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Minit j.s.a. - END USER LICENCE AGREEMENT
PLEASE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE MINIT PRODUCT– PROCESS MINING.
This Agreement is a licence agreement between Minit j.s.a., with its registered seat at Košická 56, 821 08 Bratislava, Slovak Republic, Identification No.: 51 042 487, registered in the Commercial Register of the District court Bratislava I, section: Sja, File No. 20/B (“Licensor”) and you as a legal entity (“End User”). The Agreement sets out the conditions under which End User is entitled to use the Minit Product.
THIS IS NOT A PURCHASE AGREEMENT BUT A LICENCE AGREEMENT WITH THE END USER. The Licensor continues to own the Minit Product and its copies used by End User pursuant to this Agreement.
YOU AGREE THAT BY CLICKING THE “ACCEPT” BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1 AGREEMENT STRUCTURE AND TABLE OF CONTENT
Section A (Article 2) provides for definitions.
Section B (Articles 3 - 4) regulates a Delivery and Installation.
Section C (Articles 5 – 8) provides for conditions related to Licence.
Section D (Articles 9 – 10) provides for conditions related to Support Services.
Section E (Articles 11 – 20) provides for general conditions that are related to both, Licence and Support Services.
SECTION A - Definitions
2 Definitions‘Agreement’ means this End User Licence Agreement and any Order(s) between the Licensor and the End User for the provision of the Minit Product or Support Services.
‘Applicable Law‘ means
(a) any and all Applicable Laws, statutes, regulations, by-laws, codes, orders, ordinances, rules, treaties, and any and all orders or judgments of a court or tribunal having jurisdiction, and
(b) any and all applicable official rules, regulations, directives, orders, requirements, policies, guidelines and standards of each competent authority,
that are in existence or come into existence, as the same may be amended, re-enacted, consolidated and/or replaced, from time to time, and any successor to any of the foregoing.
‘Authorized User’ means the End User including End User's employee and/or auxiliary person (hulppersoon) of the End User authorized by the End User to have access and use the Minit Product within the scope of Licence granted by the Licensor under this Agreement.
‘Civil Code’ means the Dutch Civil Code.
‘Confidential Information’ means information that shall be kept confidential as stipulated in Article 14 hereof.
‘Copyright Act’ means the Dutch Copyright Act (Auteurswet) or any local equivalent thereof.
‘Consulting Licence’ means the Licence authorizing the End User to use the Minit Product for its own internal use and also in provision of consultation services to its clients. End User must secure that its clients cannot access the Minit Product in any way. For the avoidance of doubts, End User shall be entitled to present results generated by Minit Product to its clients.
‘Business Day’ means any day other than a weekend or a public holiday in the Slovak Republic and the country of End User’s incorporation.
‘Data Processing Agreement’ means a legally binding agreement, entered into between the Licensor and the End User, which regulates the particularities of data processing such as its scope and purpose as well as the relationship between the Licensor and the End User.
‘Data Protection Laws’ mean the GDPR, the Implementation GDPR act (Uitvoeringswet AVG) and, to the extent applicable, the data protection or privacy laws of any other country.
‘Device’ means any hardware device owned, leased, used or controlled by the End User and agreed between the Licensor and the End User as the device on which the Minit Product is installed or is supposed to be installed.
‘Documentation’ means the main characteristics and functionalities of the Minit Product which are specified in Annex 1 hereof.
‘Effective Date’ means the date when the End User accepts the terms of this Agreement by clicking on the “Accept” or similar button when installing the Minit Product.
‘Fees’ means total of the Full Licence Fee and/or other fees according to the Agreement.
‘First Level Support’ means ability to provide general post-sales Minit Product information; hardware and software configuration; deal with the Maintenance; collect relevant technical problem identification information; perform base problem determination; provide basic support on the standard protocols and features plus the ability to resolve the majority of misconfigurations, troubleshoot and simulate complex configuration, hardware, and software problems; support problem isolation and determination of Minit Product specification defects; provide lab simulation and interoperability and compatibility testing for new software and hardware releases; define an action plan; provide basic support on all protocols and features; have the ability to analyze traces, diagnose problems remotely, and provide steps to reproduce a certain problem
‘Full Licence’ means the Licence granted (i) after the payment of the Full Licence Fee to Licensor and (ii) for the period agreed in respective Order.
‘Full Licence Fee’ means the annual licence fee and the fee for the respective Support Services specified in the Order.
‘GDPR’ means REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
‘Intellectual Property Rights’ mean copyrights, trade and service marks, including the trademarks, trade names, rights in logos and get-up and trade dress, inventions, confidential information, trade secrets and know-how, registered designs, design rights, patents, utility models, semi-conductor topographies, domain names, all rights of whatsoever nature in computer software and data, all rights of privacy and all intangible rights and privileges of a nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration in respect of any of the same;
‘Licence’ means a licence granted by the Licensor to the End User to use the Minit Product.
‘Licence Key’ means a code consisting of numbers and/or letters generated by Minit to activate the Minit Product issued for specific Device identified by the Machine Key.
‘Machine Key’ means identification of the Device on which particular Minit Product shall be installed.
‘Maintenance’ means any update, upgrade, fix, new release or enhancement of the Minit Product.
