End User License Agreement
This End-User License Agreement (“Agreement”) governs the terms and conditions upon which Licensee has obtained a license regarding the Menditect Application(s) through a Menditect Partner or Menditect directly, as the case may be. Menditect and Licensee shall herein referred to each as a “Party” and collectively as the “Parties”.
All capitalized terms used in this Agreement that are not otherwise defined herein, shall have the meaning shown below, for both singular and plural forms. Unless otherwise specified, any reference in this Agreement to a section or other subdivision is a reference to a section or subdivision of this Agreement.
- “Affiliates” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
- “App” or “Application” means Licensee’s Application Model as deployed on and interpreted by the Mendix Platform in order to make it a functioning application ready to process Licensee Data.
- “Application Model” means the visual model of Licensee’s application, which visual model has been created by Licensee or by a third party per Licensee’s instructions and requirements, making use of the Mendix Platform.
- “Claim” has the meaning given to it in section 8.1 (Menditect Indemnification).
- “Confidential Information” has the meaning given to it in section 3.1 (Confidential Information).
- “Documentation” means the documentation provided by Menditect to assist users in the use of the Menditect Application(s) describing the operational functionality of (elements of) the Menditect Application(s), including user and system administrator guides and manuals, found in the MTA product.
- “DPA” has the meaning given to it in section 7.5 (Data Protection).
- “End-of-Life-Date” has the meaning given to it in section 2.7 (End-of-Life-Date).
- “Feedback” means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer, its Affiliates, and/or Users relating to the features or operation of the Menditect Application(s) and Documentation or services.
- “Incident” has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
- “Licensee Data” means any electronic information, including but not limited to, any data, information or material, such as posts, comments, documents, project information, application data, user information and account information which is submitted, created, saved, added, uploaded or made available in the Application. For the avoidance of doubt, the Application Model is not part of Licensee Data.
- “Menditect” is a private limited liability companies under Dutch law with the name Menditect B.V. and/or any affiliated or subsidiary company
- “Menditect Application(s)” means all software and services provided by Menditect whether such software and services are provided physically at Licensee’s location, through the internet or installed on Licensee’s hardware, including but not limited to, the Menditect website(s) and Documentation.
- Private Menditect Application Programming Interface (“Private API”) is any API that is not explicitly published by Menditect as a public API.
- “Mendix Platform” means all software and services provided by Mendix (www.mendix.com) whether such software and services are provided physically at Licensee’s location, through the internet or installed on Licensee’s hardware, including but not limited to, the Mendix website(s), (Web / Desktop) Modeler, Team Server, Platform Portal (Cloud Portal and Developer Portal), App Store, Support Portal, Partner Portal, Mendix Cloud, Mendix Runtime, Mendix Community, Mendix Forum, Sandbox, Platform-as-a-Service, and Documentation.
- “Legal Notices” has the meaning given to it in section 9.7 (Notices).
- “Losses” has the meaning given to it in section 8 (Indemnification).
- “Order Document” means an ordering document provided by a Menditect Partner and signed by Licensee, which details, amongst other things, the subscription or other services to be provided by Menditect, the applicable usage limitations and the price payable by Licensee for the Menditect Application(s) and related services, and the term for which the Menditect Application(s) and any related services are provided.
- “Representatives” has the meaning given to it in section 3.1 (Confidential Information).
- “Security Breach” has the meaning given to it in section 7.8 (Incident Management and Breach Notification).
- “Subscription Term” means the term for the recurring/ongoing services, such as subscription items, as set forth in the relevant Order Form.
- “Update” means a modification made by Menditect to the Menditect Application(s) and provided to Licensee under the terms and conditions of this Agreement. Updates shall not include any version, option or future products provided by Menditect not included in the subscription as set forth in the relevant Order Form.
