Mindpro products are proprietary software applications. Your use of Mindpro software is subject to the terms and conditions described in this End User License Agreement.
Please note, you are also responsible for periodically reviewing this End user License Agreement, as it may be updated from time to time. You understand and accept that further use of Mindpro software products, should this End user License Agreement be updated, is subject to your acceptance of the revised Agreement.
This End User License Agreement (“EULA”) is a binding legal agreement between you, either as an individual or, an entity, and its Affiliates (“Licensee”) and Mindpro (“Licensor”) concerning its Software (as defined below).
An amendment or addendum to this Agreement may accompany the Software, and any such amendment or addendum shall be considered part of the Agreement.
Please read the Agreement carefully. By installing, copying, downloading, or otherwise using the Software, or by clicking a box indicating your acceptance, it means that you agree with the terms of this Agreement.
If you are entering into this agreement on behalf of an entity, you represent that you have the authority to bind such entity to the Agreement and are agreeing to the Agreement for that entity.
If you do not agree with the terms of this Agreement, you must not install, copy, download, or otherwise use the Software.
2. GRANT OF LICENSE
The Software is licensed, not sold. Upon Licensee’s acceptance of this Agreement, Licensor grants the Licensee the right to use the Software as follows:
2.1 Paid License
2.1.1 Authorized Users: The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.
2.1.2 Backup: The Licensee is permitted to copy the Software for data protection, archiving, and backup purposes only and for no other purpose. Only the minimum number of backup copies may be made.
2.1 Evaluation License
2.2.1 Installation and Use. Licensor may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
2.2.2 The evaluation license period expires in 30 days, after this period Licensee will be charged to continue using the software. For further details see section 2.1.
2.3 License Restrictions
2.3.1 Licensee agree not to (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software; (b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine-readable form any part of or the whole of the Software or any data/information not owned by the Licensee; (c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and (d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.
2.4 General License Terms
2.4.1 Scope. Each license granted by Licensor under this Agreement is worldwide, nonexclusive and non-transferable, unless otherwise specified in writing.
2.4.2 Duration. Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, the term granted hereunder shall be: (a) for a Paid License of the downloaded Software – perpetual; (b) for an Evaluation License – the Evaluation Period.
2.4.3 Protection Mechanisms. The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of the Licensor and its third-party suppliers. Licensee must not modify, alter, attempt to defeat, or defeat such protection mechanisms or use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.
2.4.4 Permitted Computers. Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.4.5 Responsibility for Non-controlled systems. If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased, or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this Agreement are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.
The Licensee must pay all Fees by the due date and in the manner directed at the time of purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this Agreement.
4.1 Supplemental Software and Services. This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Software, that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software (“Supplemental Software”) unless Licensor provides additional terms with any Supplementary Software.
4.2 Support Services. Mindpro will provide the support and maintenance services for the products during the period for which you have paid the applicable fee. The use of the Support Services is governed by our Service Level Agreement: Mindpro Support – Service Level Agreement (SLA)
5. INTELLECTUAL PROPERTY
5.1 Ownership and Reservation of Rights. Licensor retains all rights, title, and interest in and to the Software (other than Embedded Software), as well as all intellectual property rights (such as copyright, patent, and trademark) in and to the Software not expressly granted to Licensee in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.
5.2 Embedded Software. The Licensor’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this Agreement. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.
5.3 Licensee shall not remove markings. Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.
6. BREACH BY LICENSEE
6.1 General. If the Licensee breaches or materially breaches any of its obligations or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing as required in Section 16.
6.2 Breach of Additional Licenses. Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this Agreement, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
7.1 Without prejudice to any other rights and in addition to any other termination rights in this Agreement, Licensor may terminate with immediate effect, this Agreement if: (a) the Licensee fails to comply with the terms and conditions of this Agreement; (b) Licensee or a third-party commences a judicial or administrative proceeding under a law relating to insolvency for the purpose of reorganizing or liquidating the Licensee or restructuring its debt; (c) a person is appointed or authorized, by law or under a contract, to take charge of the property of the Licensee for the purpose of enforcing a lien against that property, or for the purpose of the general administration of that property for the benefit of the Licensee’s creditors, or (d) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts.
7.2 Upon termination of a license granted under this Agreement, the Licensee must at its own cost as soon as is reasonably practicable: (a) cease access to and cease use of the Software; (b) remove all copies of the Software from its computer systems or any Un-controlled Systems, including archival or backup systems; and (c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
7.3 Upon at least 30 days notice Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
7.4 Survival. All sections which reasonably should survive termination of this Agreement will survive, such as Sections 1, 5, 8-10, 12, 14-16.