‘Minit Product’ means any software product developed as a result of activities of Minit and used on the basis of granted licence rights; software product means, in particular, a computer program within the meaning of the Copyright Act created by Minit including any future Maintenance and/or upgrades thereof. The full list of Minit Products, functionality of Minit Products and technical requirements for installation, in the extent specified by Minit, is available at https://www.minit.io/minit-software-download.
‘On-boarding’ means a training (based on the number of Authorized Users) focused on introduction and handling the Minit Product with duration, participants and content specified individually in the Order.
‘Order’ means the End User’s binding offer to order particular Minit Product specified in the Order, where Licence terms and Fees are determined; including specific terms and conditions regarding the provision of Minit Product and specific services to be provided to the End User. The Order shall be executed by signing the standard Order form by the End User and by the Licensor.
‘Personal Data’ means any information relating to an identified or identifiable natural person.
‘Party’ or ‘Parties’ means the Licensor and the End User, individually and collectively, as the case may be.
‘POC’ means the proof of concept, i.e. the process throughout which the Licensor manifests selected features of the Minit Product; subject to agreement between the Parties, this process can be charged by the Licensor.
‘Second Level Support’ means the ability to provide First Level Support plus the ability to provide Minit Product enhancements such as patches and hotfixes, fixing or generating workarounds that address Minit Product bugs; troubleshoot bugs that were not diagnosed during First Level Support; work with the End User to resolve specific critical situations; and building action plans with End Users to address complex issues
‘SaaS’ means the deployment of the Minit Product on hardware controlled solely by the Licensor granting remote access to the Minit Product by End Users whereas End Users shall not receive the Licence Key or any other license to the Minit Product.
‘Support Services’ mean the provision of Maintenance and First Level Support and Second Level Support in relation to the Minit Product via telephone or e-mail; for the avoidance of doubt it excludes on premise support; the provision of Support Services is defined in the Maintenance and Service Support General Description available at https://www.minit.io/hubfs/Documents/EULA/minit-maintenance.pdf or under separate agreement.
‘Temporary Licence’ means a Licence granted for limited period, in principle for one month or longer period, prior to the payment of Fees;
‘Third-Party Software’ means the programs or components embedded in the Minit Product as provided under the Section 8.1 hereof.
‘Trial Licence’ means a licence granted to End User for the Trial Period in order to test and evaluate the Minit Product.
‘Trial Period’ means the period determined by the Licensor during which the End User may use the Minit Product based on the Trial Licence and free of charge.
‘User Documentation’ means user documentation related to Minit Product detailing the Minit Product provided by the Licensor, in particular installation guide and getting started guide that can be found at https://www.minit.io/minit-software-download.
SECTION B – Delivery and Installation
3 Trial Period
3.1 The End User may test the Minit Product during the Trial Period. The Licensor shall deliver the Minit Product trial version to the End User either to email address provided by the End User, through a licensing manager or by another manner agreed between Parties. Upon installation, the End User is issued a unique Machine Key. The End User shall be obliged to provide the Licensor with this Machine Key via e-mail without undue delay. The End User’s Device shall be identified based on the unique Machine Key provided by the End User and shall be associated with the Temporary Licence or Full Licence issued to End User. During the Trial Period, the Minit Product trial version shall have a limited functionality and the End User shall ensure that the Minit Product is accessible only by a limited number of temporary users as determined by the Licensor. There is only one Trial Period granted to one End User at the relevant time. Upon the request of the End User the Trial Period may be extended by the Licensor (i) either by additional time or (ii) by the number of analysed events. The Trial Period is optional.
3.2 After the Trial Period expires (if applicable), the Parties may agree that POC shall be provided, either free of charge or for remuneration. The provision of POC is optional and shall be agreed between the Licensor and the End User on ad hoc basis.
4 Order
4.1 After the Trial Period (if applicable), the Licensor shall submit a proposal to the End User via email. In case the End User confirms the proposal, the Licensor shall create and submit the Order form to the End User. By signing the End User accepts the Order and sends it back via email to the Licensor’s e-mail address set out in the Order form. The Order shall only be deemed to be accepted when the Licensor confirms to the End User that it accepts received Order by electronic mail or by other means.
4.2 After the acceptance of the Order, the Licensor issues the Temporary Licence together with the invoice for the Full Licence Fee and delivers both documents to End User via e-mail. Upon the payment of the Full Licence Fee prior to termination of Temporary Licence, the Licensor shall issue the Full Licence and deliver it to the End User. The Licensor will deliver the Minit Product to the End User either to email address provided by the End User, through a licensing manager or by other manner agreed between the Parties. In case the Full Licence Fee is not credited to the Licensor’s account within 5 days after the maturity of the relevant invoice, the Licensor will notify the End User that it is no longer entitled to use the Minit Product and that it must remove and delete all copies of the Minit Product in its possession.
SECTION C - Licence
5 Ownership
5.1 The Minit Product is the property of the Licensor. The title to, and all applicable rights, including Intellectual Property Rights and trade secrets vested in the Minit Product will remain sole and exclusive property of the Licensor.