- “Upgrade” means a new, major software release of the Menditect Application(s) whose primary purpose is to add new functionality or enhance the performance of the Menditect Application(s), which is identified by an increment in the first two (2) numbers of the software version. Notwithstanding the foregoing, an Upgrade will not include new software or modules (whether or not branded as Menditect software) that Menditect markets and prices separately.
- “Users” means individuals who are authorized by Licensee to use the Menditect Application(s) and have been supplied passwords by Licensee (or by Menditect at Licensee’s request). Users consist of any employee of Licensee or its Affiliates and any independent contractor of Licensee or its Affiliates.
2.1. Access. Menditect shall (a) provide Licensee with (access to) the Menditect Application(s) and related services, specified on an Order Document, pursuant to this Agreement, and (b) use commercially reasonable efforts to make the Menditect Application(s) available 24 hours a day, 7 days a week, save for: (i) planned downtime (of which Menditect will give advance electronic notice as provided in the Documentation and/or applicable service level agreement); and (ii) any unavailability caused by circumstances beyond the reasonable control of Menditect as set forth in section 9.10 (Force Majeure). Support will be provided in accordance with the service level determined in the applicable Order Document and as set forth in the applicable service level agreement. Any conflict between the terms and conditions set forth in this Agreement, the applicable service level agreement and any Order Document shall be resolved in favor of this Agreement, unless explicitly agreed otherwise in writing. Licensee agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Menditect regarding future functionality or features.
2.2. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of the subscription fees set forth on the applicable Order Document, Menditect hereby grants to Licensee and its Affiliates, solely during the Subscription Term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)) license to access and use the Menditect Application(s) solely for Licensee’s internal business purposes. This license is restricted to use by Licensee and its Affiliates, and its Users and does not include the right to use the Menditect Application(s) on behalf of any third party. Furthermore, this license is subject to the limitations set forth on the applicable Order Document, including but not limited to: instances, users, storage, memory, time or other designated metric. Licensee and its Affiliates obtain a right to use and access the Menditect Application(s) only, and therefore have no right to receive a copy of the source code of the Menditect Application(s). Licensee is responsible for procuring and maintaining the network connections that connect Licensee to the Menditect Application(s). Licensee agrees: (i) that only authorized Users are permitted to use the Menditect Application(s); (ii) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement; and (iii) to otherwise take all commercially reasonable steps to protect the Menditect Application(s) and the Documentation from unauthorized use and/or access.
2.3. Feedback. Notwithstanding anything to the contrary in this Agreement, Licensee hereby agrees that all intellectual property rights in the Feedback, and all other ownership in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to the Menditect Application(s), are hereby assigned to Menditect and shall be the sole and exclusive property of Menditect. All Feedback shall be treated as Menditect’ Confidential Information.
2.4. License Restrictions. Notwithstanding anything set forth in this Agreement to the contrary, Licensee may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute its rights to any other person or otherwise commercially exploit the Menditect Application(s) in any other way than explicitly allowed under this Agreement; (ii) make the Menditect Application(s) available to anyone who is not a User; (iii) create any derivative works based upon the Menditect Application(s) or Documentation other than an Application Model; (iv) copy any feature, design or graphic, or reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Menditect Application(s); (v) access or let anyone access the Menditect Application(s) in order to build a competitive solution or to assist someone else to build a competitive solution; (vi) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) send, upload, store or otherwise transmit, display or distribute any unlawful, infringing, tortious, obscene, threatening, abusive, harassing, defamatory, vulgar, libelous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable material, including but not limited to children or material that violates third party privacy rights or infringes any proprietary rights or intellectual property rights; (viii) interfere with or disrupt the integrity or performance of the Menditect Application(s) or the data contained therein; (ix) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or (x) use the Menditect Application(s) in a way that violates any criminal, public or civil law. (xi) call a Menditect “Private API” from other systems than Menditect Application(s)
2.5. Affiliates. Subject to the terms of the Order Document, Licensee may make the Menditect Application(s) available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that Licensee shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.
