May 24, 2018 / Last updated
These Terms of Service (the “Terms”), together with any documents expressly incorporated into them, govern all access to and use by the users of the services provided through the website www.qmenta.com (the “Site”), property of Mint Labs, Inc., a Delaware corporation, with offices at 241 A Street Suite 300, 02210 Boston, MA, United States, d/b/a QMENTA and its subsidiaries (the “Company” or “QMENTA”). For the purposes of these Terms the users of the services will be referred to as the “Subscriber”, and “Services” mean any software as a service (SaaS) or platform as a service (PaaS) and other items provided through the Site, including (1) the QMENTA services and tools; (2) the QMENTA application programming interface (the “API”); and (3) the QMENTA Apps (available at https://www.qmenta.com/qmenta-app/ as well as any third-party software, if applicable (the “Apps”).
These Terms may be accepted by (1) Subscriber clicking a box indicating acceptance; (2) Subscriber and the Company fully executing a separate document that incorporates these Terms; or (3) Subscriber accessing or using the Services. If Subscriber is accepting on behalf of another person or entity, then Subscriber represents and warrants that has the capacity to bind that person or entity.
- Use of the Site
When using the Site, you must always comply with Company´s Privacy, Cookies Policy and all applicable laws of your jurisdiction. Do not use the Site to advertise or market any third-party products, services, solutions, or technologies. If you infringe these Terms, your access to the Site may be terminated immediately and without previous notice.
2.1. Subscriber(s) may subscribe to Services under these Terms by placing the corresponding order form with the Company, specifying the Services contracted, the applicable fees and the billing period (“Orders”). When Subscriber creates the first Order, the Company will provide a login account and Subscriber must create his own password in order to access and use the Services. Subscriber agrees that any information provided in creating his login account is complete and accurate, and will be updated from time to time.
2.2. In these terms of service, the data or information submitted by Subscriber into our system, as well as the data about its use and configuration of the Services, are called “Data.”
2.3. Subscriber hereby grants to Company the right to collect the anonymized Data in order to enable us improve the content of the Site and Services, as well as the right to access Data for support and/or maintenance purposes.
- Fees and Payment
Subscriber will pay the Fees set forth in the relevant Order. The Company will submit to Subscriber an invoice for Services to be performed monthly or annually in advance. All past due amounts will be subject to a finance charge equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permissible under applicable law. Additionally, the Company reserves the right to suspend access to and use of the Services, without notice, if any fees are more than thirty (30) days past due.
- Services License
- Software License
The Company grants Subscriber a limited, revocable, non-exclusive, non-transferable, non-sublicensable, limited right, to i) download and use the software to upload Data through the Site and ii) access and use the Site and Services only for its internal purposes. These Terms do not give Subscriber the right to use the Site or Services in order to provide services to any third party.
Subscriber may use the Services in accordance with these Terms and applicable laws and regulations. Subscriber shall not, and shall not allow any third party to: i) sell, license, assign, or transfer the Services, decompile, disassemble, or reverse engineer the Services or copy the Services, except as expressly permitted by the Company; and ii) Subscriber shall not alter or duplicate any aspect of the Services, except as expressly permitted by the Company. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Site and Services.
- API License
The Company grants Subscriber a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license, during the term of this agreement, to access our API to manage its data.
Subscriber guarantees that the use of the API and his Software i) will not contain any virus, malware, or spyware; ii) will not affect the integrity of the Services, iii) will not infringe the terms of these Terms or any applicable law or regulation.
The Company reserves the right to control the use of the API and Subscriber´s Software to verify its fulfillment with these Terms. The Company has no responsibility for any use or misuse of the Data obtained through our API.
- Third – Parties Apps and tools
The Site may contain links to third party tools or sites related to the Services, including Apps. Such third-party´s products or services are provided “AS IS” and the Company makes no representation, warranty or promise regarding its performance, usability or fitness for a particular purpose, whether or not such products or services are provided on the Site. Subscriber is solely responsible for review and abide to the applicable terms, including privacy, data policies and End-User License Agreement (EULA). Subscriber acknowledges that the Company may allow those third-parties to access Data as required for interoperability purposes and is not liable for any alteration, deletion or disclosure of Data by such third-parties.
- Availability, Storage and Security
5.1 Availability. The Company agrees to provide the Services available to Subscriber in accordance with the Service Level Agreement (SLA), which shall be provided, when applicable, as a separate document.
5.2. Storage and Security. The Company shall maintain the corresponding technical and physical safeguards for protection of the security, confidentiality and integrity of your data that are consistent with industry standards for services similar to the Services, including data encryption while in transit and storage.