6 Grant of Licence
6.1 Based on the End User’s request and upon Effective Date, the Licensor hereby grants to the End User a Trial Licence which represents a limited, worldwide, non-exclusive, revocable, non-transferable (with no right to sub-license) right to test the Minit Product for its internal evaluation purposes.
6.2 Upon payment of the Full Licence Fee within the maturity period, the Licensor hereby grants to the End User a Full Licence which represents worldwide, non-transferable (with no right to sub-license), revocable, non-exclusive right to use the Minit Product for its own internal use or consultation purposes as specified in the Order and for the term specified in the Order.
6.3 Prior to the payment of the Full Licence Fee, the Licensor grants to the End User the Temporary Licence which represents worldwide, non-transferable (with no right to sub-license), revocable, non-exclusive right to use the Minit Product for its own internal use or consultation purposes as specified in the Order.
6.4 The End User may (i) install the Minit Product on the Devices unless otherwise approved by the Licensor or remotely access the Minit Product in case of SaaS deployment, (ii) use the Minit Product only for a purpose or in a manner for which the Minit Product was designed and licensed to End User, (iii) use the Minit Product under the Full Licence on single Device if the Minit Product runs as standalone, (iv) allow Authorized Users to use the Minit Product only for a purpose or in a manner for which the Minit Product was designed and licensed to End User, and (v) use the Minit Product for internal, and not for commercial purposes. The End User undertakes to inform the Licensor without undue delay about the change of Device’s ownership.
6.5 The End User shall ensure that the maximum number of Authorized Users accessing and using the Minit Product concurrently corresponds to the number of Full Licences granted and paid for to the Licensor in accordance with the relevant Order.
6.6 Except as otherwise stated in the Agreement, the End User is expressly forbidden to use the Minit Product causing or permitting (i) disclosure, display, access, or use of the Minit Product by anyone other than an Authorized User and (ii) the loan, publication, transfer of possession (whether by sale, exchange, gift, operation of law or otherwise), sublicensing, rental, or other dissemination or use of the Minit Product, in whole or in part, to or for any third party. The End User must not (except as expressly required by law) reverse engineer, decompile, translate, disassemble, or otherwise attempt to discover the source code of the Minit Product as it contains trade secrets. The End User must not produce illegal copies of the Minit Product.
6.7 The End User acknowledges that self-standing results acquired from use of the Minit Product might need further expert interpretation and additional consulting to be provided by the third parties.
7 Warranty related to the Licence
7.1 The Licensor shall only be liable for defects in the Minit Product at the moment of installation. By use of the Minit Product by or on behalf of the End User after installation, End User acknowledges that the Minit Product functions without defect.
7.2 The trial version of the Minit Product during the Trial Period is licensed free of charge and the Licensor shall not be liable for any defects.
7.3 The Licensor declares that the Minit Product will perform substantially in accordance with the Documentation. To the maximum extent permitted by Applicable Law, the Licensor provides no other warranty, guarantee or declaration of any kind, express or implied, including but not limited to, quality, conformity, accuracy, effectiveness, fitness for a particular purpose of the Minit Product. Should a defect occur, it is in the best interest of the Licensor to fix the defect that occurs during the use of the Minit Product. The Licensor will, at its discretion, endeavour (zich inspannen) to fix the defect that it is aware of.
8 Third-Party Software
8.1 The Minit Product provided by Licensor may contain certain Third-Party Software including (without limitation) free or open source software (“FOS Software”). Use of the Third-Party Software and its source code is governed by separate Third-Party Software’s terms and conditions that can be found at https://www.minit.io/third-party-licenses.
8.2 To the extent the Licensor is bound under Third-Party Software’s terms and conditions to procure for the End User to adhere to such Third-Party Software’s terms and conditions (as regularly updated) these are deemed to be incorporated by reference into this Agreement and are to be respected by the End User and considered to be binding between the Licensor and the End User in their entirety while such relationship shall be governed by the law governing the Third-Party Software’s terms and conditions, save for any conformity and/or warranties given by the third party which are not deemed to be repeated by the Licensor hereunder.
8.3 In case, the Third-Party Software referred to in Article 8.1 above includes any components that are made available under FOS Software licensing model, the Licensor distributes FOS Software under the terms of the applicable licences for such FOS Software. End User’s receipt of FOS Software components from the Licensor under this Agreement neither enlarges nor curtails End User’s rights or obligations defined by the applicable FOS Software licence applicable to FOS Software components.
8.4 It shall be the End User’s sole responsibility to check regularly for updated Third-Party Software’s terms and conditions. The End User hereby acknowledges that it read the Third-Party Software terms and conditions, it is familiar with them, understands these terms and conditions and is aware that additional liability may ensue from breach of these terms and conditions.
8.5 To the extent permitted by Applicable Law, the Licensor excludes any and all liability with regard to Third-Party Software.
SECTION D – Support Services
9 Support Services
9.1 The Licensor hereby agrees to provide the Support Services, all subject to the terms, conditions and limitations specified in the Maintenance and Service Support General Description that can be found at https://www.minit.io/hubfs/Documents/EULA/minit-maintenance.pdf.
9.2 Throughout the installation and use of the Minit Product, the End User shall comply with the User Documentation.
9.3 The End User acknowledges that during the provision of Support Services, the Minit Product may not function properly or at all.