2.6. Licensee Responsibility. Licensee is and remains responsible for: (i) all activities conducted under its User logins and for its Users’ compliance with this Agreement; (ii) maintaining up-to-date hard-/software that is compatible with the Menditect Application(s), as set out in the Documentation; (iii) a high-speed/broadband internet connection of good quality and reliability to access the Menditect Application(s) and/or Applications; (iv) scheduling, implementing and/or installing changes for Updates and Upgrades of the Menditect Application(s), as well as for upgrading of Licensee’s equipment in order to make efficient use of the Menditect Application(s); and (v) providing all information, access and good faith cooperation reasonably necessary to enable Menditect to meet its obligations under this Agreement and/or an Order Document (if Licensee fails to do so, Menditect will be relieved from its obligations under such agreement to the extent that such obligations are dependent upon Licensee’s performance or cooperation).
2.7. End-of-Life-Date. Menditect recognizes that Licensee may have legitimate business reasons for not upgrading to a new, major software release of the Mendix Platform as soon as an Upgrade becomes available. However, Menditect will only support the current major release and the two (2) prior major releases of the Mendix platform.
2.8. Non-Menditect Providers. Menditect or third parties may make available (e.g. through a marketplace or otherwise) third-party products or services, including, but not limited to: (i) web-based, mobile, offline or other software application functionality that is (a) provided by Licensee or a third party and interoperates with a service, including, for example, an application that is developed by or for Customer, or (b) is listed on a marketplace (such as app services, layouts, modules, themes, widgets, GitHub or connectors); and (ii) implementation and other consulting services. Any acquisition by Licensee of such products or services, and any exchange of data between Licensee and any non-Menditect provider, product or service is solely between Licensee and the applicable non-Menditect provider. Menditect does not warrant or support such non-Menditect functionality or other non-Menditect products or services, whether or not they are designated by Menditect as ‘certified’ or otherwise, unless expressly provided otherwise in an Order Document.
3.1. Confidential Information. Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software and unannounced product information (“Confidential Information”). Confidential Information shall also include the Application Model, Licensee Data and any other information disclosed by a Party to the other Party, in whatever form, including visually and orally, and designated in writing as proprietary or confidential, or which – to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates – is of a proprietary or confidential nature. During the term of this Agreement and following three (3) years after its termination, each Party will not disclose any such Confidential Information except as set forth herein. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The Parties expressly agree that the terms of this Agreement are Confidential Information and Licensee further agrees that it shall not use the services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without Menditect’ prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
3.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, where legally permitted to do so, it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
3.3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
4 Warranties; Disclaimer
4.1. General. Each Party represents and warrants that: (i) it has the legal power to enter into and perform under this Agreement; and (ii) it will comply with all laws and regulations in the performance of this Agreement. Menditect has implemented and will maintain during the term of this Agreement security measures reasonably designed to protect the confidentiality, security and availability of the Customer Data.
4.2. Menditect Application(s) Warranties. Menditect warrants that: (i) the Menditect Application(s) will function substantially as described in the Documentation; and (ii) Menditect owns or otherwise has secured the right to provide the Menditect Application(s) to Licensee and its Affiliates under this Agreement.
- 4.2.1. Notwithstanding any service level arrangements between the Parties, if the Menditect Application(s) does not function substantially in accordance with the Documentation, Menditect must, at its option and at its own expense, either (a) modify the Menditect Application(s) to conform to the Documentation, or (b) provide a workaround solution that will reasonably meet Licensee’s requirements. If neither of these options is commercially feasible, either Party may terminate the relevant Order Document under this Agreement, in which case Menditect shall refund to Licensee all fees pre-paid to Menditect under the relevant Order Document for the period in which the Menditect Application(s) will remain unused by Licensee.
