Mindsafe Digital Ltd Online
Agreement
This MindSafe Service Level Agreement (the"Agreement") is entered into by and between MindSafe Digital Ltd, Unit 50-51 Malvern Science Park, Geraldine Road, Malvern, WR14 3SZ ("MindSafe"),
and the entity agreeing to these terms ("Customer").
This Agreement is effective as of the date Customer accepts the
Agreement (the "Effective Date"). If you are accepting on behalf of
Customer, you represent and warrant that:
a) you have
full legal authority to bind your employer, or the applicable entity, to these
terms and conditions;
b) you have
read and understand this Agreement; and
c) you agree,
on behalf of the party that you represent, to this
Agreement. If you do not have the legal authority to bind Customer, please do
not accept this Agreement.
This Agreement governs Customer's access to and use of the
Services as ordered in their signing up to MindSafe
and acceptance of the Mindsafe Digital Ltd Online
Agreement and Terms of Service and will be effective as of the Effective Date.
1. Services.
1.1 Facilities and Data Transfer.
All facilities used to store and process Customer Data will adhere
to reasonable security standards no less protective than the security standards
at facilities where MindSafe stores and processes its
own information of a similar type.
MindSafe
has implemented at least industry standard systems and procedures to ensure the
security and confidentiality of Customer Data, protect against anticipated
threats or hazards to the security or integrity of Customer Data, and protect
against unauthorized access to or use of Customer Data.
As part of providing the Services, MindSafe
may transfer, store and process Customer Data in the United Kingdom or any
other country in which MindSafe or its agents
maintain facilities. By using the Services, Customer consents to this transfer,
processing and storage of Customer Data.
1.2 Modifications.
a. To the Services. MindSafe may make
commercially reasonable changes to the Services from time to time. If MindSafe makes a material change to the Core Services, MindSafe will inform Customer, provided
that Customer has subscribed with MindSafe to
be informed about such material change.
b. To URL Terms. MindSafe may make
commercially reasonable changes to the URL Terms from time to time. If MindSafe makes a material change to the URL Terms, MindSafe will inform Customer by either sending an email to
the Notification Email Address or alerting Customer via the Admin Console.
Material changes to the URL Terms will become effective 30 days after the
notice is given, except if the changes apply to new functionality in which case
the changes will be effective immediately. If the change has a material adverse
impact on Customer, and the change is not a result of MindSafe
complying with a court order or applicable law, Customer may notify MindSafe within thirty days after being informed of the
change that Customer does not agree with the change. If Customer notifies MindSafe as required, then Customer will remain governed by
the terms in effect immediately prior to the change until the earlier of:
a) the end of
the then-current Term or
b) (ii) 12
months after MindSafe informs Customer of the change, unless the modification to the URL Terms is in
response to a court order or to comply with applicable law. If the Services are
renewed, they will be renewed under MindSafe's then
current URL Terms.
1.3 No Ads.
MindSafe
will not process Customer Data for Advertising purposes or serve Advertising in
the Services.
1.4 End User Accounts.
Customer may request End User Accounts by:
a) requesting
them online via the Admin Console; or
b) after the
Services Commencement Date, contacting MindSafe
support personnel.
Customer can suspend or delete End User Accounts at any point in
time through request to MindSafe support.
1.5 New Features or Services.
MindSafe
may make new applications, features or functionality
for the Services available from time to time, the use of which may be
contingent upon Customer’s agreement to additional terms.
1.6 Privacy Notice.
The Terms and Conditions of Service governs how MindSafe collects and uses information from Customer or End
Users. Copies of the MindSafe Privacy notice and DPI
are available on request.
1.7 Service Specific Terms.
The Service Specific Terms are incorporated by this reference into
the Agreement.
2. Customer Obligations.
2.1 Permitted Uses.
The Services are permitted for use only by the “Customer” and
their KS2, KS3 and KS4 and staff end users either pupils or staff of the
“Customer”.
2.2 Compliance.
Customer will use the Services in accordance with the Terms of
Service. MindSafe may make new applications, features or functionality for the Services available from
time to time, the use of which may be contingent upon Customer's agreement to
additional terms. In addition, MindSafe may make
other Additional Features (beyond the Services) available to Customer and its
End Users in accordance with the Additional Features Terms and the applicable feature-specific MindSafe terms of
service.
