2. The Services
Subject to these Terms, Mine will provide Customer with the Services detailed in the applicable ordering document that references these Terms (“Order Form”). Mine may modify, adapt, or change the Services, or any of its features, user interface and design, or any other aspect related thereto, through updates and upgrades, provided that Mine will not materially decrease the overall functionality of the Services. Mine will send Customer a reasonable advance notice by email about substantial changes in the Services. Failures incidental to Services modifications may occur and Mine will not be held responsible for modification related failures, Mine will make commercially reasonable efforts to reinstate the full operability of the Services.
3. Right of Use
Subject to these Terms, Mine grant Customer a world-wide, limited, non-exclusive, non-transferable, revocable, and non-sublicensable right to access and to use the Platform for the sole purpose of utilizing the Services. All rights not specifically granted hereunder are reserved to Mine. Customer may not resell, rent, lease, transfer, lend, timeshare, assign, display or permit others to use the Platform of Services except as explicitly provided under this Agreement. Customer may allow Customer’s employees, consultants, contractors or agents (“Customer’s Users”) to access and use the Platform and Services, solely on Customer’s behalf, provided that: (A) Customer’s Users are aware and compliant with these Terms; (B) Customer’s Users are bound by a non-disclosure agreement that is no less restrictive than the confidentiality obligations under the terms of this Agreement, and (C) Customer assumes full responsibility for all acts and omissions of Customer’s Users related to their use of the Platform and Services. Customer grants Mine a right and permission to use any and all data provided or made available by Customer to Mine, for the purpose of performing the Services and exercising its rights and obligations under these Terms.
4. Lawful AND Permitted use only
Customer may use the Services for lawful purposes only. Customer may not use the Platform or Services: (A) for any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate applicable laws and regulations, including without limitation laws and regulations governing data protection and privacy; or, (B) in any manner that is not explicitly under these Terms.
5. Prohibited Uses
Customer may not, directly or indirectly, either or by itself or through any other person or entity: (A) permit any third party to access the Services; (B) use, rent, lease, sell, transfer (by sublicense, assignment or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Platform and/or any part thereof; (C) misuse, reverse engineer, decompile, or otherwise attempt to discover the source code of the Platform; (D) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or programs; (E) interfere with or disrupt the integrity or performance of the Services; (F) attempt to gain unauthorized access to the Services and related systems or networks, or systematically access the Services using “bots” or “spiders”; (G) copy, frame or mirror the Services, except for Customer’s own internal business purposes; (H) use the Services to develop or offer a service that is similar to the Services; (I) represent that Customer possess any proprietary interest in the Platform and/or Services; and (J) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Mine. The above restrictions will survive the termination of any agreement between Customer and Mine.
Customer represents and warrants that Customer are not a competitor of Mine and will not use the Services or Platform to engage in or permit others to engage in any competitive activities with Mine.
7. Services Fees
Mine’s fee-based Services can be used subject to a purchase for the prices and in accordance with the payment terms set in the applicable order form. Except as explicitly provided under these Terms, all service fees under these terms are non-refundable. Customer will assume all costs associated with Customer’s use of the Services, including, without limitation, any internet access fees and backup expenses. All Service Fees are exclusive of any foreign or domestic sales taxes, withholding taxes, use taxes and any other taxes and charges of any kind imposed by any federal, state, local or foreign governmental entity, and Customer is solely responsible for the payment thereof. Unpaid due amounts are subject to the statutory interest rate, and all payment collection expenses, including without limitation reasonable attorney’s fees.
8. Term and Termination
The term of this Agreement is set in the applicable Order Form. Except as otherwise specified in the applicable Order Form, the term of this Agreement will automatically renew for an additional 12 months, unless either party notifies the other party in writing at least 30 days prior to the end of the term indicated in the applicable Order Form. Unless expressly provided under the Order Form, the applicable fees for the renewal term will be at Mine’s than current applicable price list.