- 4.2.2. However, Menditect makes no warranties: (i) to the extent that the Menditect Application(s) has been modified by Licensee, its Affiliates or any third party, unless such modification has been approved by Menditect in writing; (ii) for a version of the Menditect Application(s) that has passed its End-of-Life-Date; or (iii) for errors, omissions, problems, malfunctions, faults, etc. in the Menditect Application(s) caused by any third-party software or hardware, by accidental damage or by other matters beyond Menditect’ reasonable control.
4.3. No Other Warranty. MENDITECT DOES NOT REPRESENT THAT THE MENDITECT APPLICATION(S) WILL BE ERROR-FREE, OR THAT IT WILL MEET LICENSEE’S REQUIREMENTS, OR THAT IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS OR ERRORS IN THE MENDITECT APPLICATION(S), OR THAT THE OVERALL SYSTEM THAT MAKES THE MENDITECT APPLICATAION(S) AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND LICENSEE’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE USE THE MENDITECT APPLICATAION(S) WILL BE UNINTERREUPTED OR ERROR FREE. MENDITECT MAKES NO WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY THIRD PARTIES. THE WARRANTIES STATED IN SECTION 4 (WARRANTIES) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY MENDITECT, THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSEE ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE MENDITECT APPLICATION(S) ARE ACCURATE OR SUFFICIENT FOR LICENSEE’S PURPOSES, AS WELL AS THE SELECTION OF THE MENDITECT APPLICATION(S) AND DOCUMENTATION NECESSARY TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE MENDITECT APPLICATION(S).
5 Limitation of Liability
5.1. Consequential Damage Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOSS OF PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION) IN CONNECTION WITH THE USE OR PERFORMANCE OF THE MENDITECT APPLICATION(S), OR THE USE OR PERFORMANCE OF ANY OTHER OBLIGATION UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
5.2. Limitation of Liability. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE AGREEMENT, THE APPLICATION AND/OR RELEVANT ORDER DOCUMENT/FORM SHALL NOT – IN ANY EVENT, OR MULTIPLE, RELATED SUBSEQUENT EVENTS – EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY LICENSEE TO MENDITECT UNDER THE APPLICABLE ORDER DOCUMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
5.3. Exclusions. HOWEVER, NOTHING IN THIS SECTION 5 SHALL HAVE THE EFFECT OF LIMITING A PARTY’S LIABILITY FOR (a) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF THE OTHER PARTY, (b) ITS INDEMNITY OBLIGATIONS, (c) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (d) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR (e) INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
6 Term and Termination
6.1. Term. This Agreement will commence on the date Licensee has duly executed and returned this Agreement to Menditect, and will continue in effect until otherwise terminated in accordance with section 6.2 (Termination) below. The Subscription Term shall be set forth on the Order Document. Unless otherwise expressly provided in the applicable Order Document, the Subscription Term shall automatically renew for additional terms of one (1) year each unless either Party notifies the other Party in writing at least sixty (60) days prior to the then current expiration date that it has elected not to renew. The per-unit pricing during any automatic renewal Subscription Term will be the same as that during the immediately prior Subscription Term, unless Menditect has given Licensee written notice of a pricing increase at least ninety (90) days prior to the end of the then current Subscription Term, in which case the pricing increase will be effective upon subscription renewal and thereafter. Any such pricing increase will not exceed 5% of the subscription pricing in the immediately prior subscription term, unless the pricing in the prior Subscription Term was designated in the relevant Order Document as promotional or one-time.
6.2. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Document immediately (a) in the event of a material breach of this Agreement or any such Order Document by the other Party that is not cured within thirty (30) days of written notice from the other Party; or (b) if the other Party ceases doing business or is the subject of a bankruptcy or insolvency proceeding, that is not dismissed within sixty (60) days of filing. Termination or expiration of an Order Document shall not be deemed a termination of this Agreement. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Documents then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form and SOW, including but not limited to sections 3 (Confidentiality), 4 (Warranties; Disclaimer), 5 (Limitation of Liability), 7 (Ownership; Licensee Data; Data Protection; Security), 8 (Indemnification), 9.5 (Disputes), 9.7 (Notices), 9.14 (Non-Solicitation of Employees) and 9.16 (Waiver and Severability).
