Date of last revision: February 20, 2014
The acceptance of these terms and conditions of use (this Agreement or these terms) constitutes a legal agreement between you (Customer or you or your), and Mine International Limited of Belgravia House 34/44 Circular Road Douglas Isle of Man IM1 1AE (MIL or we or us) (each a Party) in respect of the Customised MAS (as defined below).
1. MIL is a company specialising in the provision of the Mine Application Software (MAS) described in more detail within the “Description of the MINE Application Software” section below.
2. MIL licenses the MAS to a network of authorised Value Added Resellers (VARs) who in turn market the MAS to customers within various business sectors and/or territories and/or to End Users directly.
3. You have collaborated with the VAR and MIL to develop and have now agreed to purchase a licence to use your Customised MAS from MIL, and you have entered into a Customer Agreement with the VAR.
4. MIL now wishes to grant you an exclusive licence to use your Customised MAS subject to and in accordance with these terms.
In these terms (including the section entitled “background”), the following expressions shall have the following meanings:
– Customer Agreement means the agreement between you and the VAR relating to the payment of fees for the design, development, customisation, use, licence, training and maintenance by MIL of your Customised MAS;
– Customer Content means all images, information, logos, hypertext links, marks, text, graphics, web pages and any other content (other than MIL’s Intellectual Property Rights or images, components or content that is owned by or licensed to MIL) which are either (a) provided by you to us and/or the VAR to be included in or on the Customised MAS; or (b) which are added by you to the MAS;
– Customised MAS means MAS containing a customised version of the MAS branded with your name and/or identity and/or logo, an RSS reader dashboard branded with your name and/or identity and/or logo, and a proprietary directory of digital content together with administration tools for communicating with End Users and analytic tools for measuring End User behaviour and usage;
– VAR means a Value Added Reseller appointed by MIL to promote and distribute the MAS and with whom you have entered into a Customer Agreement;
– VAR Agreement means the distribution agreement made between the VAR and MIL, pursuant to which the VAR was appointed as MIL’s reseller to promote, market and/or distribute the MAS to customers in various business, lifestyle or affinity sectors and/or territories;
– End User means an individual end user who accesses the Customised MAS
– EULA means MIL’s standard online end user licence agreement to use the MAS found at http://www.mineinternational.com/eula
– Going Live means the Customer MAS being made available for End Users;
– Intellectual Property Rights means (a) copyright, patents, database rights and rights in trade marks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
– Mine Application Software or MAS means the MIL application described within the Customer Agreement (or as amended, varied or updated by MIL from time to time), which when accessed by End Users, provides those End Users with various features, components and content that are owned by MIL and/or third parties;
– MAS Features means features within the MAS or directly related to the MAS that are available for the use of End Users. Such features may include but are not limited to web search tools, news ticker, RSS readers, directories, bookmarks, widgets, and reporting tools;
– MIL Guidelines means the guidelines issued by MIL to the VAR from time to time on the use of the MAS and the “Mine” logo;
– Non-payment Event means failure of the Customer to make payments as defined in the Customer Agreement and those payments remain outstanding for 14 days or more.
– Purpose means the sole purpose of you configuring, customising and maintaining your Customised MAS and promoting, distributing and making your Customised MAS available to potential End Users for use on personal computers, tablets, mobile devices and any other personal Internet connected devices; and
– Request Form means the template request form provided to the Customer by the VAR, through which you shall provide to the VAR and the VAR shall in turn provide to MIL, information sufficient for MIL to be able to create a Customised MAS for you.
Description of the Mine Application Software
1. The MAS is a SAAS (software as a service) software which is accessible by an End User through an internet browser.
2. The MAS provides a branded “start page” designed to allow End Users to aggregate, curate, configure and manage their favorite internet content.
3. The MAS primarily consists of a database of RSS feeds and associated websites that permit End Users to personalise the content of their “start page”.
4. The MAS allows an End User to navigate your website.
5. The MAS allows messages from you to be sent to an End User (including marketing messages from you to the End User) through a branded “start page”.
6. The MAS provides access to a company specific, secure administration tool to allow you to monitor End User activity and configure marketing messages.
Customised MAS development
To receive a Customised MAS, you will need to do the following:
1. enter into a Customer Agreement with the VAR;
2. pay to the VAR the fees pursuant to your Customer Agreement;
3. properly complete the Request Form and return it the VAR; and
4. accept these terms.
You acknowledge and agree that:
i) we shall not be obliged to begin creating a Customised MAS for you unless and until:
ii) the VAR has received a completed Request Form from you (together with any additional reasonable information or Customer Content requested by us or the VAR and necessary for us to create a Customised MAS for you); and
iii) the VAR has received the set-up fee from you pursuant to your Customer Agreement; and
iv) you will not be permitted to use a “live” on-line version of your Customised MAS unless and until you have accepted these terms.
The Customised MAS shall operate and you shall have access rights to your Customised MAS so that you may modify, customise or provide your own content for it, in accordance with these terms and the MIL Guidelines as provided to you from time to time.