Customer may terminate Customer’s account by contacting Mine via email at: firstname.lastname@example.org and sending Mine a written notice, as detailed in the applicable Order Form. Following the termination of Customer’s account, Customer may no longer be able to access the Services. No refund would be made in the event of termination.
9. Data Deletion
When Customer processes individuals’ requests via the Services, Mine will exercise such request in accordance with Customer’s instruction and delete all personal data, except that Mine will create and retain an identifier which Mine will store along with Customer’s company name and a time stamp, for the purpose of maintaining a record of the deletion (“Deletion Record”). Mine will share such generated identifier with Customer and with the individual who requested that the personal data related to him/her will be deleted. Any future post-deletion requests made by Customer regarding the deleted record, must include the Deletion Record. If a user of Customer’s Mine account requests the deletion of the personal data related to him/her, Mine will delete only such user’s details, while Customer’s account will remain active. Following termination of these Terms Mine will delete Customer’s Mine account and will only maintain records of pending deletion requests.
“Confidential Information” means non-public business, financial and technical information, including any data and business-related information provided by Customer to Mine, the Services and all elements and functionality details related thereof, these Terms and any third-party information that the disclosing party is obligated to keep confidential, that is either marked as “confidential” or “proprietary” or which, under the circumstances, should be understood to be confidential. Confidential Information does not include information which: (A) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (B) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (C) is developed independently by the receiving party without use of the disclosing party’s Confidential Information and by persons without access to such information. The receiving party will use measures at least as protective as those it uses for its own confidential information, but no less than reasonable measures, to keep in confidence and not to disclose to any third party any Confidential Information of the disclosing party, except to those of the receiving party’s personnel, including external advisors, consultants, insurers and investors, who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by terms of confidentiality at least as protective as those in these Terms. The receiving party will not use any Confidential Information, directly or indirectly, for any purpose other than as necessary to perform its obligations and exercise its rights under these Terms. Each party is responsible for any breach of the confidentiality of the other party by its personnel. If the receiving party becomes legally compelled to disclose any Confidential Information, it will provide the disclosing party with assistance, as well as prompt prior written notice to the extent legally permitted, at the disclosing party’s expense, in obtaining a protective order. The provisions of this section 9 will survive the expiration or termination of these Terms for a period of 2 years, except that all obligations and restrictions hereunder related to any Confidential Information that constitutes ‘Trade Secret’ under will survive termination for so long as such information qualifies as a trade secret under applicable law.
11. Intellectual Property
All rights, title, and interest in and to the Platform and Services are and will remain at all times owned by Mine. These Terms provide Customer the right to use the Services only and does not provide Customer any ownership rights. To the extent that Customer provide Mine Customer’s data as part of Customer’s use of the Services, Customer’s data will remain, as between Customer and Mine, Customer’s sole and exclusive property.
12. Privacy and Data Protection
Mine collects, stores and uses personal details of Customer’s authorized users and contact persons in accordance with Mine’s privacy notice located at: business.saymine.com/legal/portal-privacy-policy. To the extent that data delivered by Customer to Mine, or that Mine process on Customer’s behalf, includes data about individuals who are in the European Economic Area (EEA) or to residents of the state of California, then Mine’s Data Processing Addendum (the “DPA”), available at: business.saymine.com/legal/portal-dpa, serves as an integral part of these Terms. Customer undertake to provide all necessary notices, and where applicable secure all necessary consents or other lawful grounds for processing, to facilitate Mine’s use of any personal data provided by Customer to Mine, or that Mine processes on Customer’s behalf under these Terms.
If Customer provide any feedback, comments, or suggestions to Mine concerning the functionality or performance of the Services (“Feedback”), Customer hereby assign all rights, title, and interest in the Feedback to Mine. For the sake of clarity, Customer have no obligation to provide Feedback to Mine, and Customer provide the Feedback “as is” without warranty of any kind.