6.3. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Document, Menditect shall no longer provide the Menditect Application(s) as applicable to Licensee and Licensee shall promptly cease and cause its Users to promptly cease using the Menditect Application(s). Licensee shall pay Menditect for all fees that had accrued prior to the termination or expiration date. Menditect also reserves the right to suspend Licensee’s access to the Menditect Application(s) at any time, without having to terminate this Agreement or an Order Document, if Licensee is more than sixty (60) days late with respect to any undisputed payments due hereunder. Except as expressly provided herein, termination of this Agreement by either Party will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon termination or expiration of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession, provided, however, Licensee may retrieve all Licensee Data as set forth in section 7.9 (Data Portability).
7 Ownership; Licensee Data; Data Protection; Security
7.1. Ownership Menditect Application(s). Licensee acknowledges and agrees that as between Menditect and Licensee, all right, title and interest in and to the Menditect Application(s) and Documentation, and including all modifications and configurations, all Menditect data and Confidential Information, and all of Menditect’ proprietary technology, including without limitation, all software, products, processes, algorithms, user interfaces, knowhow, techniques, designs and other tangible or intangible technical material or information made available to Licensee by Menditect in providing the Menditect Application(s) and Documentation and all derivatives thereof are and shall remain Menditect’ or its licensors’. The Menditect name and logo, and the product names associated with the Menditect Application(s) are trademarks of Menditect or third parties, and no right or license is granted to use them. During the term of this Agreement, Menditect grants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)), royalty-free right to use, display, transmit, and distribute the Menditect data solely in connection with Licensee’s permitted use of the Menditect Application(s) and Documentation. Menditect shall have the right to collect, use and distribute aggregated information, analysis, statistics and other data generated by the Menditect Application(s) and Documentation (or derived from Licensee’s use of the Menditect Application(s) and Documentation) provided, however, that Menditect shall not disclose any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify the data as associated with Licensee or any of its Users.
7.2. Ownership of Licensee Data and Application Model. Licensee retains ownership of all right, title and interest in and to all Licensee Data and the Mendix Application Model. During the term of this Agreement, Licensee hereby grants to Menditect a limited, worldwide, non-exclusive, non-transferable (except as set forth in section 9.4 (Assignment)), royalty-free right to use, store, display, transmit, and distribute Licensee Data and the Application Model solely as necessary to provide its services to Licensee, and for no other purpose whatsoever.
7.3. Licensee Data. Licensee is solely responsible for the accuracy, integrity and quality of Licensee Data for use in the Menditect Application(s) and Mendix Application Model. Menditect shall not modify or add to the Licensee Data and Menditect shall not make any claim for any right of ownership in the Licensee Data and/or Mendix Application Model.
7.4. Back-up and Disaster Recovery. The Licensee Data is automatically backed-up daily. Back-ups are stored in secure, geographically dispersed locations and Menditect offers disaster recovery services. Upon termination of this Agreement or the expiration of the last term under an Order Document Menditect shall no longer have the obligation to preserve or back-up any Licensee Data.
