services, and reserves the right to do so at any time, provided that such Updates do not materially and adversely impact the Services nor result in any increase of the price of the Services during the Subscription Term. Any such Updates are deemed part of the Subscription Services and shall be subject to this Agreement.
1.5 Service Level Agreement. The Application Availability service level agreement (“SLA”) is set forth at https://www.mindtickle.com/service-level-agreement/ and is incorporated into this Agreement by reference. The Subscription Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or other causes beyond Our reasonable control. We will use reasonable efforts to provide advance notice of any scheduled unavailability of the Subscription Services.
2.1 Restrictions. You will not, and will ensure that Your Users do not, directly or indirectly (i) make the Subscription Services available to anyone other than Users or use the Subscription Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (iv) modify, translate or create derivative works based on the Subscription Services or remove any proprietary notices or labels from the Subscription Services; (v) use or access the Subscription Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Subscription Services; (vi) include the Subscription Services in a service bureau or outsourcing offering; (vii) knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Our provision of the Subscription Services; (viii) keep the Subscription Services confidential and not disclose the Subscription Services to any competitor of MindTickle or other third parties. You also agree that You will, and will ensure that Your Users, use the Subscription Services only in compliance with the MindTickle Acceptable Use Policies as set forth at https://www.mindtickle.com/acceptable-use-policy/ which are incorporated into this Agreement by reference.
2.2 Virus and Malicious Code. Neither You nor any User, will insert nor permit the insertion or introduction of any Malicious Code into the System.
2.3 Minimum Standards. You and Your Users will provide and maintain all hardware, software and network connectivity (“Environment”) needed to access the Internet and the Subscription Services that meet the standards provided on MindTickle’s website at http://www.mindtickle.com/browsers-and-device-support/ which may be revised by Us from time to time and communicated to You and/or updated on the Our website
2.4 Links to/from Third Party Sites. The Subscription Service may allow You or Your Users to (i) leave the Subscription Services and/or access third party websites and content, (ii) access the Subscription Services through third party websites, or (iii) embed links to third party content as or into Your Data (any of the foregoing, “Links” or Linked Sites”). Any such Links or Linked Sites are not under the control of MindTickle, are used at Your sole risk, and We are not responsible for the contents of any Linked Site, any Link contained in a Linked Site, any changes or updates to Linked Sites, or the performance or security of Linked Sites. Any content accessed by You through Links or Linked Sites shall be subject to such agreement as is entered between You and the relevant third party content provider.
2.5 Log-Ins; Security. You are responsible for administering usernames and passwords for all Users (the “Log-In Information”) and for any User’s access granted to the Subscription Services. Log-In Information (which includes log-ins by means of single sign on) may be used only by the assigned User and may not be shared. You are responsible for maintaining the security of the Equipment and Your Log-Ins. To the extent within Your control, You will take reasonable measures to prevent unauthorized third parties from accessing the Subscription Services. You shall be liable for all acts and omissions of its Users, and for any resulting loss that You or a User may incur due to the unauthorized use of a Users’ Log-Ins or accounts.
2.6.1 Customer Violation. We may immediately suspend Your access to the Subscription Services if (i) You fail to make payment for undisputed Fees due within 10 business days after We have provided You with written notice of such failure; or (ii) You violate this Section 2, or Section 9 (Confidential Information). We will provide You the basis for suspension (“Violation”) together with reasonable assistance, where possible, to prevent or resolve the basis for such Violation. Any such suspension will be to the minimum extent, and of the minimum duration, reasonably required to prevent or resolve the Violation.
2.6.2 Emergencies. We may immediately suspend Your access to the Subscription Services if: (i) We become aware of what We, in Our sole discretion, deem a credible claim that the Subscription Services infringe upon the intellectual property rights of a third party; (ii) if required to do so by law or (iii) if there is an event for which We reasonably believe suspension of Subscription Services is necessary to protect Our network or Our other customers (e.g., DDoS, a security incident, etc.). In each case, We will give you advance notice of pending suspension or termination of at least twelve (12) hours, unless We determine, in Our reasonable discretion, that no notice or shorter notice is necessary to protect Us, Our customers, or others. Any such suspension will be to the minimum extent, and of the minimum duration, reasonably required to prevent or resolve the basis for such suspension. Any suspension by Us of the Subscription Services under this Section 2.6 will not relieve You of Your payment obligations hereunder.