8.1 Indemnification by Licensor. Subject to Section 10, Licensor will indemnify and hold harmless Licensee against any claim, demand, loss, or damages (including attorney fees and costs) arising out of or related to (a) the infringement of a third party’s intellectual property rights related to Licensee’s or its Authorized Users use of the Software.
If the Software becomes, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party’s intellectual property rights, Licensor may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) terminate immediately this Agreement and refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of Licensor and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Licensor under this Agreement.
8.2 Indemnification by Licensee. Licensee will indemnify and hold harmless Licensor against any claim, demand, loss, or damages (including attorney fees and costs) arising out of or related to (a) Licensee’s data, (b) the Licensee’s or its Authorized Users use of the Software, or (c) Licensee’s breach of the Agreement.
8.3 Indemnification Procedure. The party seeking indemnification must notify promptly the party providing indemnification of the claim, give the party providing indemnification sole control of the defense and related settlement negotiations, and the party seeking indemnification must provide the party providing indemnification with reasonable assistance and information, but no cost or expense shall be incurred for the account of the party seeking indemnification without its prior written consent.
9. DISCLAIMER OF WARRANTIES
9.1 The app is provided “as is” and without warranty of any kind, express or implied.
9.2 All express or implied conditions, representations, and warranties, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, are disclaimed, except to the extent that these disclaimers are held to be legally invalid. You assume responsibility for selecting the app to achieve your intended results, and for the installation of, use of, and results obtained from the app or information made available via the app. Without limiting the foregoing provisions, we make no warranty that the app will be error-free or free from interruptions or other failures or that the app will meet your requirements.
10. LIMITATION OF LIABILITY
10.1 Licensor is not liable for (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; (b) the cost of procurement of substitute goods, technology or services; or (c) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if Licensor has been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Software.
10.2 The maximum liability of Licensor under this Agreement shall not exceed three times the Fees actually paid by the Licensee for the Software during the past twelve months.
10.3 The limitations and exclusions in this Section apply to the maximum extent permitted by law.
11. LICENSEE PUBLICITY RIGHTS
During the term of this Agreement, Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email to [email protected] and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.
12. IMPROVING LICENSOR’S PRODUCT
Licensor is always striving to improve its products. In order to do so, Licensor needs to collect information about its users and to measure, analyze, and aggregate how its users interact with its products, such as usage patterns and characteristics of its user base. Licensor collects such information and uses the information as per its Privacy Notice.
13. EXPORT RESTRICTIONS
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorization. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
14. GOVERNING LAW, VENUE, AND EXCLUSIONS
14.1 Governing Law and Venue. Any disputes or claims arising out of or in connection with the subject matter or formation (including non-contractual disputes or claims) of the Agreement are governed by and construed in accordance with the laws of Brazil, and the Brazilians Courts shall be the competent courts of jurisdiction.
14.2 Exception from Jurisdiction. Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, the injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g., local courts at the Licensee place of residence).
14.3 Exclusion of UN Convention. The United Nations Convention on Contracts for the Sale of Goods does not apply.
15. GENERAL PROVISIONS
15.1 Entire Agreement. This Agreement (and any addendum or amendment to it which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and it supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this Agreement.
15.2 We reserve the right, at any time and at our sole discretion: (a) to modify or revise this Agreement, (b) to update or modify documentation, (c) to make changes, update or discontinue our Apps or any of their features and functionality at any time, and (d) to terminate or restrict access to the App.
15.3 Notices. All notices to Licensor will be sent to [email protected]. All notices to Licensee will be sent to the physical address or the email address provided by the Licensee upon Purchase of the Software. Notices sent by mail shall be sent by certified mail or overnight courier and will be considered received upon receipt. Notices sent by electronic mail will be received upon confirmed receipt by the recipient.
15.4 Waiver. Any waiver by Licensor of any default shall not constitute a waiver of any subsequent default. Moreover, any waiver by Licensor must be in writing.
15.5 Severability. If any term of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
15.6 No Partnership. Nothing in the Agreement is intended to or shall be deemed to, establish any agency, partnership, or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
15.7 Interpretation. In this Agreement, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a party includes its personal representatives, successors or permitted assigns; (c) the headings in this Agreement are inserted for convenience only and shall not affect its construction; (d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; (e) a reference to one gender includes a reference to the other gender; (f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (g) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
15.8 Assignment. Licensee may assign this Agreement with Licensor’s prior written consent, which shall not be unreasonably withheld. Licensor may assign its rights and obligation under this Agreement without the consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.