You hereby grant to MIL a non-exclusive, royalty-free licence to use any Customer Content that you provide to MIL through the VAR for the purpose of designing, developing, producing and maintaining the Customised MAS in accordance with these terms.
For the avoidance of doubt, and notwithstanding any provision of these terms, any Intellectual Property Rights that are owned by or licensed to you relating to the Customer Content you provide to MIL through the Distributor under these terms shall remain vested in you.
1. In consideration of your agreement to abide by these terms and for the licence fees paid and/or payable by you to the VAR pursuant to your Customer Agreement, MIL hereby grants you a non-exclusive, non-sublicensable licence to use the Customised MAS created for you by MIL for the Term and for the Purpose.
2. All rights which are not expressly granted herein are reserved by MIL.
Your licence to use the Customised MAS is subject to the following restrictions:
1. only you and End Users are allowed to use the Customised MAS. You must ensure that the Customised MAS is only used by End Users in accordance with the EULA and for no other purposes and/or not for any purposes which may cause any losses or liability for MIL;
2. you must not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Customised MAS (in whole or in part);
3. you must not make alterations to, or modifications of, the whole or any part of the MAS nor permit the MAS or any part of it to be combined with, or become incorporated in, any other programs save as those permitted via the use of your company specific, secure administration tool or otherwise subject to the prior written consent of MIL;
4. you must not disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Customised MAS nor attempt to do any such things; and
5. you must comply promptly with any reasonable instructions given by MIL from time to time in connection with the use and operation of the Customised MAS.
6. You must not use or exploit the Customised MAS other than as expressly permitted in this Agreement.
All Intellectual Property Rights in the Customised MAS throughout the world belong to or are used under licence by MIL. You have no rights in or to, the Customised MAS other than the right to use it in accordance with these terms.
You must not adopt, use, or register or apply for registration of, whether as a corporate name, trade mark, service mark or other indication of origin, any MIL trade marks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction.
All goodwill in and to the MAS and/or the MIL brand which may be generated shall vest in MIL and you hereby assign all such goodwill which you may have in and to the MAS and/or the MIL brand to MIL.
You acknowledge and agree that MIL retains the exclusive right (dynamically or otherwise) to:
1. determine or change the choice and/or functionality of MAS Features available in the Customised MAS at any time and without notice to you; and
2. develop, amend, add, remove or change the settings, appearance, tools and/or functionality of the features of the Customised MAS that allow you to configure, customise and maintain it to meet your needs at any time and without notice to you.
1. MIL does not allow the MAS to be used for or to facilitate any illegal activities. You shall use your Customised MAS for lawful purposes only and in a manner consistent with any and all applicable laws and regulations in the country in which you use, operate, distribute and/or promote your Customised MAS.
You shall not use your Customised MAS to create publish, post, promote, disseminate or distribute any:
– inaccurate, misleading, defamatory, obscene, pornographic, indecent, abusive, offensive or unlawful material;
– material that is in breach of any Intellectual Property Right or other right of a third party;
– material or content which results in or attempts to initiate any fraud; or
– software that could or is designed to harm people’s computers, software or web microsites or affects the security or privacy of End Users;
(together, Prohibited Content.)
MIL shall have, at its sole discretion, the right to (dynamically or otherwise) remove Prohibited Content from your Customised MAS at any time and without notice to you and/or take any measures needed to prevent or remove Prohibited Content at any time and for any reason whatsoever.
You shall not take any action that imposes an unreasonable, or disproportionately large load on the infrastructure supporting your Customised MAS.
Non-endorsement of content:
Any hypertext links included or made available in the Customised MAS are provided for information purposes only. MIL does not recommend or endorse any linked sites. MIL is not responsible for any advertisements, products, services, content or material found on the linked sites. All hypertext links are provided as part of the Customised MAS entirely at your and the End Users’ risk and MIL does not accept any responsibility for the content or use of such web sites or for the information contained on such sites.
Availability of your Customised MAS
1. MIL aims to make your Customised MAS available for your use at all times, but we cannot, and do not, guarantee availability either generally or at any particular time. There will be times when your Customised MAS is unavailable to you and/or End Users. Such unavailability may be planned (for example, where MIL is carrying out planned maintenance or upgrades) or unplanned (for example, where there is a hardware or software failure).
2. MIL will try to keep unavailability to a minimum, but MIL does not accept any liability for any loss or damage you (or End Users) may suffer as a result of your Customised MAS being unavailable (in whole or in part).
Storage of information
1. MIL stores information and data you provide to MIL including (but not limited to) Customer Content and/or information provided by End Users to MIL through their use of the MAS on MIL’s servers. MIL’s servers are designed to be secure, but no server can guarantee 100% protection either in terms of unauthorised access or loss of or damage to information. MIL is not liable to you (or End Users) for any loss of access to, or deletion or alteration of, any information posted on your Customised MAS.
Each Party shall keep confidential any information disclosed to it by the other. Nothing in this clause shall apply to any information which is (or becomes) available to the public other than by breach of these terms or where the Party receiving the information already possesses it or obtains it from a third party in circumstances in which the disclosing and receiving parties are free to disclose it.
http://www.mineinternational.com/privacy-policy and you agree that you will not exploit or use your Customised MAS in any way to violate or breach the privacy rights of End Users or third parties.