9.4 The Licensor shall commence delivering the Support Services as of the date it accepts the Order form. The Support Services shall be available to the End User only while the End User continues to pay the Full Licence Fee. The Licensor shall have the right to further develop and update the Minit Product to newer versions at its own discretion without any limitation and with the frequency determined solely by the Licensor. Nothing in this Agreement, however, constitutes the legal claim of the End User to request any future Maintenance.
10 Support Service Fees
10.1 The End User may require additional support services that shall be subject to the payment of additional fees agreed with the Licensor in the Order.
SECTION E - General
11 Limitation of Liability – General
11.1 Neither Party shall be liable to the other Party for (a) a failure to perform its obligations due to circumstances beyond its reasonable control and for (b) damage, if the infringing Party proves that the breach of its obligation has been caused under the circumstances excluding liability pursuant to article 6:75 of the Civil Code, including but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labour, energy, raw materials or supplies, war, riot, circumstances excluding liability or governmental action.
11.2 The Licensor's entire liability for all claims or damages arising out of, or related to this Agreement, wrongful act or any other legal ground (including any breach of warranties or any indemnity granted by Licensor (if any)), regardless of the fact whether the End User acts as a defendant, a claimant or otherwise, shall be limited to and shall not exceed (in the aggregate for all claims, actions and causes of action of every kind and nature) 1/12 of the amount of the Full Licence Fee paid to the Licensor under this Agreement for the specific Licence that caused the damage or that is the subject matter of, or is directly related to, the cause of action. Nothing in the Agreement shall limit Licensor’s liability for intent (opzet) or wilfull recklessness (bewuste roekeloosheid) of Licensor or its managerial staff (leidinggevende ondergeschikten)
11.3 The Licensor shall not be liable in any manner whatsoever for the results obtained during the use of the Minit Product. The End User shall ensure that the Authorized User using the Minit Product is responsible for the supervision, management and control of the Minit Product. This responsibility includes, but is not limited to, the determination of appropriate use of the Minit Product. The End User is also responsible for establishing adequate and independent procedures for testing the reliability and accuracy of any Device. It is End User's obligation to establish whether the Device or any of its other equipment is technically suitable for installation and functioning of the Minit Product.
11.4 The Licensor shall not be liable to the End User for any loss or damage whatsoever or howsoever caused arising directly or indirectly from improper use of the Minit Product.
11.5 The Licensor shall not be liable in any manner whatsoever for (i) any indirect or consequential loss or damage, including but not limited to loss of profit within the meaning of article 6:96 section 1 of the Civil Code, loss of production, loss of income, and (ii) the operability and features of the Minit Product within the Trial Period and after its installation.
11.6 If claims are made against the Licensor or legal action is taken against the Licensor because of the End User’s use of the Third-Party Software in breach of the Agreement, the End User undertakes to indemnify and compensate the Licensor for the damages which the Licensor is ordered to pay and to compensate the Licensor for other costs incurred by the Licensor in connection therewith.
12 Personal data
12.1 The Licensor may process Personal Data of End User’s contact persons as a controller within the meaning of Article 4 (7) of the GDPR. The lawful basis for processing is its legitimate interest pursuant to Art. 6(1)(f) of the GDPR. The processing of Personal Data of End User’s contact persons is necessary for the conclusion of the Agreement and fulfilment of Licensor’s obligations arising from the Agreement.
12.2 The End User shall be obliged (i) to provide to its contact persons information that the Licensor processes their Personal Data and (ii) to inform them that they can find detailed information about how the Licensor collects and processes Personal Data in its Privacy Policy that is available at https://www.minit.io/privacy-notice.
12.3 Any data that are to be (i) considered Personal Data pursuant to Data Protection Laws and (ii) inserted by the End User into the Minit Product licensed to the End User that runs on the Licensor's cloud shall be anonymized. In case the End User wishes to insert non-anonymized personal data, it can do this only upon (i) prior notification of the Licensor and (ii) conclusion written Data Processing Agreement with the Licensor. The form and the content of the written Data Processing Agreement shall be set by the Licensor. The End User acknowledges and accepts that it is solely responsible for ensuring that such processing is based on one of lawful bases according to Article 6 of the GDPR. In relation to inserted Personal Data, the End User always processes them as a controller within the meaning of Article 4 (7) of the GDPR.
12.4 If the End User breaches any obligation under Section 12.2 or 12.3 hereof, the Licensor is entitled to claim the contractual penalty in the amount of fine imposed by respective data protection authority to the Licensor for each such breach of obligation or to the extent of any costs incurred to the Licensor in connection with such breach. The Licensor’s right to request specific performance (nakoming) and to claim damages shall not be affected.
12.5 The Licensor may also collect and keep various anonymous data or aggregated statistics about the use of the Minit Product and how the use of the Minit Product may improve the efficiency across End User’s organisation; based on these anonymous data and statistics one cannot identify an individual or the End User, however based on such information the Licensor can make comparison of companies’ performance within particular industry.
13 Fees and Payments
13.1 The Licensor shall issue any and all invoices in accordance with the applicable tax and accountancy regulations. The Fees shall be invoiced by the Licensor and shall be paid to the account of the Licensor specified in the respective invoice, unless agreed otherwise in writing.