2.3 Customer Administration of the Services.
Subject to availability of this feature Customer may specify one
or more Administrators through the Admin Console who will have the rights to
access Admin Account(s) and to administer the End User Accounts. Customer is
responsible for:
a) maintaining
the confidentiality of the password and Admin Account(s);
b) designating
those individuals who are authorized to access the Admin Account(s); and
c) ensuring
that all activities that occur in connection with the Admin Account(s) comply
with the Agreement.
d) ensure that
1 or 2 Admin Accounts are designated as Main Contacts to whom safeguarding
alerts or update information, as generated by any relevant features in MindSafe, will be sent;
e) maintaining
up to date Main Contact details.
f)
Customer agrees that MindSafe's
responsibilities do not extend to the internal management or administration of
the Services for Customer and that MindSafe is merely
a data-processor.
2.4 Administrator Access; End User Consent.
a) Administrator
Access. Administrators will have the ability to access all Customer’s End User
Accounts, including the ability to access, monitor, use, modify, withhold, or
disclose any data available to End Users associated with their End User
Accounts.
b) End User
Consent. Customer will obtain and maintain all required consents from End Users
to allow:
(i) Administrators
to have the access described in this Agreement; and
(ii) MindSafe’s provision of the Services to Administrators and
End Users.
2.5 Parental Consent.
If Customer allows End Users under the age of 13 to use the
Services, the Customer will obtain parental/guardian consent or agrees consent
as a responsible adult, before allowing any End Users under the age of 13 to
use these services.
2.6 Unauthorized Use.
Customer will use commercially reasonable efforts to prevent
unauthorized use of the Services and to terminate any unauthorized use.
Customer will promptly notify MindSafe of any
unauthorized use of, or access to, the Services of which it becomes aware.
2.7 Restrictions on Use.
Unless MindSafe specifically agrees in
writing, Customer will not, and will use commercially reasonable efforts to
make sure a third party does not:
a) sell,
resell, lease, or the functional equivalent, the Services to a third party
(unless expressly authorized in this Agreement);
b) attempt to
reverse engineer the Services or any component;
c) attempt to
create a substitute or similar service through use of, or access to, the
Services; (d) use the Services for High Risk Activities;
d) use or
access the Services in a manner intended to avoid incurring Fees (where Fees
are applicable); or
e) use the
Services to store or transfer any Customer Data that is controlled.
3. Data Processing
3.1
Data Protection Law Provision.
This makes legally binding provisions for
compliance with the Data Protection Laws as set forth in this agreement. As per
the requirements of the Data Protection Act 2018 and
the UK GDPR, all processing of personal data by a processor on behalf of a controller,
shall be governed by a contract. The terms, obligations and rights set forth in
this agreement relate directly to the data processing activities and conditions
laid out in this contract for the provision of services as detailed herein.
3.2
Obligations and Rights of the Processor
The Processor shall comply with the relevant Data
Protection Laws and must: -
a)
only
act on the written instructions of the Controller for
the following purposes (unless required by law to act without such
instructions)
(i) Processing in
accordance with the Principal Contract to deliver contracted services.
(ii)
Processing to comply with other documented reasonable instructions
provided by the Client (e.g., via email) where such instructions are consistent
with the terms of this Agreement.
b)
ensure
that people processing the data are subject to a duty of confidence
c)
ensure
that any natural person acting under their authority who has access to personal
data, does not process that data except on instructions from the
Controller
d)
use
its best endeavours to safeguard and protect all personal data from
unauthorised or unlawful processing, including (but not limited
to) accidental loss, destruction or damage and will ensure the security of
processing through the demonstration and implementation of appropriate
technical and organisational measures as specified in Schedule 1 of this
agreement
e)
ensure
that all processing meets the requirements of the UK GDPR and related Data
Protection Laws and is in accordance with the Data Protection Principles
f)
ensure
that where a Sub-Processor is used, they: -
(i)
they
implement a written contract containing the same data protection obligations as
set out in this agreement, providing sufficient
guarantees to implement appropriate technical and organisational measures in
such a manner that the processing will meet the requirements of the Data
Protection Laws
(ii)
understand
that where any Sub-Processor is used on their behalf, that any failure on the
part of the sub-processor to comply with the Data Protection Laws or the
relevant data processing agreement, the initial processor remains fully liable
to the controller for the performance of the Sub-Processor’s obligations
g)
assist
the Controller in providing subject access and allowing data subjects to
exercise their rights under the Data Protection Laws.