- Intellectual Property Rights (“IP Rights”)
“IP Rights” means all current and future worldwide intellectual property rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
The Company owns all IP Rights in the Site, the Services (including the API and Apps), trademarks, and data. Subscriber owns all IP Rights on his own developments using Company´s API. Company Proprietary IP Rights shall remain the sole and exclusive property of Company and shall be considered and treated as Confidential Information. The Company grants to Subscriber a non-exclusive, non- transferable license to use Company Proprietary IP that is embedded in the software, if any. Except as permitted under these Terms, Subscriber shall not have the right to assign or sublicense the rights in the Company Proprietary IP granted under this Section. The Software may contain open source software, subject to separate license terms.
Furthermore, regarding any data or files which you may use, display, upload or by any other mean provide to the Site in connection to the Services, you shall retain full ownership over such data or files and you hereby grant the Company a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of these data or files to facilitate the ordinary use of the Services, including, but not limited to, provide scientific or technical support.
All data or files used, displayed, uploaded or by any other mean provided to the Site in connection to the Services shall contain only aggregated and anonymized data. It is the responsibility of Subscriber to verify that no personal data, which may lead to the identification of a natural person, is used, displayed, uploaded or by any other mean provided to the Site in connection to the Services.
Subscriber shall be the owner of any information used, displayed, uploaded or by any other mean provided to the Site in connection to the Services, as well as responsible for seeking and verifying that all permits, waivers or authorizations from third parties, should Subscriber not be the owner, regarding their intellectual property (including, but not limited to, copyrights, trademarks, designs, utility models and trade secrets), as well data protection rights, and thus shall be held solely liable and hold the Company harmless should any action, suit or any other claim is brought against Subscriber or the Company, in or out of Court, for the breach of any such intellectual property rights or data protection rights.
The Company is a strong believer in the value of intellectual property and, as such, will review any copyright infringement notice which is submitted in accordance with the Digital Millennium Copyright Act (“DMCA”). Should you detect a misuse of your copyright in our platform, please send us all the relevant information to email@example.com.
- Confidential Information
“Confidential Information” means any and all non-public, commercially proprietary or sensitive information or materials belonging to, concerning, in the possession of or provided by a Disclosing Party regardless of the manner in which furnished. Confidential Information shall be held by the Receiving Party in trust, and solely for the benefit of, the Disclosing Party. Both Parties agree that, except as required in the performance of its obligations and as permitted by the Disclosing Party, Receiving Party shall not publish, reproduce, disclose, or make any use of any such Confidential Information.
Unless requested to do so by Subscriber, Company will not collect or retain for its own purposes any Subscriber Confidential Information regarding end users who access the server as contemplated under this Agreement. Company may monitor use of the Services and gather general statistical information about use of the Services.
- Data Protection and Privacy
Either Party may terminate these Terms for any reason upon ninety (90) days written notice.
- Termination for Breach. Either Party may terminate this Agreement, or an individual Order, for breach of these Terms upon written notice if the defaulting party fails to cure such breach within thirty (30) days of its receipt of written notice identifying such breach by the non-defaulting Party. Non-payment of any service or other fees due will be considered a material breach.
- This Agreement, or any Order hereunder, may be immediately terminated upon written notice at either Party’s option if a Party: (i) is dissolved; (ii) is the subject of a petition filed in bankruptcy; (iii) is adjudicated bankrupt or insolvent; (iv) makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy Law; or (v) if a receiver is appointed.
- Effect of Termination. An individual Order will terminate in accordance with the terms therein. If the Parties agree to terminate for reasons other than breach and an Order is still in effect at the time of termination, then these Terms shall continue to govern the outstanding Order until its termination or expiration.
Upon termination of these Terms or any Order, Subscriber shall have no rights to continue using the Services and shall pay only those fees owed in respect to the Services actually performed or access to Services furnished through the effective expiration or termination date of the Agreement or applicable Order.
- Any provision of these Terms expressly, by implication, or necessity, contemplates performance or observance subsequent to the termination of will survive termination of the Agreement, and continue in full force and effect.
- Each Party (“Indemnifying Party”) shall indemnify, hold harmless and defend the other Party (“Indemnified Party”) from and against all claims, damages and expenses arising from or related to: (i) any claim that exercise of the Indemnified Party’s rights under these Terms infringe any intellectual property right of a third person; (ii) any claim the Indemnifying Party’s performance of Services herein infringes any intellectual property right of a third person; (iii) any breach by the Indemnifying Party of its warranties, representations or obligations herein.
- The Company shall indemnify, defend and hold Subscriber, its Affiliates and employees, harmless from any claims, damages and expenses, based on any claim that the provision to or use by Subscriber of any of the Services, infringes on any intellectual property or contract rights of any person or entity.