3. Ownership; Use of Your Data and Statistical Information.
3.1 Subscription Services. You acknowledge that the Subscription Services are offered online on a subscription basis. As between the Parties, We own and reserve all rights, title, and interest in and to the Subscription Services, including any software or documents related to or provided with the Subscription Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto (“MindTickle IP”). From time to time, You or Your Users may submit to Us comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Subscription Services (“Feedback”). You agree that We have all rights to use and incorporate Feedback into the Subscription Services without restriction or payment to You. No rights are granted to You other than as expressly set forth herein.
3.2 Results. We retain all ownership rights to all materials including background and training materials, data, processes, tools, methodologies, results, reports, presentations or any other information or material generated or developed by Us through the use of or derived from MindTickle’s Confidential Information or the MindTickle IP. You retain all ownership rights any materials generated or developed by Us and exclusively derived from the Your Data (e.g., edited, modified, reformatted versions of Your Data, all of which shall be deemed part of “Your Data”).
3.3 Your Data. You will be solely responsible for (i) the accuracy, quality, content, legality and use of Your Data, including the means by which Your Data is acquired and transferred by Your or Your Users outside of the Services, (ii) obtaining any licenses, permissions or authorizations required for any use of Your Data, and (iii) complying with all applicable terms and conditions of any third party website related to Your Data obtained from such third party website or its use in connection with the Services. You hereby grant Us the right to use Your Data solely as necessary to provide or to assist You in the use of the Services.
3.4 Statistical Information. We may monitor Your and Your Users’ use and the operation of the Services and compile such data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Services (“Statistical Information”). We may make such Statistical Information publicly available, provided that such information does not include any data that would enable the identification of You or disclose Your Confidential Information. We retain all rights, title and interest in and to such Statistical Information.
4.1 Fees. You will pay all fees set forth in the Provisioning Documents and any fees invoiced pursuant to this Agreement. All fees are non-cancelable and non-refundable, except as expressly specified in this Agreement. Professional Services will be provided on a time and materials (“T&M”) basis unless otherwise set forth in the SOW. If an estimated total amount is stated in the SOW, that amount is a good faith estimate and not a guarantee the Professional Services will be completed for that amount.
4.2 Overages. You will, at all times, ensure that Your use of the Subscription Services does not exceed the usage terms specified in the Order (“Usage Rights”). If We determine that you are exceeding the Usage Rights (an “Overage”), We will notify You, and We have the right to charge You, and You agree to pay, for the Overage from the date the Overage commenced through the end of the then current Subscription Term at (i) Our then-current rates, or (ii) if addressed in the Order, at such rates as set forth in such Order, which will be co-termed with the Subscription Term in the original Order.
4.3 Taxes and Currency. All fees are exclusive of, and You will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services. You are not responsible for any taxes based on Our net income or property. Except as otherwise specified in a Provisioning Document, all fees due hereunder will be paid in U.S. Dollars.
4.4 Invoices. All amounts are due and payable as specified in the Provisioning Documents. If no payment terms are specified in the applicable Provisioning Documents, payment terms are net 30 days from receipt of invoice. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
4.5 SOW Expenses. You will be responsible for all reasonable travel expenses, hotel accommodations and any other reasonable out-of-pocket expenses incurred by Us in connection with the Professional Services, as set forth in the SOW or subject to Your prior written approval (email shall suffice).
5. Term and Termination.
5.1 Term. Subject to earlier termination as provided below, this Agreement shall remain in effect until all Orders have terminated or expired, or if this Agreement is otherwise terminated in accordance with the terms hereunder. Unless stated otherwise in the Order, the Subscription Term may be renewed, subject to the mutual agreement of the Parties, for subsequent twelve (12) month periods. Notwithstanding the foregoing, if immediately following the expiration of the Subscription Term in any Order, the Parties are negotiating a renewal of such Order, the Agreement Term will remain in effect for a reasonable period of time to allow the Parties to effect such renewal. Nothing contained herein will extend the Subscription Term set forth in any Order.
5.2 Termination for Cause. In the event of a material breach by either Party, the non-breaching Party will have the right to terminate the applicable Provisioning Document for cause if such breach has not been cured within 30 days after written notice from the non-breaching Party specifying the breach.
5.3 Effect of Termination. If We terminate this Agreement and/or a Provisioning Document for Your uncured material breach (i) all fees set forth in the terminated Provisioning Document will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) all unpaid Overages shall be also immediately due and payable. If You terminate a Provisioning Document for Our uncured material breach, You will be entitled to a pro-rata refund for applicable prepaid fees under such terminated Provisioning Document for the Services not performed calculated from the date of termination. Upon completion of the Agreement Term, all rights to access and use the Subscription Services will terminate. Notwithstanding the foregoing, at Your request if received within 30 days of termination of the Order (“Grace Period”), We shall make available to You any of Your Data then in Our possession in such format as mutually agreed on. After such Grace period, You acknowledge and agree that We have no obligation to retain Your Data and that We will irretrievably delete and destroy Your Data. If You request it in writing, We will certify to such destruction in writing.