7.5. Data Protection. Each Party to this Agreement warrants that it shall (seek to) comply at all times with its obligations under data protection laws and regulations applicable to the Parties in connection with the provision and consummation of the services hereunder, such as, but not limited to the EU Data Protection Directive 95/46/EC as implemented in local laws and regulations in the relevant jurisdiction, US federal privacy laws (e.g. the Health Insurance Portability and Accountability Act (HIPAA) and Judicial Redress Act), and the South African Protection of Personal Information Act 2013 (POPI) (individually and collectively referred to as the “DPA”). Unless expressly stated otherwise, (a) Licensee and/or its Affiliates is and shall remain the data controller of the Licensee Data (which, for the purposes of this Agreement, may include personal data / personally identifiable information it uploads, stores or provides as part of the services under this Agreement, as the case may be), and (b) Menditect is a service provider to Licensee that is and shall remain the data processor of the same, as defined in the DPA. In this respect Menditect will: (i) act, as a data processor, only on and comply with Licensee’s instructions in relation to the processing of Licensee Data as given and varied from time to time by Licensee; (ii) take appropriate technical and organizational security measures, taking into account both the state of technologies and the costs of implementation, against unauthorized or unlawful processing or further processing of Licensee Data, and against accidental loss or destruction of, and damage to Licensee Data; (iii) at the request of Licensee, inform Customer of the general scope of security measures taken; and (iv) keep Licensee Data confidential in accordance with the applicable contractual confidentiality obligations. Notwithstanding anything to the contrary, to provide the services in the most efficient manner, Menditect reserves the right to use suppliers and subcontractors including for processing, hosting and storage purposes, which Licensee accepts, whereby Menditect remains responsible for the quality of the services under this Agreement, and the suppliers’ and subcontractors’ compliance with the DPA as it applies to data processors. In this respect Licensee consents that Licensee Data may be processed, hosted and stored from locations either in the United States (by default for customers domiciled in the United States, Canada or a country in Central or South America or the Caribbean) or Europe (by default for customers domiciled elsewhere than in the aforementioned countries), in accordance with the above requirements.
7.6. Organization Level Security Measures. Menditect commits to embed security in company processes and standard operating procedures by adopting a representative subset of the ISO 27001 Information Security Framework.
7.7. Incident Management and Breach Notification. Menditect evaluates and responds to incidents that create suspicion of unauthorized access to or handling of Licensee Data (“Incident”). Menditect is informed of such Incidents and, depending on the nature of the activity, defines escalation paths and response teams to address those Incidents. Menditect will work with Licensee and, where necessary, with outside law enforcement to respond to the Incident. The goal of the Incident response will be to restore the confidentiality, integrity, and availability of the services, and to establish root causes and remediation steps. For purposes of this section 7.8, “Security Breach” means the misappropriation of Licensee Data located on Menditect systems that compromises the security, confidentiality or integrity of such information. Menditect will inform Licensee within 36 hours if Menditect determines that Licensee Data has been subject to a Security Breach (including by a Menditect employee) or any other circumstance in which Licensee is required to provide a notification under applicable law, unless otherwise required by law. Menditect will promptly investigate the Security Breach and take reasonable measures to identify its root cause(s) and prevent a recurrence. As information is collected or otherwise becomes available, unless prohibited by law, Menditect will provide Licensee with a description of the Security Breach, the type of data that was the subject of the breach, and other information Licensee may reasonably request concerning the affected persons. The Parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected persons and/or the relevant data protection authorities.
7.8. Data Portability. At all times during the subscription term and at the latest until thirty (30) days have passed following the earliest of (a) termination of this Agreement or (b) the expiration of the last term under an Order Document, Licensee may retrieve all Licensee Data in accordance with established and reasonable system access procedures. After such period, Menditect will have no further obligation to store and/or make available the Licensee Data and may delete the same, except as may be required by law.
7.9. Legally Required Disclosures. Except as otherwise required by law, Menditect will promptly notify Licensee of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority that it receives and which relates to Licensee Data. At Licensee’s request, Menditect will provide Licensee with reasonable information in its possession that may be responsive to such demand and any assistance reasonably required for Licensee to respond to said demand in a timely manner. Licensee acknowledges that Menditect has no responsibility to interact directly with the entity making the demand.
