Mindsafe Digital Ltd Terms
and Conditions
www.mind-safe.com is a site
operated by Mindsafe Digital Ltd. Mindsafe Digital Ltd are registered in England and Wales under
company number 11311366 and have
our registered office at Unit 50-51 Malvern Hills Science Park, Geraldine Road,
Malvern, Worcestershire WR14 3SZ.
This MindSafe Service
Level Agreement (the"Agreement") is entered into by and
between Mindsafe Digital Ltd,("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 the 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 MindSafestores
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.
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 on
info@mind-safe.com
Customer can suspend or delete
End User Accounts at any point in time through request
to MindSafe support on info@mind-safe.com
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 either pupils or staff of the Customer.
2.2 Compliance.
Customers 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 charges.
2.3 Customer Administration of
the Services.
The 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) The
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.
For all Data Processing, unless
specifically stated otherwise, in writing, the Customer is the Controller and
MindSafe is the Processor.
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.
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) 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 this Online
Agreement 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 annum per secondary or all through school and £1500 per
annum per primary or middle school, all other schools will be £2500 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 offender. 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, the 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 agreeing to these Terms & Conditions)
within their website and marketing materials.
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. 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. Unless otherwise agreed, in writing from
MindSafe, the Term is for an initial twelve months.
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 keep renewing 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.
Customer may provide notice
to MindSafe under this Agreement by sending an email
to MindSafe’s info@mind-safe.com
or in writing by recorded delivery to the registered company address. Unit
50-52 Malvern Hills Science Park, Geraldine Road, Malvern, WR14 3SZ.
Any notice shall be deemed to have been received:
(a) if sent
by pre-paid first-class recorded post or other next working day delivery
service, at 9.00 am on the Business Day after posting, provided that proof of
delivery can be provided by The Customer .
(b) {; or}
If sent by email, at the time of transmission, or, if this time falls outside
of Business Hours, when business hours resume, provided that proof of receipt
of the email can be provided by the Customer.
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 fees every 12 months, without
prior notice, provided that the increase does not exceed the rate of inflation.
MindSafe may revise its
rates in excess of the rate of inflation 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.
Customer may provide notice
to MindSafe under this Agreement by sending an email
to MindSafe’s info@mind-safe.com
or in writing by recorded delivery to the registered company address. Unit
50-52 Malvern Hills Science Park, Geraldine Road, Malvern, WR14 3SZ.
Any notice shall be deemed to have been received:
(a) if sent
by pre-paid first-class recorded post or other next working day delivery
service, at 9.00 am on the Business Day after posting, provided that proof of
delivery can be provided by The Customer .
(b) {; or}
If sent by email, at the time of transmission, or, if this time falls outside
of Business Hours, when business hours resume, provided that proof of receipt
of the email can be provided by the Customer.
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 the Customer
and indemnify them against Indemnified Liabilities in any Third-Party Legal
Proceeding to the extent arising out of an allegation that the 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 in so far as MindSafe deem
reasonably possible; 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, with no further impact on this
agreement.
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.
a) MindSafe do not guarantee
that our site will be secure or free from bugs or viruses.
b) The
Customer is responsible for configuring your own information technology,
computer programmes and platform to access our site. You should use your own
virus protection software.
15.1 Notices.
MindSafe may provide any
notice to Customer under this Agreement by:
a) sending
an email to the Main Contact email address recorded by the Customer in their
Main Contact accounts in MindSafe or by
b) posting
a notice in the Admin Console or on www.mind-safe.com.
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:
c) the
assignee agrees in writing or by accepting the Terms of this agreement by
logging into MindSafe to be bound by the terms of this Agreement;
and
d) the
assigning party remains liable for obligations incurred under the Agreement
prior to the assignment.
e) Any
other attempt to transfer or assign is void.
15.3 Change of Control
of MindSafe.
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 notice
to the other party within thirty days after the change of control either
through a change of company details on the website or via electronic
comminution to the contact details supplied by the Customer.
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 from a Customer must
be in writing and expressly state that it is amending this Agreement and must
be accepted, in writing, by MindSafe for it to be valid.
Any amendment from MindSafe must
be in writing and expressly state that it is amending this Agreement for it to
be valid.
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 provided by MindSafe, the
MindSafe website, 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.
"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 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.
"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.
“Business day” means Monday to
Friday between the hours of 9am and 5pm except on Bank Holidays.
"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.
"Customer Data" means
data, including email, provided, generated, transmitted or displayed
via the Services by Customer or End Users.
“DPA” means Data Processing
Agreement
"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 Centre" means
the MindSafe Help Centre 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. The term that begins on the Effective Date and continues
for one year and will automatically renew for 12 months at a time until
terminated under termination provisions.
"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 changes to the Terms and Conditions. The “Main
Contact Email Address” is info@mind-safe.com
"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
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 Level Agreement, 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.