13.2 All payments to be made by the End User to the Licensor under this Agreement shall be made free and clear of and without deduction for or on account of any tax, duties or levies unless the End User is required by law to make such payment. In such case the sum payable by the End User in respect of which the deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after making the required deduction or withholding, the Licensor receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the Fees which it would have received and so retained had no such deduction or withholding been made or required to be made.
13.3 End User will apply a reduced rate of withholding tax (if any) provided for in any applicable double tax treaty only if Licensor furnishes End User with such documentation required under the applicable double tax treaty or otherwise satisfactory to End User, sufficient to establish Licensor’s entitlement to the benefit of the reduced rate of withholding tax. The End User agrees to cooperate in good faith to provide Licensor with such documents and certifications that are reasonably necessary to enable Licensor to recover any tax withheld.
14 Confidentiality
14.1 The Parties shall keep confidential any and all confidential information on (i) the Minit Product and related documentation (ii) any business or technical information of the other Party, including but not limited to any information relating to its product plans, designs, costs, Fees, names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” and, if orally disclosed, reduced to writing by the disclosing Party within thirty (30) days of such disclosure; and (iii) the specific terms and pricing set forth in this Agreement (“Confidential Information”).
14.2 Notwithstanding the above, Confidential Information does not include information that is or becomes (i) generally known to the public through no fault or breach of this Agreement by the receiving Party, (ii) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality, (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information, (iv) the receiving Party rightfully obtains from a third party without restriction on use or disclosure, (v) is disclosed with the prior written approval of the disclosing Party (vi) must be disclosed under the applicable generally binding legal regulations or due to decision of the court or administrative authority.
14.3 None of the Parties will use the other Party’s Confidential Information except as permitted herein, or will disclose such Confidential Information to any third party except as permitted herein or if disclosed to employees, advisors and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each Party may disclose Confidential Information of the other Party (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing Party gives reasonable notice to the other Party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors.
14.4 Should End User breach any duty under this Article 14 it shall pay the Licensor the contractual penalty of EUR 100,000 (one hundred thousand euros) for each such breach of obligation. The right to request specific performance (nakoming) and/or claim damages shall remain unaffected.
15 Marketing
15.1 The End User grants to the Licensor the right to refer to End User as a customer in Minit Product promotional materials. The End User can deny the Licensor this right at any time by submitting written request via email to sales@minit.io, requesting to be excluded from Minit Product promotional material. Requests made after purchasing may take 30 calendar days to process.
16 Notification and Investigation
16.1 If the End User learns (or should have learned, acting reasonably) of any breach of obligations under this Agreement, the End User shall immediately report such breach to the Licensor via email to sales@minit.io and/or by registered mail to the address as set out in the Order.
16.2 Where a breach involves the distribution or use of the Minit Product outside of the respective Licence granted under this Agreement, the Licensor shall be entitled (in addition to any other right or claim that the Licensor may have against the End User) to retroactively charge the End User, in addition to any other Fees payable by End User under this Agreement, a fee calculated based on the number of prohibited distributions or uses times the respective list prices that the Licensor charges for the Minit Product. The Parties agree that the amount of the additional fees shall be deemed a contractual penalty that is without prejudice to any and all other rights and remedies the Licensor has (including the right to request specific performance (nakoming) and/or to claim damages). In addition, the Licensor’s right for indemnification of the damage caused by breach of the above obligation by End User shall remain unaffected.
16.3 If the Licensor reasonably suspects that the Minit Product has been distributed to or obtained by any person or party without the Licensor’s prior written consent or that the Minit Product is being varied or accessed or that the End User is otherwise breaching a term of this Agreement, the Licensor reserves the right to terminate (ontbinden)the Agreement and claim the damages.
17 Renewal & Termination of Licence
17.1 The End User shall notify the Licensor about the intended termination of the annual License at least 30 days before the end of the then ongoing subscription period. If there is no termination notification, the Licence will be renewed on an annual basis of the subscription terms specified in the Order.
17.2 If the End User fails to comply with any of the provisions of this Agreement, including adherence to Third-Party Software’s terms and conditions (as regularly updated), the Licensor shall be entitled to terminate (ontbinden) this Agreement in whole or in part effective immediately, without prejudice to any entitlement or legal remedy open to the Licensor in such eventualities.
17.3 If any provider of Third-Party Software terminates a licence granted to Licensor, the Licensor shall be entitled to terminate (opzeggen) this Agreement effective immediately under condition it, at its own discretion, refunds to the End User a prorated portion of any unused, prepaid subscription Fees paid by End User.
17.4 Immediately upon termination of the Licence granted under this Agreement, for whatever reason, the End User must at its own cost (i) cease permitting access to and procure that all Authorized Users immediately cease all use of the Minit Product, (ii) delete, destroy or return all copies of the Minit Product from Devices and other systems, and (iii) provide the Licensor with written certification that it has destroyed all copies of the Minit Product in its possessions, custody or control not later than within 10 days after termination of this Agreement.
17.5 All Licence rights will cease upon termination of this Agreement. The End User agrees that upon termination of this Agreement for any reason, the Licensor may take any legal actions or implement any technical solution so that the Minit Product hereunder does not operate any longer.