If the Processor receives a request from a Data Subject for the exercise of any
of the Data Subject's Rights, and the request is related to the Controller’s
Personal Data, the Processor will forward the request to the Controller and
refrain from responding to the data subject directly’.
h)
assist
the Controller in meeting its data protection obligations in relation to:
-
(i)
the
security of processing
(ii)
data
protection impact assessments
(iii)
the
investigation and notification of personal data breaches
i)
delete
or return all personal data to the Controller as requested at the end of the
contract except to the extent that a lawful reason allows us to retain some
or all the Personal Data. The terms of this DPA will continue to apply to such
archived Personal Data
j)
make
available to the Controller all information necessary to demonstrate compliance
with the obligations laid down in the relevant Data Protection Laws and allow
for, and contribute to audits, including inspections, conducted by the
Controller or another auditor mandated by the Controller
k)
tell
the Controller immediately if they have done something (or are asked to do
something) infringing the UK GDPR or other relevant Data Protection Law of the
UK,
l)
co-operate
with supervisory authorities in accordance with UK GDPR Article 31
m)
notify
the Controller of any personal data breaches in accordance with UK GDPR Article
33. The processor shall make reasonable efforts to identify the cause
of any data breach and take steps as deemed necessary and reasonable in order to remedy the cause of such a breach to the extent
such is within our reasonable control.
n)
where
applicable, employ a Data Protection Officer if required
o)
The Processor is responsible for ensuring that each of
its employees, agents, sub-contractors or vendors are
made aware of its obligations regarding the security and protection of the
personal data and the terms set out in this agreement.
p)
The Processor shall maintain induction and training
programs that adequately reflect the Data Protection Law requirements and
regulations, and ensure that all employees are afforded the time, resources and budget to undertake such training on a regular
basis.
q)
Any transfers of personal data to a third country or
an international organisation shall only be
carried out on documented instructions from the controller,
and with appropriate safeguards to ensure an adequate level of data protection
in accordance with the Data Protection Act (2018) and the UK GDPR, unless required to do so domestic law.
Where such a legal requirement exists, the Processor shall inform the
Controller of that legal requirement before processing.
r)
When assessing the appropriate level of security and
the subsequent technical and operational measures, the processor shall consider
the risks presented by any processing activities, in particular from accidental or unlawful destruction,
loss, alteration, unauthorised disclosure of, or access to personal
data transmitted, stored or otherwise processed.
Nothing within this agreement relieves the processor
of their own direct responsibilities, obligations and liabilities under the UK
GDPR or other Data Protection Laws.
3.3
Obligations and Rights of the Controller
a)
The Controller is responsible for verifying the
validity and suitability of the Processor before entering into
a business relationship.
b)
The Controller shall carry out adequate and
appropriate onboarding and due diligence checks for all Processors, with a full
assessment of the mandatory Data Protection Law requirements.
3.4
Penalties & Termination
By accepting this agreement, the Processor confirms
that they understand the legal and enforcement actions that they may be subject
to should they fail to uphold the agreement terms or breach the Data Protection
Laws. If the processor fails to meet their obligations, they may be subject to:
-
a)
investigative
and corrective powers of the Commissioner under Article 58 of the UK GDPR
b)
an
administrative fine under Article 83 of the UK GDPR
c)
a
penalty under part 6 of the Data Protection Act (2018)
d)
pay
compensation under Article 82 of the UK GDPR
4. Payment.
Services are purchased for a Fee, the terms in this Section 4
apply to those Services.
4.1 Billing and Payment.
Customer will pay all Fees for the Services. All Fees are due
thirty days from the invoice date. All payments due are in GBP unless otherwise
indicated in a Specification of Order Form. Payments made via bank transfer
must include the bank information provided by MindSafe.
4.2 Delinquent Payments. Delinquent payments may bear interest at
the rate of one-and-one-half percent per month (or the highest rate permitted
by law, if less) from the payment due date until paid in full. Customer will be
responsible for all reasonable expenses (including legal fees) incurred by MindSafe in collecting such delinquent amounts, except
where such delinquent amounts are due to MindSafe's
billing inaccuracies.
4.3 Purchase Orders.
a) Required.
If Customer wants a Purchase Order number on its invoice, Customer will inform MindSafe and issue a Purchase Order to MindSafe.
b) If Customer
requires a Purchase Order, number and fails to provide the Purchase Order number
to MindSafe, then MindSafe
will not issue a invoice with a Purchase Order number
until one has been received by MindSafe but will
issue an invoice.
c) Any terms
and conditions on a Purchase Order do not apply to this Agreement and are null
and void.
d) Not
Required. It will be assumed that a Customer does not
require a Purchase Order number unless a Purchase order is supplied to MindSafe within 7 days of registering for the services of Mindsafe. If Customer thus waives the Purchase Order
requirement, then:
i.
MindSafe will
invoice Customer without a Purchase Order; and
ii.
Customer agrees to pay invoices without a Purchase
Order.