- Duties Pertaining to Indemnification. The Indemnified Party shall promptly provide to the Indemnifying Party with notice of any claim that the notifying Party believes relevant according to this Section. The Indemnified Party’s failure to provide such prompt notice shall not limit its rights under this Section, except when the Indemnifying Party is actually prejudiced by the Indemnified Party’s failure to provide it. The Indemnifying Party shall have the right to control the defense and, if applicable, settlement of such claim, provided that in defending or settling such claim, the Indemnifying Party shall not prejudice the rights or disclose the Confidential Information of the Indemnified Party. Further, the Company shall not agree to any settlement of any claim related to Subscriber Data and/or the obligations, warranties and representations herein without the written consent of Subscriber, which consent shall not be unreasonably withheld. The Indemnified Party shall have the right to participate in the defense of any claims at its sole expense.
- No Other Warranties; Limitation of Liability. EXCEPT AS OTHERWISE ESTABLISHED IN THESE TERMS OR IN AN ORDER, THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
In no event, shall either Party be liable to the other Party for any special, consequential, or incidental damages, whether for breach of warranty, breach of contract, repudiation of contract, termination, negligence, or otherwise, even if it shall have been advised of the possibility of such damages.
In no event, shall the liability of either Party to the other Party under this Agreement exceed the greater of (i) the total amount of the Fees paid by Subscriber to Company under the applicable Order in the three (3) month period immediately preceding the event that gave rise to the liability and (ii) [Fifty Thousand Dollars ($50,000)].
WITHOUT LIMITATING THE GENERALITY OF THE FOREGOING, SUBSCRIBER AGREES THAT WE ARE PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST HIM ON HIS OWN RESEARCH AND THAT SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE DECISIONS MADE BASED ON USE OF THE SITE AND SERVICES OR ANY EFFECTS THAT MAY RESULT FROM SUCH USE AND THE COMPANY ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND RELATED TO THIS MATTER. WE MAKE NO WARRANTIES TO ANY THIRD PARTY. WE WILL NOT BE LIABLE FOR ANY DEFICIENCY IN PERFORMING UNDER THIS AGREEMENT IF SUCH DEFICIENCY RESULTS FROM SUBSCRIBER FAILURE TO PROVIDE COMPLETE AND ACCURATE INFORMATION OR OTHER COOPERATION REASONABLY NECESSARY FOR OUR PERFORMANCE HEREUNDER (INCLUDING WITHOUT LIMITATION THE PROVISION OF DATA).
10.1. Governing Law. These Terms shall be governed and interpreted in accordance with the Laws of the Commonwealth of Massachusetts without regard to principles of conflict of Laws. The Parties agree to submit to the non-exclusive jurisdiction over all disputes hereunder of the federal and state courts in the Commonwealth of Massachusetts.
10.2 No Waiver and Severability. If any provision of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of them. The failure of either Party to partially or fully exercise any right shall not prevent the subsequent exercise of such right. The waiver by either party of any breach shall not be deemed a waiver of any subsequent breach of the same or any other term.
10.3 Notices. Any notice required to be given pursuant to these Terms shall be in writing and shall be deemed duly given either: (a) two (2) days after the date of mailing if sent by registered or certified mail, return receipt requested; or (b) one (1) day after the date of mailing if sent by a national overnight courier service; or (c) the date of sending by email transmission to the email address set forth below or to a concurrently used email address provided by the party receiving notice.
Mint Labs, Inc., d/b/a QMENTA
C/ Roger de Llúria 46, Pral. 1ª 08009 Barcelona, Spain
Attn: Vesna Prchkovska, COO
Email Address: firstname.lastname@example.org
Business Number: +34 933 282 007
10.4 Entire Agreement. This Agreement, including the Schedules and Exhibits hereto, sets forth the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreements between the Parties concerning the subject matter. No amendment or modification of these Terms shall be made except by a writing signed by the Party to be bound thereby.
10.5 System Limits. To maintain the performance, health and availability of the Services, your use of the Services may be subject to system limits. System limits are not published and are designed to ensure that no code or processes can monopolize resources and negatively impact the Services. If a limit is reached, an error may be issued.
10.6 Non-exclusivity. Agreement shall not be deemed to create an exclusive relationship between Subscriber and the Company. Subscriber shall be entitled to use other parties to perform the Software as a Service and Platform as a Services covered hereby.
10.7 Relationship of the Parties. The relationship between the Parties shall be that of an independent contractor. Nothing herein shall be construed as creating or constituting the relationship of employer/employee, franchisor/franchisee, principal/agent, partnership, or joint venture between the Parties.
10.8 Force Majeure. Neither party will be liable under this agreement because of any failure or delay in the performance of its obligations due to force majeure causes such us riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.
10.9 Electronic Signature. These Terms be accepted through a valid electronic signature. The Parties agree that such signature shall be deemed fully equivalent to a manual or handwritten signature (without requiring any further validation nor verification by any third party) and, upon being stamped, these Terms shall be rendered as fully binding and enforceable between the Parties.