17.6 Use of the Minit Product after termination of the Agreement is prohibited and the Licensor may claim the unjust enrichment from the End User.
17.7 The End User will reimburse the Licensor for any reasonable legal fees and other costs and expenses incurred by the Licensor in collecting past due amounts. Notwithstanding Licensor’s other rights and remedies, including the right to request specific performance or to claim damages or statutory commercial interest (wettelijke handelsrente), the Parties agree that the amount of reimbursement shall be deemed a contractual penalty.
17.8 To avoid any doubts, in case of termination of this Agreement for any reason, save for termination under Section 17.3, the End User is not entitled to any refund of Fees paid hereunder.
17.9 All provisions of this Agreement relating to Licensor’s ownership of the Minit Product (Section 5.1), limitations of liability (Section 11), disclaimers of warranties (Section 7.3), confidentiality (Section 14), waiver (Section 20.9) and governing law and jurisdiction (Section 20.3) and any other provisions that by their nature are intended to survive termination of this Agreement shall survive the termination of this Agreement.
18 Compliance with laws
18.1 The End User agrees not to export, re-export or license any Minit Product to any parties located in any countries prohibited under United States and/or European Union embargoes or sanctions programs maintained by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or otherwise prohibited under Applicable Law regarding export control (collectively, the “Export Control Laws”). The End User agrees at all times to comply with the Export Control Laws. In addition, the End User agrees that it will not export, re-export or license any Minit Product to any parties that are named as a “Specially Designated National” or “Blocked Person” as designated by the OFAC (which is currently published under the Internet address http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx). The End User hereby acknowledges and certifies to Licensor that it understands that the Minit Product and its components and related technology may be subject to the Export Control Laws which may include, without limitation: (i) U.S. export regulations governing the export, transfer, or re-export of U.S. manufactured products, and products containing U.S. components, Minit Product, or technology as set forth in the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 772 et seq.; and (ii) U.S. regulations and laws restricting U.S. companies from doing business with certain embargoed countries and entities as set forth in statutes, executive orders, and the regulations promulgated by the Office of Foreign Assets Control (OFAC), 31 C.F.R. §§ 500 et seq., as amended from time to time Without limiting the foregoing, the End User certifies that it will not use, or allow the use of, the Minit Product in support of exploration or production for deep-water, Arctic offshore, or shale projects: (1) that have the potential to produce oil in the Russian Federation, or in maritime area claimed by the Russian Federation and extending from its territory, and that involve any person determined to be subject to Directive 4 under U.S. Executive Order 13662 or any earlier version thereof, their property, or their interests in property; or (2) that are initiated on or after January 29, 2018, that have the potential to produce oil in any location, and in which any person determined to be subject to this Directive 4 under U.S. Executive Order 13662 or any earlier version thereof, their property, or their interests in property has (a) a 33 percent or greater ownership interest, or (b) ownership of a majority of the voting interests.
18.2 The End User will indemnify, defend and hold harmless the Licensor and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from End User’s failure to comply with any Export Control Laws.
19 Recordkeeping and Audit
19.1 While this Agreement is in effect and for two (2) years after the effective date of its termination, upon request by Licensor but not more than twice per calendar year, the End User shall conduct a self-audit of its use of the Minit Product and its compliance with its obligations under this Agreement and, within ten (10) Business Days after receipt of such request, submit a written statement to Licensor verifying that it is in compliance with the terms and conditions of this Agreement.
19.2 The Licensor shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an on-premise audit of End User’s compliance with this Agreement. The Licensor’s written request for audit will be submitted to End User at least 10 days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to End User’s business. If the audit reveals an underpayment of fees by End User of more than ten percent (10%), then notwithstanding any rights or remedies available to Licensor in respect of such non-compliance, the End User shall reimburse the Licensor for the expenses incurred by Licensor in conducting the audit. Further, if the results of such audit reveal that the End User is not in material compliance with its obligations under this Agreement, the Licensor may terminate (ontbinden) this Agreement effective immediately.
20 General
20.1 The Order forms an integral part of this Agreement and shall be read as one document. The Order shall prevail in case of discrepancy between the Order and the Agreement.
20.2 Neither Party will have the right to assign the Agreement, in whole or in part, without the other Party’s prior written consent.
20.3 Save for relationships described in Section 8.2, the Agreement is governed by and construed in accordance with the laws of the Netherlands. For the avoidance of doubts, the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby specifically excluded. All disputes arising out of or in connection with the Agreement shall be finally settled by the courts of Amsterdam, the Netherlands.
20.4 If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, that provision to the extent permitted by law shall be severed from this Agreement and shall not affect the remaining provisions hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
20.5 The End User shall notify the Licensor in writing, without undue delay, of any changes in the information contained in the Agreement, or any changes affecting the End User’s identity or legal status, or any significant facts and changes that relate to or might have a substantial impact on its transactions or business relationship with the Licensor or the End User’s ability to fulfil its obligations towards the Licensor or of which the Licensor could reasonably be expected to be informed. The End User shall submit documents evidencing such changes and other information as the Licensor may reasonably request. Any change shall become effective against and binding on the Licensor on the Business Day following receipt of such notification, notwithstanding any information contained in any public register. The End User is responsible for any loss or damage incurred by the Licensor or the End User arising out of the failure of the End User to duly and promptly notify the Licensor of such changes.
