Mindity End User License Agreement
IMPORTANT – PLEASE READ CAREFULLY
Before reading the articles below, please note the following preliminary
terms, which use some of the definitions specified in Article 1 below:
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR
A SINGLE ENTITY) AND MINDITY ("MINDITY"). THE EXECUTABLE VERSIONS OF THE
MINDITY SOFTWARE IS REFERRED TO HEREIN AS THE "MINDITY." THIS MINDITY
END USER LICENSE AGREEMENT (THE "AGREEMENT") GOVERNS USE OF THE BROWSER
AND ANY RELATED WEB SERVICES PROVIDED BY MINDITY OR ITS AFFILIATES IN
CONNECTION WITH THE BROWSER. BY CLICKING "I AGREE," OR BY DOWNLOADING,
INSTALLING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS
AGREEMENT, YOU AGREE TO RECEIVE NOTICES FROM MINDITY ELECTRONICALLY, YOU
AGREE TO THE PRIVACY PRACTICES DISCLOSED BELOW, AND YOU CONSENT TO
JURISDICTION FOR ANY DISPUTE. YOU ACKNOWLEDGE THAT MINDITY OFFERS THE
SOFTWARE WITHOUT WARRANTIES AND THAT YOUR REMEDIES ARE LIMITED. IF YOU
DO NOT AGREE TO THIS AGREEMENT CLICK "EXIT" AND DO NOT INSTALL OR USE
THE SOFTWARE. IF A MINDITY END-USER LICENSE AGREEMENT IS PRESENTED FOR
ACCEPTANCE ON THE DOWNLOAD SITE AND IN THE INSTALLER, AND THE TERMS
VARY, THE TERMS OF THE AGREEMENT PRESENTED ON THE DOWNLOAD SITE SHALL
PREVAIL.
License and Restrictions
1. License.
Subject to the terms of this Agreement, Mindity hereby grants You a
limited, personal, non-commercial, non-exclusive, non-sublicensable,
non-assignable, free of charge license to download, install and use the
Mindity Software on Your computer, phone or PDA for the sole purpose of
personally using the internet communication applications provided by Mindity and any other applications that may be explicitly provided by
Mindity. For the avoidance of doubt, You are allowed to use Mindity
Software at work, in accordance with the terms of this Agreement.
2. No Granting of Rights to Third Parties.
You will not sell, assign, rent, lease, distribute, export, import, act
as an intermediary or provider, or otherwise grant rights to third
parties with regard to the Mindity Software or any part thereof.
3. No Modifications.
You will not undertake, cause, permit or authorize the modification,
creation of derivative works, translation, reverse engineering,
decompiling, disassembling or hacking of the Mindity Software or any part thereof.
4. Third Parties.
You acknowledge and agree that the Mindity Software may be incorporated
into, and may incorporate itself, software and other technology owned
and controlled by third parties. Any such third party software or
technology that is incorporated in the Mindity Software falls under the
scope of this Agreement. Any and all other third party software or
technology that may be distributed together with the Mindity Software
will be subject to you explicitly accepting a license agreement with
that third party. You acknowledge and agree that you will not enter into
a contractual relationship with Mindity or its Affiliates regarding such
third party software or technology and you will look solely to the applicable third party and not to Mindity or its
Affiliates to enforce
any of your rights.
5. New Versions of the Mindity Software.
Mindity, in its sole discretion, reserves the right to add additional
features or functions, or to provide programming fixes, updates and
upgrades, to the Mindity Software. You acknowledge and agree that
Mindity has no obligation to make available to You any subsequent
versions of the Mindity Software. You also agree that you may have to
enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Mindity Software. Furthermore,
You acknowledge and agree that Mindity, in its sole
discretion, may modify or discontinue or suspend Your ability to use any
version of the Mindity Software, and/or disable any Mindity Software You
may already have accessed or installed without any notice to You, for
the repair, improvement, and/or upgrade of the underlying technology or
for any other justifiable reason, including but not limited to,
circumstances where You, at Mindity’s discretion, are in breach of this Agreement, creating problems,
possible legal liabilities, acting
inconsistently with the letter or spirit of our policies, or engaging in fraudulent, immoral or illegal activities, or for other
similar reasons.
