1.1 Access to Services. Subject to the terms of this Agreement, Minim, Inc. (“Company”) will provide you (the “Company”) access to software services, including, but not limited to the Minim Agent, Minim Web Application, Minim Mobile Application and Minim Cloud Service as are more specifically defined in Exhibit A (the “Services”) in quantities set forth in an order or other such similar request for services (an “Order”) for use by the Company or Company’s end users (“Subscribers”).
1.2 Creation of Accounts. In order for Customer and Customer’s Subscribers to use the Service, Customer must register via the Minim Web Application and establish appropriate administrative username(s) and password(s) for Customer’s account. In order to register or use the Minim Web Application, Customer and its employees may be required to agree to certain other and further terms and conditions relating to the use of the Minim Web Application.
1.4 Support. Subject to the terms hereof, Company will provide Customer, but not Subscribers, with technical support in accordance with the Support Terms attached hereto as Exhibit B.
2.1 Grant of License. With respect to any Software that is distributed or provided to Customer for use on Customer devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Use Restrictions.
2.2.1 Customer shall restrict the use of the Minim Web Application to certain of Customer’s employees (“Authorized Web Application Users”) and restrict the use of the Minim Mobile Application to Customer’s Employees and Subscribers (“Authorized Mobile Application Users”) (collectively, “Authorized Users”). Customer shall neither cause nor allow anyone but Authorized Web Application Users to the Minim Web Application. Customer shall neither cause nor allow anyone but Authorized Mobile Application Users access to the Minim Mobile Application. Customer shall provide Company prompt notice of any unauthorized access or use of the Services. Customer shall be responsible for the Authorized Users’ compliance with this Agreement and any other applicable agreements. Customer shall be responsible for the inactions and inactions of Authorized Users (or any individuals using the login information of any Authorized User) relating to the Services or this Agreement.
2.2.2 Customer will neither cause nor allow, directly or indirectly, anyone to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services) or otherwise use Services for the benefit of a third party (other than its Subscribers); or remove any proprietary notices or labels.
2.2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations.
2.2.4 Unless expressly agreed to in writing by Company, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.2.5 Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Indemnity. Customer hereby agrees to indemnify and hold harmless Company against any and all damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Agreement or otherwise from Customer’s or Subscribers use or misuse of the Services.
2.4 Promotion and Non-Disparagement. During the Term Customer shall use its best efforts to promote the Services to Subscribers and potential Subscribers. Such promotion shall be conducted in a manner that reflects favorably upon Company and is in compliance with all applicable laws and regulations. During and after the Term, Customer shall act in good faith in its communications with Subscribers and potential Subscribers regarding Company and/or the Services and shall refrain from making any statements or references, either directly or indirectly, that disparage, depreciate, ridicule, deprecate, condemn, criticize, or malign the Service or any product or service of Company. Customer agrees to cooperate and assist Company in bringing any action against any Subscriber for any activity in violation of the Subscriber Terms.
2.7 Use of Marks. Subject to the terms of this Agreement, Company hereby grants to Customer a non-exclusive and non-transferable license to use and display Company’s trademarks, service marks, and logos (“Company Trademarks”), solely for purposes of promoting the Services to Subscribers during the Term as set forth above. All goodwill resulting from Customer’s use of the Company Trademarks shall inure to the benefit of Company. If Company determines that Customer is using or displaying any Company Trademark(s) in a manner that is or may be detrimental to Company’s interest, Company may issue reasonable instructions to Customer concerning the manner, if any, in which Customer may continue to use such Company Trademark. Customer shall promptly comply with such instructions or cease the use or display of such Company Trademark. Except as set forth herein, Company reserves all right, title and interest in the Company Trademarks.
2.8 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, WiFi routers or gateways that are designed or customized to work with the Services (collectively, “Equipment ”). Customer may, at its election, order Equipment from Minim. Such purchases shall be subject to the terms set forth in Exhibit C.
2.9 Security. Customer shall also be responsible for maintaining the security of the Equipment, Customer accounts, Customer passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. As between Minim and Customer, Customer shall be responsible for Subscriber accounts, Customer and Subscriber Passwords and for all uses of the Services by Subscriber, with or without Customer’s knowledge or consent.
3.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information (except and unless it has been obfuscated and/or anonymized and in such case only to enhance and further develop the Services). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Privacy and Data.
3.2.1 As between Company and Customer, Customer shall own all right, title and interest in and to the Customer Data.
3.2.2 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) use and disclose such data (including the Customer Data) in aggregate or other de-identified form in connection with its business. Company’s rights to use any data provided by or otherwise obtained from any Subscriber shall be as set forth in the Subscriber Terms.