20.6 The End User agrees that the Licensor shall be entitled to collect data used or gathered in or by the Minit Product or in relation therewith, for purposes of development and enhancement of the Minit Product. This excludes those data, which are according to GDPR considered personal data.
20.7 Nothing in this Agreement shall create a partnership or a corporation between the Parties, nor deem either Party the agent of the other Party for any purpose.
20.8 The Licensor may unilaterally change the terms and conditions of this Agreement and the End User shall be informed of such changes. The End User, by clicking the “Accept” option, accepts the changed terms and conditions of this Agreement; otherwise the End User shall be unable to continue using the Minit Product or install or download the updated version of the Minit Product.
20.9 No waiver by either Party of any breach or default of the other Party in performing its obligations under the Agreement shall be deemed or construed to be a waiver of any other breach or default by the other Party of the same or any other obligation hereunder. No waiver of any rights under the Agreement shall be effective unless in writing and signed by the Party purporting to give such waiver.
20.10 All notices shall be made in writing in English by email and/or registered mail to the address as set out in the Order.
ANNEX 1: MINIT PRODUCT DESCRIPTION
Minit Product is a software for the analysis of a large number of business processes („Minit“). Minit can utilize the records stored in the majority of enterprise information systems such as LOB, CRM, ERP or BPM tools. Minit technology can speed up the process analysis several times, by using the combination of the latest data-processing algorithms and techniques. Minit automatically creates process models and displays the communication within business processes. Minit also clearly visualises statistical information and offers the possibility of creating charts according to users’ needs. It also provides the user with advanced analytical functions using a wide range of options for filtering and animations of the progress of recorded events. Easy detection of the inefficiency of processes is possible thanks to the frequency, time, and procedural indicators as well as your own metrics created via custom metrics.
Main modules of Minit are:
• Process mapMinit Dashboards is a web-based product allowing users to publish the prepared analytical views from Minit and build interactive dashboards on the top of them in web environment. Minit Dashboards functionality allows analyst to publish and access the results of process analysis and monitor actual state online. It enables users to build interactive dashboards with built-in drill down capabilities and gives users flexibility up to the level of self-service process intelligence.
Minit j.s.a. - END USER LICENCE AGREEMENT – RESELLER
PLEASE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE MINIT PRODUCT– PROCESS MINING.
This Agreement is a licence agreement between Minit j.s.a., with its registered seat at Košická 56, 821 08 Bratislava, Slovak Republic, Identification No.: 51 042 487, registered in the Commercial Register of the District court Bratislava I, section: Sja, File No. 20/B (“Licensor”) and you as a legal entity (“End User”). The Agreement sets out the conditions under which End User is entitled to use the Minit Product.
THIS IS NOT A PURCHASE AGREEMENT BUT A LICENCE AGREEMENT WITH THE END USER. The Licensor continues to own the Minit Product and its copies used by End User pursuant to this Agreement.
YOU AGREE THAT BY CLICKING THE “ACCEPT” BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1 AGREEMENT STRUCTURE AND TABLE OF CONTENT
1.1 Aside from this clause, all provisions of the Agreement are divided into five (5) Sections.
Section A (Article 2) provides for definitions.
Section B (Articles 3 - 4) regulates a Delivery and Installation.
Section C (Articles 5 – 8) provides for conditions related to Licence.
Section D (Articles 9 – 10) provides for conditions related to Support Services.
Section E (Articles 11 – 20) provides for general conditions that are related to both, Licence and Support Services.
SECTION A - Definitions
2 Definitions‘Agreement’ means this End User Licence Agreement between the Licensor and the End User for the provision of the Minit Product or Support Services.
‘Authorized User’ means the End User including End User's employee and/or auxiliary person (hulppersoon) of the the End User authorized by the End User to have access and use the Minit Product within the scope of Licence granted by the Licensor under this Agreement.
‘Civil Code’ means the Dutch Civil Code as amended or any other legal act repealing and replacing the former.
‘Confidential Information’ means information that shall be kept confidential as stipulated in Article 14 hereof.
‘Copyright Act’ means the Dutch Copyright Act (Auteurswet) or any local equivalent thereof.
‘Consulting Licence’ means the Licence authorizing the End User to use the Minit Product for its own internal use and also in provision of consultation services to its clients. End User must secure that its clients cannot access the Minit Product in any way. For the avoidance of doubts, End User shall be entitled to present results generated by Minit Product to its clients.
‘Business Day’ means any day other than a weekend or a public holiday in the Slovak Republic and the country of End User’s incorporation.
‘Data Processing Agreement’ means a legally binding agreement, entered into between the Licensor and the End User, which regulates the particularities of data processing such as its scope and purpose as well as the relationship between the Licensor and the End User.
‘Data Protection Laws’ mean the GDPR, the Implementation GDPR act (Uitvoeringswet AVG) and, to the extent applicable, the data protection or privacy laws of any other country.
‘Device’ means any hardware device owned, leased, used or controlled by the End User and agreed between the Licensor and the End User as the device on which the Minit Product is installed or is supposed to be installed.