8.1. Menditect Indemnification. Subject to section 8.3 (Indemnification Procedure) below, Menditect will indemnify, defend and hold Licensee and its Affiliates harmless from and against any claim, demand, suit, action or proceeding (collectively, a “Claim”), and will pay any costs, liabilities, losses, and expenses (including but not limited to, reasonable attorneys’ fees) awarded against Licensee either in judgment or settlement agreed to by Menditect in writing (collectively, “Losses”), arising out of or in connection with an allegation by a third party against Licensee or any of its Affiliates that the use of the Menditect Application(s) and Documentation as permitted hereunder infringes any intellectual property right or constitutes a misappropriation of a trade secret of a third party. Excluded from Menditect’ above indemnification obligations are claims to the extent arising from: (i) use of the Menditect Application(s) and Documentation in violation of this Agreement or applicable law; (ii) continued use by Licensee of the Menditect Application(s) and Documentation after Menditect has notified Licensee in writing to cease the use of the Menditect Application(s) and Documentation; (iii) any claim relating to any third-party products or services or Licensee Data; (iv) modifications to the Menditect Application(s) and Documentation made other than by Menditect (where the claim would not have arisen but for such modification); (v) the combination, operation, or use of the Menditect Application(s) with software or equipment which was not provided by Menditect, to the extent that Licensee’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (vi) compliance by Menditect with Licensee’s custom requirements or specifications if and to the extent such compliance with Licensee’s custom requirements or specifications resulted in the infringement. If Licensee’s use of the Menditect Application(s) becomes enjoined, Menditect shall at its sole option, either: (i) procure, at no cost to Licensee, the right to continue using the Menditect Application(s); (ii) modify the Menditect Application(s) to render it non-infringing; or (iii) if, in Menditect’ reasonable opinion, neither (i) nor (ii) above are commercially feasible, immediately terminate this Agreement (and Licensee’s rights to use the Menditect Application(s)), and refund to Licensee fees paid for the Menditect Application(s) on a pro rata basis for the remainder of the then-current Subscription Term. The rights and remedies granted to Licensee under this section 8.1 state Menditect’ entire liability, and Licensee’s exclusive remedy, with respect to any claim or infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
8.2. Licensee Indemnification. Subject to section 8.3 (Indemnification Procedure) below, Licensee will indemnify, defend and hold Menditect and its Affiliates harmless from and against any Claim and shall pay all Losses incurred which arise out of any allegation by a third party against Menditect or any of its Affiliates that arises out of or results from (a) a claim alleging that the Licensee Data, or any use thereof, infringes the intellectual property rights or proprietary rights or others, or negatively impacts (protection of) the privacy of individuals, or otherwise has caused harm to a third party, or (b) Licensee’s breach of section 2 (Access) above or violation of any applicable law or regulations.
8.3. Indemnification Procedure. The indemnified Party shall: (i) promptly notify the indemnifying Party in writing of any claim, suit, action, or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any Claim and all negotiations for settlement, provided that the indemnifying Party shall not settle any Claim that imposes a financial obligation or admission of liability or guilt on the indemnified Party without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim, at the indemnifying Party’s cost, however the indemnified Party shall bear all costs of engaging its own counsel.
9 General Provisions
9.1. Export Compliance. The Menditect Application(s) and other technology and services Menditect may make available to Licensee, and all derivatives thereof, may be subject to export laws and regulations of the United States, United Kingdom, European Union and other jurisdictions. Each Party represents that it is not named on any denied-party list. Furthermore, Licensee shall not permit Users to access or use the Menditect Application(s) and other technology and services Menditect may make available to Licensee, and all derivatives thereof, in an embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any applicable export law or regulation.
9.2. Anti-Corruption. Licensee agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or anything of value from any of Menditect’ employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Licensee learns of any violation of the above restriction, Licensee will use reasonable efforts to promptly notify Menditect’ legal and business conduct department at info@Menditect.com.
9.3. Entire Agreement and Order of Precedence. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understanding, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. The Parties agree that any term or condition stated in Licensee’s purchase order or in any other Licensee order documentation (excluding Order Documents) is void, even if the order is accepted by Menditect. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order Document, (3) the applicable service level agreement, and (4) the Documentation.