5.4 Survival. The following sections of this Agreement will survive the termination of the Agreement: Section 2.1 (Restrictions), Section 3 (Ownership, Use of Your Data and Statistical Information), Section 4 (Payments), Section 5 (Term and Termination), Section 6.5 (Warranties Disclaimer), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidential Information) and Section 11 (General Terms).
6. Warranties; Warranty Remedies; Warranties Disclaimer.
6.1 General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
6.2 Subscription Services Warranty. We warrant the Subscription Services, under normal use, will (i) perform materially in accordance with the applicable Documentation provided by Us; (ii) be provided in a manner consistent with generally accepted industry standards; and (iii) conform to the SLA (subject to the remedies set forth in the SLA).
6.3 Professional Services Warranty. We warrant the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards and the specifications set forth in the SOW.
6.4 Warranty Remedies.
6.4.1 You will notify MindTickle of any material breach of the warranties (“Warranty Deficiency”) under Sections 6.2 and 6.3 within 30 days of the performance of the relevant MindTickle Services, and Your exclusive remedy will be the re-performance of the Warranty Deficiency. If MindTickle cannot re-perform such Warranty Deficiency and provide the MindTickle Services as warranted, You will be entitled to terminate the deficient MindTickle Services, as applicable, and recover a pro-rata portion of the fees paid to MindTickle for such deficient MindTickle Services.
6.4.2 If MindTickle meet the Service Commitment set forth at https://www.mindtickle.com/service-level-agreement/, MindTickle shall provide the Service Credits as set forth in the SLA.
6.4.3 The foregoing shall be Customer’s exclusive remedies and MindTickle’s entire liability with respect to the warranty commitments set forth in Sections 6.2 and 6.3.
6.5 WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR THIRD PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WE DO NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT WE WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. WE DISCLAIM ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELECOMMUNICATIONS FACILITIES OR EQUIPMENT, OR NETWORKS THAT ARE NOT CONTROLLED BY US. IN THE EVENT ANY DISCLAIMER IN THIS SECTION CONFLICTS WITH THE SLA, THE TERMS OF THE SLA SHALL GOVERN WITH RESPECT TO THAT SPECIFIC DISCLAIMER.
7.1 MindTickle. We will defend You against any claim brought against You by a third party alleging the Services as provided by Us directly infringe the U.S. patent, copyright, or trademark rights of the claimant and will pay You for finally-awarded damages and costs and MindTickle-approved settlements of the claim. Our obligations to defend or indemnify will not apply to the extent a claim is based on (i) Your Data, or Your or a third party vendor’s technology, software, materials, data or business processes; (ii) a combination of the Services with non-MindTickle products or services; or (iii) any use of the Services not in compliance with this Agreement. We may, in Our discretion and at no cost to You, (a) modify the Services to avoid infringement; or, if applicable, (b) terminate Your subscriptions for the affected Subscription Services and refund You any related prepaid fees for the remainder of the Subscription Term.
7.2 Customer. You will defend Us against any claim brought against Us by a third party alleging (i) Your Data infringes the intellectual property, privacy or other rights of the claimant; or (ii) Your use of the Services, other than as authorized in this Agreement, violates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay Us for finally-awarded damages and costs and settlements of the claim approved by You.
7.3 Procedure. As a condition to the indemnifying Party’s obligations under this Section 7, the Party seeking indemnification must (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS SECTION STATES THE INDEMNIFIED PARTY’S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY’S TOTAL LIABILITY REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 7.
8. Limitation of Liability. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR YOUR PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE FEES INVOICED TO YOU UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. Confidential Information. Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may during the Agreement Term and in connection with the Services disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential and/or proprietary given the nature of the information and circumstances of disclosure (“Confidential Information”). The Recipient agrees (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as set forth herein and only to those of its employees and contractors who need access for purposes consistent with this Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information that the Recipient can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Discloser. If the Recipient is required by law or court order to disclose Confidential Information, it will give prior written notice to the Discloser (to the extent legally permitted) and reasonable assistance at the Discloser’s cost to contest the disclosure. Recipient acknowledges that the breach or threatened breach of this Agreement may result in irreparable injury to Discloser and that, in addition to its other remedies, the Discloser shall be entitled to seek such temporary and permanent injunctive relief it deems necessary to restrain any threatened or continued breach of this Agreement.