Mine may disclose the fact that Customer is a customer of Mine and may use Customer’s logo and trademarks on Mine’s website and in marketing materials. Customer’s trademarks and logos will remain, as between Customer and Mine, Customer’s sole and exclusive property. Customer may revoke such right, at any time, by contacting Mine at: email@example.com. In addition, subject to Customer’s prior written approval, Mine may issue a press release regarding Mine’s relationship with Customer.
- 15.1. Mine Warranties. Mine will: (A) perform the Services with care, skill, and diligence, in a professional and workmanlike manner and in accordance with applicable professional standards, and causes its employees, subcontractors, and agents to perform accordingly; (B) use industry standard measures and controls, to protect the Platform from viruses, worms, time bombs, Trojan Horses and other harmful or malicious codes, files, scripts, agents and programs; (C) operate the Services efficiently and available at all times in accordance with the Mine standard Service Level Agreement (SLA), available at: business.saymine.com/legal/portal-sla; (D) will not knowingly utilize codes, components and content which infringe third parties’ intellectual property rights. Mine does not warrant that the Services or Platform will operate in an uninterrupted or error-free manner. Due to the nature of the Services and the Platform, and the underlying automated functionalities, software-based features, and algorithm, Mine cannot and does not guarantee the Services’ ability to generate the expected results. If Mine receives a notice of any failure or malfunction, or if Mine identifies them by itself, Mine will use commercially reasonable efforts to regain the Service’s full availability as soon as possible. Such incidents will not be considered a breach of this Agreement. This disclaimer of warranty constitutes an essential part of this Agreement. If the Services are held to, or Mine believes are likely to be held to infringe a copyright, patent or trade secret, Mine will have the right at Mine’s sole discretion and expense to: (A) substitute or modify the Services, or any relevant portion thereof, so that it is non-infringing; or, (B) obtain a license to continue using the Service. Except for any warranty specifically granted herein, the Services is provided “as-is” and “as-available”. To the maximum extent permitted by law, Mine and its third-party service providers expressly disclaim any and all warranties, conditions, representations and guarantees with respect to the Services, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty of merchantability, accuracy, completeness, correctness, fitness for a particular purpose or non-infringement. No representation or other affirmation of fact, including, without limitation, statements regarding capacity or suitability for use or performance of Service, whether made by Mine’s personnel or otherwise, which is not contained in this Agreement, will not be deemed to be a warranty by Mine for any purpose, or give rise to any liability of Mine.
- 15.2. Customer Warranties. Customer represents and warrants that: (A) Customer has obtained all authorization, permissions, approvals, and consents required to engage Mine hereunder, and provide Mine with all data provided hereunder; (B) Customer will be responsible for Customer’s Users’ compliance with these Terms; (C) Customer will provide all necessary notices and, where applicable, secure all necessary consents or other lawful grounds, to facilitate Mine’s use of any data (including personal data) provided by Customer and Customer’s Users to Mine, for the purposes under this Agreement; (D) Customer is solely responsible for Customer’s compliance with applicable data protection and privacy laws, rules, and regulations, and explicitly holds Mine harmless in relation thereto; and, (E) Customer will use commercially reasonable measures to prevent unauthorized use or access to the Platform and Services, and will notify Mine of such unauthorized use or access without undue delay.
16. Limited Liability
To the maximum extent permitted by applicable law, neither party nor its employees, directors, shareholders, advisors, or anyone acting on such party’s behalf, will be liable for any indirect, incidental, consequential, special or punitive damages, or any loss of profit, or expenses of any kind, arising from, or in connection with these Terms, the Services, and the Platform, whether such liability is asserted on the basis of contract, tort or otherwise. Both parties will only be liable for direct damages resulting from gross negligence or willful misconduct by such party or anyone on such party’s behalf, and the other party’s sole remedy will not exceed the fees actually paid to Mine by Customer in the twelve months preceding the occurrence of the claimed damage.