3.2.3 Customer shall have sole and complete responsibility to provide any notices and acquire any consents from Subscribers necessary to ensure that the Services are provided to Subscribers in accordance with all applicable privacy laws and regulations.
3.2.4 Company shall make commercially reasonable efforts to support Customer as it seeks to comply with applicable privacy laws and regulations.
3.3. Improvements and Feedback. Company shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection support, and (c) all intellectual property rights related to any of the foregoing. To the extent Customer provides suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Services, (i) Company will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, (ii) Company will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit the Feedback in connection with its products and services, and (iii) Company will solely own any inventions, improvements, technology, software, applications, and developments arising therefrom, and all intellectual property rights relating thereto.
4.1 Fees. Customer will pay Company the fees described in the Order for the Services in accordance with the terms therein (the “Fees”). If no terms are specified in the Order, than Fees shall be due upon receipt of or access to the Services. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time by providing notice of such changes on its website or via email to the email account used by Customer to manage its use of the Services. Such new fees or changes shall come into effect upon the renewal of any Order made hereunder.
4.1 Right to Dispute. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than fifteen (15) days after it has been invoiced and or charged the amount at issue. Inquiries relating to such a dispute should be directed to Company’s customer support department.
4.2 Late Payments. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.3 Taxes. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5.1 Initial and Renewal Terms. This Agreement shall commence on the date on which Customer accepts its terms (the “Effective Date” and run for one (1) year (the “Initial Term”) therefrom. This agreement shall renew for additional one (1) year terms (each a ‘Renewal Term’) until the later of (i) termination by Minimum or Customer or (ii) the expiration of any Order for Services made hereunder.
5.2 Termination for Convenience. Customer may terminate this agreement and any order made hereunder at any time upon written notice to Minim. Upon any such termination, Customer shall immediately pay any amounts due under any Order made pursuant to this Agreement.
5.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party in the event the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
5.3 Post Termination Obligations. Upon Termination, Company shall have no new or remaining obligations with respect to Customer or its Subscribers relating to the Services or Equipment or any computer hardware on which the Services operated, including, but not limited to removal, disposal, maintenance or support. Upon Termination, the Parties shall use good faith efforts to coordinate communications with Subscribers regarding the termination of the Services.
5.4 Trial Order & Trial Period. On or about the Effective Date, Customer may elect to place an Order for the Services solely for the testing purposes (a “Trial Order”). Notwithstanding anything else in this Agreement to the contrary, during the period specified of the Trial Order (the “Trial Period”), the following shall apply: (a) Customer’s use of the Services shall be restricted to non-productive evaluation use; (b) Customer will not owe Company any fees for the Services, other than any such fee set forth on the Trial Order; (c) the Services will be provided on an AS-IS, WHERE-IS basis and no warranty obligations or support obligations of Company will apply (although Company may, at its sole discretion, provide support), and (d) either Party may terminate a Trial Order during the Trial Period for any reason by providing written notice at least ten (10) days prior to the end of the Trial Period. In the case of a termination during the Trial Period, Minim shall not be obligated to issue any refunds to Customer of any amounts paid by Customer to Minim.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing on its website or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
8.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
8.3 Integration. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both Parties, except as otherwise provided herein.
8.4 Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
8.5. Disincentive to Litigate. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
8.6 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
8.7 Change to Terms. Company reserves the right, in its sole discretion, to update and change these terms from time to time. Such new terms shall go into effect upon upon the earlier of (i) next Renewal Term or the renewal of any Order placed hereunder.
8.8 Governing Law. This Agreement shall be governed by the laws of the State of Delaware. Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
8.9 Survival. Those provisions that by their nature are intended to survive termination of this Agreement shall so survive, including, but not necessarily limited to Sections: 2.3 (Indemnity), 2.4 (Non-Disparagement), 3 (Confidentiality, Information, Improvements), 4 (Payment of Fees), 5.3 (Post Termination Obligations), 7 (Warranty, Disclaimer), 8 (Limitation of Liability) and 9 (Miscellaneous).
The Services shall consist of some or all of the following software programs:
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00am through 5:00pm Eastern time, with the exclusion of United States Federal Holidays (“ Support Hours ”).
Customer may initiate a help desk ticket during Support Hours by emailing email@example.com.
Company will use commercially reasonable efforts to respond to all Help desk tickets within one (1) business day.
For the avoidance of doubt, Company does not provide support directly to Subscribers.
Customer may purchase Equipment from Minim under the following terms.