10. Insurance and Security.
10.1 Insurance. We will, at Our expense, procure and maintain throughout the Agreement Term insurance policies and coverages required by law applicable to its business operations and sufficient to support and cover its obligations hereunder. All such policies shall be issued by reputable and financially sound insurance companies authorized to do business in the geographic area where the Services are to be performed. Upon Your written request, We shall furnish You with a certificate of insurance evidencing that such policies are in full force and effect.
11. General Terms.
11.1 Notice. We may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Your e-mail address on record in Our account information. All legal or dispute-related notices to Us will be sent by first class mail or express delivery to: MindTickle, attention President, at 55 2nd Street, Suite #550, San Francisco CA 94105.
11.2 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either Party may cancel unperformed Services upon written notice. A force majeure event shall not excuse Your obligations to make timely payment.
11.3 Governing Law. Unless specifically set forth in the applicable Provisioning Document (i) any action, claim, or dispute between the Parties will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts California. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than 2 years after the cause of action has accrued.
11.4 Entire Agreement. This Agreement represents the Parties’ entire understanding relating to the Services and supersedes any prior or contemporaneous agreements or understandings regarding the Services. In the event of a conflict between this Agreement and a contemporaneous or later-dated Provisioning Document, the terms of the contemporaneous or later-dated Provisioning Document will control. No terms, provisions or conditions of any purchase order, acknowledgement or other business form You may use in connection with the acquisition of Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure by Us to object to such terms, provisions or conditions.
11.5 Amendment / No Waiver. This Agreement may be amended only by written agreement signed by the Parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
11.6 Assignment; Subcontracting. No joint venture, partnership, employment, or agency relationship exists between Us and You as a result of the Agreement or use of the Services. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party, except that either Party may assign or transfer this Agreement in connection with a merger or acquisition of all or substantially all of the assets of the assigning company (other than to a direct competitor of the non-assigning Party and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning Party with prompt written notice of assignment. Any purported assignment in violation of this section will be void. MindTickle may use subcontractors to perform Professional Services; MindTickle will remain responsible for the performance of such Professional Services by any such subcontractor and otherwise for any subcontractor’s compliance with the terms of this Agreement.
11.7 Compliance with Laws. Each Party agrees to abide by all applicable federal, state, local laws and regulations in the performance of this Agreement.
11.8 U.S. Government Matters. Notwithstanding anything else, You may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing You acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and Documentation provided by Us are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11.9 Customer Reference. We are permitted to disclose that You are one of Our customers to Our prospective customers and business partners in emails and one-on-one presentations. Any other public use of Your name or trademarks or logos by Us shall be subject to Your prior written permission.
11.10 Counterparts and Electronic Signatures. This Agreement (including Provisioning Documents) may be executed in counterparts, by pdf or other electronic means to accurately send images, or by electronic signature service.
The following sections replace those set forth in the Agreement above with respect to Customers who are executing the Provisioning Documents with MindTickle Interactive Media Pvt. Ltd. for the purchase of Services in India:
4.3 Taxes and Currency. All fees are exclusive of, and You will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, national or foreign jurisdiction governmental assessments on the Services. You are not responsible for any taxes based on Our net income or property. Except as otherwise specified in a Provisioning Document, all fees due hereunder will be paid in Indian Rupees.
7.1 MindTickle. We will defend You against any claim brought against You by a third party alleging the Services as provided by Us directly infringe the patent, copyright, or trademark rights of the claimant registered in India and will pay You for finally-awarded damages and costs and MindTickle-approved settlements of the claim. Our obligations to defend or indemnify will not apply to the extent a claim is based on (i) Your Data, or Your or a third party vendor’s technology, software, materials, data or business processes; (ii) a combination of the Services with non-MindTickle products or services; or (iii) any use of the Services not in compliance with this Agreement. We may, in Our discretion and at no cost to You, (a) modify the Services to avoid infringement; or, if applicable, (b) terminate Your subscriptions for the affected Subscription Services and refund You any related prepaid fees for the remainder of the Subscription Term.
11.1 Notice. MindTickle may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer’s e-mail address on record in MindTickle’s account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to MindTickle, attention CEO, Solitaire World, Bangalore Pune Highway, Baner, Pune India 411045, and if to Customer, at the address set forth in the Order.
11.3 Governing Law. Unless specifically set forth in the applicable Provisioning Document (i) any action, claim, or dispute between the Parties will be governed by laws of India; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the courts of Pune, India. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than 2 years after the cause of action has accrued.
11.7 Compliance with Laws. Each Party agrees to abide by all applicable central, state, local, and foreign laws and regulations in the performance of this Agreement.
For our terms and conditions effective before May 1, 2018, please refer to https://www.mindtickle.com/terms-of-service-older-version