Mindity will not accept any liability in relation to the direct or
indirect damages caused by (1) the release and/or the absence of release
of new versions of the Mindity Software and (2) by the suspension or termination of the
license or this Agreement by Mindity and/or by You.
6. Paid Services.
This Agreement applies to downloading, installing and using the Mindity
Software, free of charge. The use of any paid services which may be
offered by Mindity or its Affiliates, is subject to the additional Terms of Service that will be published
on the Mindity Website.
Definitions to License Restrictions and Additional Terms
7. Distribution of Mindity Software.
You are not allowed to distribute the Mindity Software under this Agreement.
8. Any other Exceptions.
If You are interested in doing anything else than permitted under this
Agreement or by the Distribution Terms or Mindity Terms of Use, You will
have to explicitly agree upon any further (commercial) terms.
9. Mindity Promotional Materials.
Nothing in this Agreement will give You any right to use the Mindity Promotional
Materials.
Utilization of Your computer
10. Utilization of Your computer.
You hereby acknowledge that the Mindity Software may utilize the
processor and bandwidth of the computer (or other applicable device) You
are utilizing, for the limited purpose of facilitating the communication
between Mindity Software users and Mindity services.
11. Protection of Your computer (resources).
You understand that the Mindity Software will use its commercially
reasonable efforts to protect the privacy and integrity of the computer
resources (or other applicable device) You are utilizing and of Your
communication, however, You acknowledge and agree that Mindity cannot
give any warranties in this respect.
Confidentiality and Privacy
12. Confidential Information.
You agree to take all reasonable steps at all times to protect and keep
strictly confidential any confidential information regarding Mindity,
its Affiliates, the Mindity Staff, the Mindity Software and the IP Rights.
13. Your Confidential Information and Your Privacy.
Mindity is committed to respecting Your privacy and the confidentiality
of Your personal data. The “Privacy Policy” that is published on the Mindity Website at
http://www.mindity.com/Legal/Privacy applies to the
use of Your personal data, the traffic data as well as the content
contained in Your communication(s). We do not sell or rent Your personal
information to third parties for their marketing purposes without Your
explicit consent and we use Your information only as described in the
Privacy Policy. We store and process Your information on computers that
may be located outside Your country that are protected by physical as
well as technological security devices. You can access and modify the information You provide in accordance
with the Privacy Policy. If You
object to Your information being transferred or used in this way please do not use our services.
IP Rights
14. Exclusive Ownership.
You acknowledge and agree that any and all IP Rights to or arising from
the Mindity Software are and shall remain the exclusive property of
Mindity and/or its licensors. Nothing in this Agreement intends to
transfer any such IP Rights to, or to vest any such IP Rights in, You.
You are only entitled to the limited use of the IP Rights granted to You
in this Agreement. You will not take any action to jeopardize, limit or
interfere with the IP Rights. You acknowledge and agree that any
unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of
intellectual property laws, including without
limitation copyright laws and trademark laws. You acknowledge and
understand that all title and IP Rights in and to any third party content that is not contained in the Mindity Software, but may be
accessed through use of the Mindity Software, is the property of the
respective content owners and may be protected by applicable copyright
or other intellectual property laws and treaties.
You hereby release and covenant not to hold liable Mindity or its
Affiliates, or any of their licensees, assigns or successors, for any
and all damages, liabilities, causes of action, judgments or claims (a)
pertaining to any intellectual property You develop that is based on,
uses, or relates to the Mindity; and (b) which otherwise may arise in
connection with Your use of, reliance on, or reference to the Mindity.
As between You and Mindity, Mindity and its licensors retain the IP
Rights in and to the Mindity Software and any derivative works thereto
created by or for Mindity or its licensors.