4.4 By accepting the terms and conditions the Customer also accepts
the standard order agreements herein; including
a) details of
applicable service;
b) Fees; and
c) current
Services Term for, any End User Accounts.
d) Unless
otherwise stated, in writing, from Mindsafe Digital
Ltd, standard rates will be £2500 per secondary school and £1500 per primary
school per annum with VAT at the prevailing rate.
4.5 Taxes.
Customer is responsible for any Taxes, and Customer will pay MindSafe for the Services without any reduction for Taxes.
If MindSafe is obligated to collect or remit Taxes
imposed on Customer, the Taxes will be invoiced to Customer, unless Customer
provides MindSafe with a timely and valid tax
exemption certificate authorized by the appropriate taxing authority. In some
jurisdictions the sales tax or VAT is due on the total purchase price at the
time of sale and must be invoiced and collected at the time of the sale.
4.6 Invoice Disputes.
a) Any invoice
disputes must be submitted prior to the invoice due date.
b) If the
parties determine that certain billing inaccuracies are attributable to MindSafe, MindSafe will not issue
a corrected invoice, but will instead issue a credit memo specifying the
incorrect amount in the affected invoice.
c) If the
disputed invoice has not yet been paid, MindSafe will
apply the credit memo amount to the disputed invoice and Customer will be
responsible for paying the resulting net balance due on that invoice.
4.7 Invoicing Rates.
Services that are purchased for a Fee from MindSafe,
the terms in this Section apply to those Services. On or after the Billing
Start Date, MindSafe will invoice Customer the
following Fees for each applicable Service: in advance for the Monthly Charge,
Annual Charge or Initial Term Charge (as applicable), these
are all standard as detailed in Clause 4.4 unless otherwise stated in writing
by Mindsafe Digital Ltd.
5. Technical Support Services.
5.1 By Customer.
Customer will, at its own expense, respond to questions and
complaints from End Users or third parties relating to Customer's or End Users'
use of the Services. Customer will use commercially reasonable efforts to
resolve support issues before escalating them to MindSafe.
5.2 By MindSafe.
If Customer cannot resolve a support issue consistent with the
above, then Customer may escalate the issue to MindSafe
who will use commercially reasonable efforts to resolve the issues.
6. Suspension.
6.1 Of End User Accounts by MindSafe.
If MindSafe becomes aware of an End
User's violation of the Agreement, then MindSafe may
specifically request that Customer Suspend the applicable End User Account. If
Customer fails to comply with MindSafe's request to
Suspend an End User Account, then MindSafe may do so.
The duration of any Suspension by MindSafe will be
until the applicable End User has cured the breach, which caused the
Suspension.
6.2 Emergency Security Issues.
Notwithstanding the foregoing, if there is an Emergency Security
Issue, then MindSafe may automatically Suspend the
offending use. Suspension will be to the minimum extent and of the minimum
duration required to prevent or terminate the Emergency Security Issue. If MindSafe Suspends an End User Account for any reason
without prior notice to Customer, at Customer's request, MindSafe
will provide Customer the reason for the Suspension as soon as is reasonably
possible.
6.3 Suspension for Non-Payment (where applicable).
a) Automatic
Suspension. Customer will have thirty days to pay MindSafe
delinquent Fees. If Customer does not pay MindSafe
delinquent Fees within thirty days, MindSafe may
automatically suspend Customer’s use of the Services. The duration of this
suspension will be until Customer pays MindSafe all
outstanding Fees or until an alternative resolution is a greed, in writing by MindSafe.
b) During
Suspension. If Customer has an annual commitment to MindSafe
for the Services, MindSafe will continue to charge
Customer monthly Fees during Customer’s suspension for non-payment and Customer
must pay all outstanding Fees in order to resume its
use of the Services.
c) Termination
After Suspension. If Customer remains suspended for non-payment for more than
sixty days, MindSafe may terminate Customer for cause
pursuant to Section 12.1.
6.4 Suspension to Comply with Laws.
MindSafe
may at its sole discretion Suspend the provision of any Services at any time if
required to comply with any applicable law.
7. Confidential Information.
7.1 Obligations. Subject to Section 7.2 (Disclosure of
Confidential Information), the recipient will not disclose the discloser’s
Confidential Information, except to Affiliates, employees, professional
advisors, or agents (“Delegates”) who need to know it and who have a legal
obligation to keep it confidential. The recipient will use the Confidential
Information only to exercise rights and fulfil its obligations under this
Agreement, while using reasonable care to protect it. The recipient will ensure
that its Delegates are also subject to the same non-disclosure and use
obligations.