Each party will indemnify, defend, and hold the other party harmless from and against third party actions or written demands (“Claim”) directly resulting from the indemnifying party’s breach of its warranties under these Terms. The indemnifying party will cover direct damages, costs, and expenses, including reasonable attorneys’ fees incurred by the indemnified party in responding to a Claim. The indemnity obligation under these Terms is subject to the following conditions: (A) the indemnified party notifies the indemnifying party in writing about a Claim, promptly after becoming aware of the Claim, and gives the indemnifying party the right to control and direct the investigation, preparation, defense, trial and settlement of the Claim; (B) the indemnified party does not make any admission of liability, agreement or settlement in relation to the Claim without the prior written consent of the indemnifying party and the indemnity is made actionable upon a final decision of a competent court or a regulatory authority indicating the indemnifying party’s violations of the applicable law as the cause of the Claim, or subject to the explicit written agreement of the parties; (C) the indemnified Party will fully cooperate with the indemnifying party in the defense and settlement of the Claim, including by providing access to the indemnifying party and its professional advisors access to the indemnified party’s documents and records within the indemnified party’s power of control, for the purpose of assessing, defending and settling the Claim. A party’s indemnity obligation will not apply if the Claim was caused by: (A) acts or omissions of the other party, or the other party’s employees, directors, affiliates, partners, agents, contractors, or other third parties acting jointly or on behalf of the other party (“Representatives”); (B) instructions provided by the other party’s Representatives; (C) a willful, deliberate or malicious conduct by a third party not affiliated or controlled by either party.
Governing Law and Jurisdiction
These Terms, the Services and any claim, cause of action or dispute (collectively: a “Dispute”) arising out of or related thereto, will be governed and interpreted as follows: (A) If Customer is domiciled within the United States, then Disputes, will be brought exclusively before the court of the competent jurisdiction located in the city of New York, New York, and the laws of the state of New York will govern these Terms; (B) If Customer is domiciled within the EEA, then Disputes will be brought exclusively before the court of the competent jurisdiction located in the city of London England, and the laws of the United Kingdom will govern these Terms; and, (C) if the provisions of sub-sections (A)-(B) above do not apply to Customer, then Disputes will be brought exclusively before the court of the competent jurisdiction located in the city of Tel Aviv, Israel, and the laws of the state of Israel will govern these Terms.
Prior to initiating any legal action, the Parties will attempt to resolve in good-faith any dispute related to this Agreement, first by direct communications between the individuals responsible for administering this Agreement on behalf of each party followed by negotiation between authorized executives to settle the dispute. Either party may provide the other party a written notice of any dispute not resolved in the normal course of business. Within five (5) business days after the delivery of the notice, the receiving party will submit a written response to the other party. The notice and the response will include a statement of each party’s position and a summary of supporting arguments of that position and the name and the title of the executive who will represent that party. Within five (5) business days after delivery of the disputing party’s notice, the executives of both parties will meet at a mutually acceptable time and place, including by phone or video conference, and thereafter as often as they reasonably deem necessary, to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this section are confidential and will be treated as a compromise and settlement negotiations for purposes of applicable rules of evidence.
Assignment of Rights
Each party may assign to a third party its rights and obligations under these Terms in the event of a merger with or acquisition of all or substantially all of a party’s assets by that third party, provided that the third party undertakes the assigning party’s entire rights and obligations under these Terms and provides a written notice to the other party following the assignment. Other assignments of rights and obligations under these Terms are null and void without a prior written consent of the other party.
There are no third-party beneficiaries under these Terms. These Terms constitute the entire and complete agreement between Customer and Mine and supersede any previous agreements or representations, either oral or written with respect to the subject matter of these Terms. No terms issued by Customer or appearing on any other document provided by Customer, including without limitation any invoice, order, purchase order or acknowledgment form will have any force or effect or otherwise be binding. If any provision of these Terms is held invalid or unenforceable, that provision must be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties and the remaining provisions will remain in full force and effect. No failure or delay by either of the parties in exercising any right under these Terms shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and exclusive of, any other remedies of a party at law or in equity.