– The Parties acknowledge that you have entered into a Customer Agreement with an MIL authorised VAR.
– If you default on any payment due to the VAR under the terms of the Customer Agreement and such non-payment remains outstanding for 14 days or more (Non-payment Event):
– MIL may terminate this Agreement in accordance with the Termination clause defined within this agreement; and
Limitations on Liability
Nothing in these terms shall exclude or in any way limit either Party’s liability for fraud, or for death and personal injury caused by that Party’s negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.
Subject the above:
We shall not be liable under or in connection with these terms to you for any:
1. loss of profits, business revenue and/or interruption, information and/or data, opportunity, contracts, goodwill, reputation and/or anticipated savings; and/or
2. any indirect or consequential loss or damage of whatever nature and however arising.
Our maximum aggregate liability under or in connection with these terms, whether in contract, tort (including negligence) or otherwise, shall be limited to a maximum aggregate amount of US$100.
These terms set out the full extent of our obligations and liabilities in respect of the supply of the Customised MAS to you. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in these terms. Any condition, warranty, representation or other term concerning the supply of the Customised MAS which might otherwise be implied into, or incorporated in, these terms, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law. For clarity, nothing in this clause limits or excludes any liability for fraud.
You shall defend, indemnify and hold harmless MIL and its respective officers, directors, employees, agents, and representatives against all losses, costs, damages, and expenses (including legal costs and disbursements on a solicitor and client basis) suffered or incurred and arising out of or in connection with any claim or demand made or threatened arising out of or in relation to:
1. any of the Customer-branding, MAS Content, or third party content added or made available by you which is accessible by, contained in or displayed on your Customised MAS;
2. your use of your Customised MAS;
3. End Users’ use of your Customised MAS;
4. any violation of End User privacy rights or the creation of a security breach caused by you; and
5. any breach or alleged breach of any representation, warranty or obligation given by you.
Term and Termination
1. This Agreement shall take effect from the date that you accept these terms and shall continue in full force and effect until it is terminated by either Party.
2. Either Party may terminate this Agreement immediately by notice to the other if the other Party materially breaches any of these terms and (if it is possible to remedy the breach) fails to remedy that material breach within 30 days of notice of that breach being given to it or if the other Party becomes insolvent (or suffers or incurs any event or circumstances analogous to insolvency).
Upon the occurrence of a Non-payment Event, MIL may terminate this Agreement with immediate effect by giving you notice of such termination.
Upon termination of the Customer Agreement, either Party may terminate this Agreement immediately by giving the other Party written notice.
If you breach any of your obligations under this Agreement, MIL shall (without prejudice to any other right or remedy available to it) have the right to immediately suspend performance of any of its obligations under this Agreement and/or your right to continue to use your Customised MAS until such time as your obligations have been fully and properly performed under this Agreement and to the reasonable satisfaction of the MIL.
Upon termination or expiry of this Agreement (for whatever reason):
1. MIL shall no longer provide your Customised MAS and your licence granted under this agreement shall automatically be revoked;
2. you shall immediately stop all use of your Customised MAS; and
Termination or expiry of this Agreement shall not affect any rights and/or liabilities of the parties which were accrued prior to the date of termination or expiry (as the case may be).
1. Neither Party shall be liable for any delay or failure in performing any of its obligations under these terms if such delay or failure is caused by circumstances beyond the reasonable control of the Party concerned (including, without limitation, any delay caused by any act or default of the other Party).
2. If any provision of these terms is held for any reason to be void, voidable or unenforceable this shall not affect the validity or enforceability of any other provision of these terms or of the remainder of these terms as a whole.
3. You may not without the prior written consent of MIL assign, transfer, sub-licence, sub-contract or otherwise deal with the any of your rights and/or obligations under these terms. MIL may assign, transfer or otherwise deal with all of (or any part of) your rights and/or obligations under these terms without your consent.
4. These terms form the entire understanding of the parties in relation to its subject matter and supersede and replace all previous agreements, understandings, arrangements and/or representations (whether in writing or otherwise) in relation to its subject matter. Each Party acknowledges that in entering into these terms it is not relying on any representation, warranty, promise or assurance made or given by the other Party (whether in writing or otherwise) at any time prior to the acceptance of these terms. MIL does not provide any warranty or representation that the Customised MAS will be fit for any particular purpose or of any particular quality. Nothing in this clause limits or excludes any liability for fraud.
5. Any party who is not a Party to these terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms and this does not effect any right or remedy of a third party which exists or is available apart from that Act.
6. The parties agree that the relationship between them is that of licensor and licensee and that you are not a distributor, agent or partner of MIL. You must not assume any obligations and/or liabilities of any nature on behalf of MIL, must not make any representations on behalf of MIL and must not bind (or attempt to bind) MIL in any way.
7. You agree that you will not make any public announcement or statement and/or give any press briefing of any nature in relation to and/or in connection with these terms and/or the Customised MAS without the prior written consent of MIL.
These terms are governed by English law. Any dispute arising from, or related to, any term of this Agreement shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.