7.2 Disclosure of Confidential Information.
(a) General. Subject to Section
7.2(b), the recipient may disclose the discloser’s Confidential Information
(i) in accordance with a Legal Process or
(ii)
with the discloser’s written consent.
(b) Notification. Before the
recipient discloses the discloser’s Confidential Information in accordance with
a Legal Process, the recipient will use commercially reasonable efforts to
promptly notify the Customer. MindSafe will give
notice via the Main Contact email address as held on the system.
The recipient does not need to
provide notice before disclosure if the recipient is informed that
(i)
it is legally prohibited from giving notice or
(ii)
(ii) the Legal Process relates to exceptional
circumstances involving danger of death or serious physical injury to any
person. (c) Opposition. Recipient will comply with the other party’s reasonable
requests opposing disclosure of its Confidential Information.
8. Intellectual Property Right And Brand
Features.
8.1 Intellectual Property Rights.
Except as expressly set forth herein, this Agreement does not
grant either party any rights, implied or otherwise, to the other's content or
any of the other's intellectual property. As between the parties, Customer owns
all Intellectual Property Rights in Customer Data, and MindSafe
owns all Intellectual Property Rights in the Services.
8.2 Display of Brand Features.
a) MindSafe may display those Customer Brand Features
authorized by Customer (such authorization is provided by Customer uploading
its Brand Features into the Services) within designated areas of the Services
Pages. Customer may specify the nature of this use using the Admin Console.
b) MindSafe may also display Customer Brand Features,
including logos on the Services Pages to indicate that MindSafe
provides the Services.
c) Neither
party may display or use the other party's Brand Features beyond what is
allowed in this Agreement without the other party's prior recorded consent.
8.3 Brand Features Limitation.
Any use of a party's Brand Features will inure to the benefit of
the party holding Intellectual Property Rights in those Brand Features. A party
may revoke the other party's right to use its Brand Features pursuant to this
Agreement with written notice to the other and a reasonable period to stop the
use.
9. Publicity.
In connection with Customer’s use of the Services,
a) Customer
may state publicly that it is a MindSafe customer and
display MindSafe Brand Features consistent with the
Trademark Guidelines and
b) MindSafe may
(i) orally
state that Customer is a MindSafe customer and
(ii) include
Customer’s name or Customer Brand Features in a list of MindSafe
customers in MindSafe’s online or offline promotional
materials.
Neither party needs approval if it is using the other party’s name
or Brand Features in a manner that is substantially similar
to a previously approved manner.
10. Representations, Warranties and Disclaimers.
10.1 Representations and Warranties.
Each party represents that it has full power and authority to
enter into the Agreement. Each party warrants that it will comply with all laws
and regulations applicable to its provision, or use, of the Services, as
applicable. MindSafe warrants that it will provide
the Services in accordance with this SLA. Customer acknowledges and agrees that
it will use the Services and Additional Features responsibly, including, but
not limited to, providing consent or obtaining
parental consent concerning collection and use of students' personal
information as described in section 2.5 above.
10.2 Disclaimers. To the fullest extent permitted by applicable
law, except as expressly provided for herein, neither party. Makes any other
warranty of any kind, whether express, implied, statutory
or otherwise, including without limitation fitness for a particular use and
noninfringement.
a) MindSafe makes no representations about any content or
information made accessible by or through the services.
b) Customer
acknowledges that the services are not monitored and that the services are not
capable for providing any clinical care.
c) In no event
shall MindSafe have or accept any liability for child
welfare, wellbeing or clinical care.
11. Term; Fees.
11.1 Agreement Term.
This Agreement will remain in effect for the Term.
11.2 Term and Purchases During Term.
MindSafe
will provide the Services to Customer during the Term. Unless the parties agree
otherwise in writing, End User Accounts added during any Term will have a
prorated term ending on the last day of that Term.
11.3 Auto Renewal.
At the end of each Term, the Services (and all End User Accounts
previously purchased for a Fee, except those of year 6/12 users who have no
longer pupils of the “Customer”) will automatically renew for an additional
Term of twelve months. If either party does not want the Services to renew,
then it must notify the other party in writing at least 60 days prior to the
end of the then current Term. This notice of non-renewal will be effective upon
the conclusion of the then current Term. “Customers” on a specific time limited
project are exempt from this clause as long as their
participation is limited to participation in the project.
11.4 Fees.
During the Initial Term, MindSafe charges
Customers Fees for the Services as detailed in the Clause 4.4. Upon the
parties' mutual written agreement. MindSafe may
charge Customer Fees for a premium version of the Services or for optional
functionality or enhancements that may be added to the Services by MindSafe .