9.4. Assignment. Either Party may assign this Agreement, and all Order Documents, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Menditect may use independent contractors or subcontractors to assist in the delivery of services, provided, however, that Menditect shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
9.5. Disputes. The Parties shall attempt in good faith to resolve any claim or dispute concerning the Agreement prior to the commencement of litigation.
9.6. Contracting Menditect entity, Governing Law and Jurisdiction. The Menditect entity Licensee is contracting with under this Agreement, to whom Licensee should direct notices under this Agreement, the governing law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, without giving effect to any choice of conflict of law provision or rule, and which courts shall have jurisdiction over any such dispute or lawsuit, shall be determined based on where Licensee is domiciled:
|If Licensee is domiciled in:||Licensee is contracting with:||Notices should be addressed to:||The governing law is:||The courts having exclusive|
|A country in the European Union||Menditect B.V.||Databankweg 12G, 3821 AL, Amersfoort, The Netherlands||Dutch laws||Utrecht, The Netherlands|
9.7. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Licensee will be addressed to the relevant billing contact designated by Licensee. All other notices to Licensee will be addressed to the relevant contact person / administrator designated by Licensee at the address stated at the beginning of this Agreement.
9.8. Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
9.9. Relationship of the Parties. Menditect and Licensee are independent contractors, and nothing in this Agreement shall be construed as making them partners, joint venturers, principals, agents or employees of the other, for any purposes whatsoever. No officer, director, employee, agent, affiliate or contractor retained by Menditect to perform work on Licensee’s behalf under this Agreement shall be deemed to be an employee, agent or contractor of Licensee. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
9.10. Force Majeure. Except for the obligation to make payments, neither Party shall be in default if failure to perform any obligation hereunder is caused solely by supervening conditions beyond the non-performing Party’s reasonable control, including but not limited to civil commotion, strikes, fire, flood and governmental acts or orders of restriction, internet service provider failure or delay, or denial of service attacks. When a Party’s delay or nonperformance continues for a period of thirty (30) days or more, the other Party may terminate this Agreement, the applicable Order Document without penalty. Any prepaid amounts shall be refunded on a prorated basis.
9.11. Insurance. Menditect shall maintain in full force and effect during the term of any Order Document comprehensive insurance with a reputable insurance company to cover its potential liabilities under this Agreement, such as commercial general liability insurance and professional liability insurance (errors and omissions). As evidence of insurance coverage, Menditect shall deliver if requested certificates of insurance issued by that insurance company showing such policies in force during the term of this Agreement.
9.12. Modifications to the Menditect Application(s). Menditect may make modifications to the Menditect Application(s) or particular components of the Menditect Application(s) from time to time provided that such modifications do not materially degrade any functionality or features of the Menditect Application(s).
9.13. Publicity. Licensee hereby grants Menditect a non-exclusive license solely during the term of this Agreement to list Licensee’s name and display Licensee’s logo in the customer section of Menditect’ website and to use Licensee’s name and logo in Menditect’ customer lists but at all times only to the extent that other customers of Menditect are also listed on such list. Any other use by Menditect of Licensee’s name, logo or trademark requires the prior written consent of Licensee.
9.14. Non-Solicitation of Employees. During the term of this Agreement and for the twelve (12) months thereafter, neither Licensee nor Menditect, shall knowingly solicit or hire for employment or as a consultant, any employee or former employee of the other Party who has been actively involved in the subject matter of this Agreement. The foregoing restriction shall not apply to any general recruiting efforts of either Party which are not aimed specifically at the employees of the other Party.
9.15. No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
9.16. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
9.17. Counterparts. Signatures to this Agreement transmitted by facsimile, by electronic mail in ‘portable document format’ (‘.pdf’), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.
10 Questions or Additional Information