15. No Removal of Notices.
You agree that You will not remove, obscure, make illegible or alter any
notices or indications of the IP Rights and/or Mindity’s rights and
ownership thereof, whether such notice or indications are affixed on,
contained in or otherwise connected to any materials.
Communication and Your Use of the Mindity Software
16. Communication.
Installing Mindity Software enables You to communicate with other Mindity Software
users.
17. No Warranties.
Mindity cannot guarantee that You will always be able to communicate
with Mindity Service or other Mindity Software users, nor can Mindity guarantee that You can
communicate without disruptions, delays or
communication-related flaws or that all Your communication shall always
be delivered to other Mindity Software users. Mindity will not be liable
for any such disruptions, delays or other omissions in any communication
experienced when using Mindity Software.
18. No Responsibility of Content.
You acknowledge and understand that the content of the communication
spread by the use of the Mindity Software is entirely the responsibility
of the person from whom such content originated. You, therefore, may be
exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable. Mindity will not be liable
for any type of communication spread by means of the Mindity Software.
19. Lawful purposes.
You acknowledge and agree to use the Mindity Software solely for lawful
purposes. In this respect You may not, without limitation (a) intercept
or monitor, damage or modify any communication which is not intended for
You, (b) use any type of spider, virus, worm, trojan-horse, time bomb or
any other codes or instructions that are designed to distort, delete,
damage or disassemble the Mindity Software or the communication, (c)
send any unsolicited commercial communication not permitted by
applicable law, or (d) expose any other user to material which is offensive, harmful to minors,
indecent or otherwise objectionable.
Term and (Consequences of) Termination
20. Term.
This Agreement will be effective as of the Effective Date and will
remain effective until terminated by either Mindity or You as set forth below.
21. Termination by Mindity.
Without limiting other remedies, Mindity may limit, suspend, or
terminate this license and Your use of Mindity Software, prohibit access
to Mindity Website and delete Your User Account and/or User ID, with
immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting
inconsistently
with the spirit of our policies, infringing someone else’s intellectual
property rights, engaging in fraudulent, immoral or illegal activities, or for other
similar reasons. Mindity shall effect such termination by
providing notice to You to the email address You have provided, and/or
by preventing Your access to the respective User Account. We reserve the
right to cancel User Accounts that have been inactive for more than one
(1) year.
22. Termination by You.
You may terminate this Agreement with immediate effect at any time, with
or without cause and without recourse to the courts, provided that You
will meet with the conditions as set forth in Article 23 below.
23. Consequences of Termination.
Upon termination of this Agreement, You (a) acknowledge and agree that
all licenses and rights to use the Mindity Software shall terminate, and
(b) will cease any and all use of the Mindity Software, and (c) will
remove the Mindity Software from all hard drives, networks and other
storage media and destroy all copies of the Mindity Software in Your
possession or under Your control.
24. No liability.
Mindity will not be liable in respect to any damage caused by the termination of
this Agreement.
Your Representations and Warranties; Indemnification of Mindity
25. Representations.
You represent and warrant that You are authorized to enter into this Agreement and
comply with its terms. Furthermore, You represent and
warrant that You will at any and all times meet with Your obligations
hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Mindity Software.
26. Indemnification.
You agree to indemnify, defend and hold Mindity, Affiliates and the
Mindity Staff harmless from and against any and all liability and costs,
including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your
(a) violation or breach of any
term of this Agreement or any applicable law or regulation, whether or
not referenced herein, or (b) violation of any rights of any third
party, or (c) use or misuse of the Mindity Software, or (d) communication spread by means
of the Mindity Software.
27. Export Restrictions.
You acknowledge that the Mindity Software may be subject to
international rules that govern the export of software. You agree to comply with all applicable international
and national laws that apply to
the Mindity Software as well as end-user, end-use and destination
restrictions issued by national governments.