11.5 Services Use.
Customer has no obligation to use the Services and may cease using
the Services at any time for any reason (or no reason). This does not affect
the Term, Fees or Auto Renewal.
11.6 Revising Rates.
For Services which Customer has purchased for a Fee, MindSafe may revise its rates for the following Term by
providing Customer written notice (which may be by email) at least sixty days
prior to the start of the following Term.
12. Termination.
12.1 Termination for Cause Either party may suspend performance or
terminate this Agreement if:
a) the other
party is in material breach of the Agreement and fails to cure that breach
within thirty days after receipt of written notice;
b) the other
party ceases its business operations or becomes subject to insolvency
proceedings and the proceedings are not dismissed within ninety days; or
c) the other
party is in material breach of this Agreement more than two times during a Term
notwithstanding any cure of such breaches.
12.2 Other Termination.
Customer may terminate this Agreement for any reason (or no
reason) with sixty days prior written notice to MindSafe
before the Auto Renewal, provided, however, that Customer will remain obligated
to pay any Fees for Services which Customer has purchased applicable to the
remainder of the then-current Term for those Services.
12.3 Effects of Termination.
If this Agreement terminates, then:
a) the rights
granted by one party to the other will cease immediately (except as set forth
in this Section and Section 15.12 (Survival));
b) Customer
will not have access to, or the ability to export, Customer Data after the
effective date of termination or expiry of the Agreement;
c) Customer
will be responsible for determining whether (and the extent to which) to use
the functionality of the Services to delete Customer Data prior to such date;
d) MindSafe will delete Customer Data in accordance with the
terms of the Agreement;
e) all Fees
owed by Customer to MindSafe are immediately due; and
f)
each party will promptly use reasonable efforts to
return or destroy all other Confidential Information of the other party.
13. Defence and Indemnity.
13.1 By MindSafe.
MindSafe
will defend Customer and indemnify them against Indemnified Liabilities in any
Third-Party Legal Proceeding to the extent arising out of an allegation that
Customer’s use in accordance with this Agreement of MindSafe's
technology used to provide the Services or any MindSafe
Brand Feature infringe or misappropriate any patent, copyright, trade secret or
trademark of such third party.
Notwithstanding the foregoing, in no event shall MindSafe have any obligations or liability under this
Section arising from:
a) use of the
Services or MindSafe Brand Features in a modified
form or in combination with materials not furnished by MindSafe,
and
b) (ii) any
content, information or data provided by Customer, End Users or other third
parties.
13.2 Possible Infringement.
Repair, Replace, or Modify. If MindSafe
reasonably believes the Services infringe a third party's Intellectual Property
Rights, then MindSafe will:
obtain the right in so far possible for Customer, at MindSafe's expense, to continue using the Services;
a) provide a
non-infringing functionally equivalent replacement; or
b) modify the
Services so that they no longer infringe.
c) Suspension
or Termination. If MindSafe does not believe the
foregoing options are commercially reasonable, then MindSafe
may suspend or terminate Customer's use of the impacted Services. If MindSafe terminates the impacted Services, then MindSafe will provide a pro-rata refund of the unearned
Fees (if applicable) actually paid by Customer applicable to the period
following termination of such Services.
13.3 General.
Customer will promptly notify MindSafe
of the claim and cooperate with MindSafe in defending
the claim. MindSafe has full control and authority
over the defence, except that:
a) (a) any
settlement requiring Customer to admit liability or to pay any money will
require Customer's prior written consent, such consent not to be unreasonably
withheld or delayed; and
b) (b)
Customer may join in the defence with its own counsel at its own expense.
THE INDEMNITY ABOVE IS CUSTOMER'S ONLY REMEDY UNDER THIS AGREEMENT
FOR VIOLATION BY MINDSAFE OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
14. Limitation of Liability.
14.1 Limitation on Indirect Liability.
Neither party will be liable under this agreement for the lost
revenues or indirect, special, incidental, consequential, exemplary, or
punitive damages, even if the party knew or should have known that such damages
were possible and even if direct dames do not satisfy a remedy.
14.2 Limitation on Amount of Liability.
Neither party may be held liable under this agreement for more
than the greater of:
a) one
thousand pounds
b) the amount
paid by the customer to MindSafe under this agreement
during the twelve months prior to the event giving rise to the liability.
14.3 Exceptions to Limitations.
These limitations of liability apply to the fullest extent
permitted by applicable law, but do not apply to breaches of confidentiality
obligations, violations of a party's Intellectual Property Rights by the other
party, or indemnification obligations.
15. Miscellaneous.
15.1 Notices.
MindSafe
may provide any notice to Customer under this Agreement by:
a) sending an
email to the Main Contact email address or by
b) posting a
notice in the Admin Console.
Customer may provide notice to MindSafe
under this Agreement by
sending an email to MindSafe’s
info@mind-safe.com.
Notice will be treated as received when:
a) the email
is sent, whether or not the other party has received
the email or
b) notice is
posted in the Admin Console.
15.2 Assignment.
Neither party may assign or transfer any part of this Agreement
without the written consent of the other party, except to an Affiliate, but
only if:
a) the
assignee agrees in writing or by accepting the Terms of this agreement by
logging into MindSafe be bound by the terms of this
Agreement; and
b) the
assigning party remains liable for obligations incurred under the Agreement
prior to the assignment.
c) Any other
attempt to transfer or assign is void.
15.3 Change of Control of Mindsafe
Digital Ltd.
Upon a change of control (for example, through a stock purchase or
sale, merger, or other form of corporate transaction) the party experiencing
the change of control will provide written notice to the other party within
thirty days after the change of control; and
15.4 Force Majeure.
Neither party will be liable for inadequate performance to the
extent caused by a condition (for example, natural disaster, act of war or
terrorism, riot, labour condition, governmental action, and Internet
disturbance) that was beyond the party's reasonable control.
15.5 No Waiver.
Failure to enforce any provision of this Agreement will not
constitute a waiver.
15.6 Severability.
If any provision of this Agreement is found unenforceable, the
balance of the Agreement will remain in full force and effect.
15.7 No Agency.
The parties are independent contractors, and this Agreement does
not create an agency, partnership or joint venture.
15.10 Governing Law.
This Agreement is governed by the laws of England and Wales.
For any disputes arising out of or relating to this agreement, the
parties consent to resolution in accordance with these
laws.
15.11 Amendments.
Any amendment must be in writing and expressly state that it is
amending this Agreement.
15.12 Survival. The following Sections will survive expiration or
termination of this Agreement: Confidential Information, Data processing. Intellectual
Property Rights, Effects of Termination, Indemnification, Limitation of
Liability, Miscellaneous, and Definitions.
15.13 Entire Agreement.
This Agreement, and all documents referenced herein, is the
parties' entire agreement relating to its subject and supersedes any prior or
contemporaneous agreements on that subject. If Customer is presented with a
similar agreement on the same subject matter upon its log in to use the Services,
that Agreement supersedes and replaces this agreement. The terms located at a
URL and referenced in this Agreement are hereby incorporated by this reference.
15.14 Interpretation of Conflicting Terms.
If there is a conflict between the documents that make up this
Agreement, the documents will control in the following order: the terms located
at any URL, then this Agreement.
16. Definitions.
"Acceptable Use Policy" means the acceptable use policy
for the Services available from info@mind-safe.com or www.mind-safe.com or any
other such URL as may be provided by MindSafe.
"Additional Features," means MindSafe
products which are not part of the Services, but which may be accessed by End
Users using their End User Account login and password. o "Additional
Features Terms" means the terms at any such URL as MindSafe
may provide from time to time.
"Admin Account(s)" means the administrative account(s)
provided to Customer by MindSafe for the purpose of
administering the Services. The use of the Admin Account(s) requires a
password, which MindSafe will provide to Customer.
"Admin Console" means the online tool provided by MindSafe to Customer for use in reporting and certain other
administration functions and the Help Centre found within each MindSafe account.
"Administrators" mean the Customer-designated technical
personnel who administer the Services to End Users on Customer's behalf.
"Affiliate" means any entity that directly or indirectly
controls, is controlled by, or is under common control with a party.
"Agreement" means, as applicable either this SLA, or the
combination of an Specification of Order Form and this
SLA.
"Annual Charge" means the annual charge for the Services
set forth in the Specification of Order Form (if applicable).
"Billing Start Date" means the date upon which Customer
will begin paying MindSafe for the Services (if
applicable).
"Brand Features" means the trade names, trademarks,
service marks, logos, domain names, and other distinctive brand features of
each party, respectively, as secured by such party from time to time.
"Confidential Information" means information disclosed
by a party to the other party under this Agreement that is marked as
confidential or would normally be considered confidential under the
circumstances. It does not include information that is independently developed
by the recipient, is rightfully given to the recipient by a third party without
confidentiality obligations, or becomes public through
no fault of the recipient. Subject to the preceding sentence, Customer Data is
considered Customer's Confidential Information.
"Core Services" means the Core Services for MindSafe as described in the Services Summary.