Disclaimer of Warranties
28. No warranties.
THE MINDITY SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER;
MINDITY DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY
WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE MINDITY
SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY,
PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A
PARTICULAR PURPOSE. MINDITY FURTHER DOES NOT REPRESENT OR WARRANT THAT
THE MINDITY SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE,
UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL
OPERATE WITHOUT PACKET LOSS, NOR DOES MINDITY WARRANT ANY CONNECTION TO
OR TRANSMISSION FROM THE INTERNET MADE THROUGH THE MINDITY SOFTWARE.
29. Your own Risk.
You acknowledge and agree that the entire risk arising out of the use or
performance of the Mindity Software remains with You, to the maximum
extent permitted by law.
As some jurisdictions do not allow some of the exclusions or limitations as set
forth above, some of these exclusions or limitations may not apply to You. In such
event the liability will be limited as far as legally possible under the applicable
legislation.
Limitation of Liability
30. No Liability.
The Mindity Software is being provided to You free of charge.
ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT MINDITY, ITS AFFILIATES, ITS LICENSORS AND THE MINDITY STAFF WILL
HAVE NO LIABILITY IN CONNECTION
WITH OR ARISING FROM YOUR USE OF THE MINDITY SOFTWARE, AS SET FORTH BELOW.
31. Limitation of Liability.
IN NO EVENT SHALL MINDITY, ITS AFFILIATES, ITS LICENSORS OR THE MINDITY
STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING
WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR
PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE MINDITY
SOFTWARE, EVEN IF MINDITY, ITS AFFILIATES OR THE MINDITY STAFF HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
32. Remedy.
YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR
DISSATISFACTION WITH THE MINDITY SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH MINDITY SOFTWARE.
As some jurisdictions do not allow some of the exclusions or limitations as set
forth above, some of these exclusions or limitations may not apply to You. In such
event the liability will be limited as far as legally possible under the applicable
legislation.
General Provisions
33. New versions of the Agreement.
Mindity reserves the right to modify this Agreement at any time by providing such
revised Agreement to You or by publishing the revised
Agreement on the Mindity Website. The revised Agreement shall become
effective within thirty (30) days of such publishing or provision to
You, unless You expressly accept the revised Agreement earlier by
clicking on the accept button. The express acceptance by You, or Your
continued use of the Mindity Software after expiry of the notice period
of thirty (30) days, shall constitute Your acceptance to be bound by the
terms and conditions of the revised Agreement. You can find the latest version of this
Agreement at http://www.mindity.com/legal/eula.
Mindity reserves the right to make changes to this Agreement from time
to time.
34. Partial Invalidity.
Should any term or provision hereof be deemed invalid, void or
enforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and
effect.
35. No waiver.
The failure of Mindity at any time or times to require performance of
any provisions hereof shall in no manner affect its right at a later
time to enforce the same unless the same is explicitly waived in writing
and signed by Mindity.
36. No Assignment by You.
You are not allowed to assign this Agreement or any rights hereunder.
37. Assignment by Mindity.
Mindity is allowed at its sole discretion to assign this Agreement or
any rights hereunder to any Affiliate, without giving prior notice.
38. Applicable Law.
This Agreement shall be governed by and construed in accordance with the
laws of Germany without giving effect to any conflict of laws or
provisions whether contained in Germany law or the laws of your current
state or country of residence.
39. Competent Court.
Any legal proceedings arising out of or relating to this Agreement will
be subject to the jurisdiction of the courts of the district of Hamburg,
Germany.
40. Language.
The original English version of this Agreement may have been translated
into other languages. In the event of inconsistency or discrepancy between the English version
and any other language version of this
Agreement, the English language version shall prevail.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND
UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH
HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL
THE MINDITY SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND
CONDITIONS AND GRANT TO MINDITY THE RIGHTS SET FORTH HEREIN.
This End User License Agreement is effective as of July 1, 2007
© Mindity 2007