"Customer Data" means data, including email, provided,
generated, transmitted or displayed via the Services
by Customer or End Users.
"Effective Date" means the date this Agreement is
countersigned.
"Emergency Security Issue" means either: (a) Customer's
use of the Services in violation of the Acceptable Use Policy, which could
disrupt: (i) the Services; (ii) other customers' use
of the Services; or (iii) the MindSafe network or
servers used to provide the Services; or (b) unauthorized third
party access to the Services.
"End Users" means the individuals Customer permits to
use the Services.
"End User Account" means a MindSafe-hosted
account established by Customer through the Services for an End User.
"Fees" means the amounts invoiced to Customer by MindSafe for the Services (if applicable) as described in
this Agreement.
"Help Center" means the MindSafe Help Center accessible
at www.mind-safe.com or other such URL as MindSafe
may provide.
"High Risk Activities" means uses such as the operation
of nuclear facilities, air traffic control, or life support systems, where the
use or failure of the Services could lead to death, personal injury, or
environmental damage.
"Indemnified Liabilities" means any (i)
settlement amounts approved by the indemnifying party; and (ii) damages and
costs finally awarded against the indemnified party and its Affiliates by a
court of competent jurisdiction.
"Intellectual Property Rights" means current and future
worldwide rights under patent law, copyright law, trade secret law, trademark
law, moral rights law, and other similar rights.
"Initial Term" means the term for the applicable
Services beginning on the Service Commencement Date and continuing for the
"Current Services Term" being 12 months from the customer signing up
to use MindSafe, unless stated as otherwise in
writing form Mindsafe Digital Ltd. The term that
begins on the Effective Date and continues for one year. "Initial Term
Charge" means the charge for the Services for the Initial Services Term
(excluding any applicable one time fees or free access),
The term that begins on the Effective Date and continues for one year.
"Legal Process" means a data disclosure request made
under law, governmental regulation, court order, subpoena, warrant,
governmental regulatory or agency request, or other valid legal authority,
legal procedure, or similar process.
"Main Contact Email Address" means the email address
designated by Customer to receive email notifications from MindSafe.
Customer may change this email address through the Admin Console.
"Other Functions" means the “Other Functions Within MindSafe” as described in the Services Summary.
"Purchase Order" means a Customer
issued purchase order.
"Services" means the MindSafe
Core Services provided by MindSafe and used by
Customer under this Agreement. The Services are described here or such other
URL as MindSafe may provide.
"Service Commencement Date" is the date upon which MindSafe makes the Services available to Customer.
"Service Specific Terms" means the terms specific to one
or more Services.
"Suspend" means the immediate disabling of access to the
Services, or components of the Services, as applicable, to prevent further use
of the Services.
"Taxes" means any duties, customs fees, or taxes (other
than MindSafe's own taxes), including indirect taxes
such as “goods and services tax” and “value-added tax," associated with
the sale of the Services, including any related penalties or interest.
"Term" means the term of the Agreement, which will begin
on the Effective Date and continue until the earlier of: (i)
the end of the last Term or (ii) the Agreement is terminated as set forth
herein.
"URL Terms" means the Acceptable Use Policy, the SLA,
the Service Specific Terms, the TSS Guidelines and any other such as provided
by MindSafe.
“Data Protection Laws” means
all applicable Data Protection Laws, including the United Kingdom General Data
Protection Regulation (UK GDPR) (EU 2016/679), DPA 2018, to the extent
applicable, the data protection or privacy laws of any other country
“Personal Data” means any
information relating to an identified or identifiable natural person (‘data
subject’); an identifiable natural person is one who can be identified, directly
or indirectly, in particular by reference to an
identifier such as a name, an identification number, location data, an online
identifier or to one or more factors specific to the physical, physiological,
genetic, mental, economic, cultural or social identity of that natural person
“GDPR” means the United
Kingdom General Data Protection Regulation (UK GDPR) (EU2016/679)
“Processing” means any
operation or set of operations which is performed on personal data or on sets
of personal data, whether or not by automated means,
such as collection, recording, organisation, structuring,
storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or
combination, restriction, erasure or destruction
“Supervisory authority”
means the Information Commissioners Office (ICO) an independent public
authority
“Data Controller” Controllers are the main decision-makers – they
exercise overall control over the purposes and means of the processing of
personal data.
“Data Processor” Processors act on behalf of, and only on the
instructions of, the relevant controller.
This document contains the confidential information of MindSafe Digital Ltd. Use or disclosure of this document
without MindSafe Digital Ltd’s
express written consent is prohibited.