‘Documentation’ means the main characteristics and functionalities of the Minit Product which are specified in Annex 1 hereof.
‘Effective Date’ means the date when the End User accepts the terms of this Agreement by clicking on the “Accept” or similar button when installing the Minit Product.
‘Fees’ means total of the Full Licence Fee and/or other fees according to the Order and to the Agreement.
‘First Level Support’ means ability to provide general post-sales Minit Product information; hardware and software configuration; deal with the Maintenance; collect relevant technical problem identification information; perform base problem determination; provide basic support on the standard protocols and features plus the ability to resolve the majority of misconfigurations, troubleshoot and simulate complex configuration, hardware, and software problems; support problem isolation and determination of Minit Product specification defects; provide lab simulation and interoperability and compatibility testing for new software and hardware releases; define an action plan; provide basic support on all protocols and features; have the ability to analyze traces, diagnose problems remotely, and provide steps to reproduce a certain problem
‘Full Licence’ means the Licence granted (i) after the payment of the Full Licence Fee to Licensor and (ii) for the period agreed in respective Order.
‘Full Licence Fee’ means the annual licence fee and the fee for the respective Support Services specified in the Order.
‘GDPR’ means REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
‘Intellectual Property Rights’ mean copyrights, trade and service marks, including the trademarks, trade names, rights in logos and get-up and trade dress, inventions, confidential information, trade secrets and know-how, registered designs, design rights, patents, utility models, semi-conductor topographies, domain names, all rights of whatsoever nature in computer software and data, all rights of privacy and all intangible rights and privileges of a nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration in respect of any of the same;
‘Licence’ means a licence grantedby the Licensor to the End User to use the Minit Product.
‘Licence Key’ means a code consisting of numbers and/or letters generated by Minit to activate the Minit Product issued for specific Device identified by the Machine Key.
‘Machine Key’ means identification of the Device on which particular Minit Product shall be installed.
‘Maintenance’ means any update, upgrade, fix, new release or enhancement of the Minit Product.
‘Minit Product’ means any software product developed as a result of activities of Minit and used on the basis of granted licence rights; software product means, in particular, a computer program within the meaning of the Copyright Act created by Minit including any future Maintenance and/or upgrades thereof. The full list of Minit Products, functionality of Minit Products and technical requirements for installation, in the extent specified by Minit, is available at https://www.minit.io/minit-software-download.
‘On-boarding’ means a training (based on the number of Authorized Users) focused on introduction and handling the Minit Product with duration, participants and content specified individually in the Order.
‘Order’ means the Reseller’s binding offer to order particular Minit Product specified in the Order in the interest of the End User, where Licence terms and Fees are determined; including specific terms and conditions regarding the provision of Minit Product and specific services to be provided to the End User either by the Reseller directly or through Licensor.
‘Personal Data’ means any information relating to an identified or identifiable natural person.
‘Party’ or ‘Parties’ means the Licensor and the End User, individually and collectively, as the case may be.
‘POC’ means the proof of concept, i.e. the process throughout which the Licensor manifests selected features of the Minit Product; subject to agreement between the Parties, this process can be charged by the Licensor.
‘Reseller’ means a person that is, based on respective Reseller agreement concluded between the Reseller and the Licensor, entitled to promote, market and solicit orders for the Minit Product and provide some additional services to End User. The Reseller is not entitled to any of the Intellectual Property Rights related to Minit Product or ownership of the Minit Product and the Licensor shall own Minit Product and all of its copies throughout the life of this Agreement.
‘Second Level Support’ means the ability to provide First Level Support plus the ability to provide Minit Product enhancements such as patches and hotfixes, fixing or generating workarounds that address Minit Product bugs; troubleshoot bugs that were not diagnosed during First Level Support; work with the End User to resolve specific critical situations; and building action plans with End Users to address complex issues
‘SaaS’ means the deployment of the Minit Product on hardware controlled solely by the Licensor granting remote access to the Minit Product by End Users whereas End Users shall not receive the Licence Key or any other license to the Minit Product.
‘Support Services’ mean the provision of Maintenance and First Level Support and Second Level Support in relation to the Minit Product via telephone or e-mail; for the avoidance of doubt it excludes on premise support; the provision of Support Services is defined in the Maintenance and Service Support General Description available at https://www.minit.io/hubfs/Documents/EULA/minit-maintenance.pdf or under separate agreement.
‘Temporary Licence’ means a Licence granted for limited period, in principle for one month or longer period, prior to the payment of Fees;
‘Third-Party Software’ means the programs or components embedded in the Minit Product as provided under the Section 8.1 hereof.
‘Trial Licence’ means a licence granted to End User for the Trial Period in order to test and evaluate the Minit Product.
‘Trial Period’ means the period determined by the Licensor during which the End User may use the Minit Product based on the Trial Licence and free of charge.
‘User Documentation’ means user documentation related to Minit Product detailing the Minit Product provided by the Licensor, in particular installation guide and getting started guide that can be found at https://www.minit.io/minit-software-download.
3 Trial Period
3.1 The End User may test the Minit Product during the Trial Period. The Reseller shall deliver the Minit Product trial version to the End User either to email address provided by the End User, through a licensing manager or by another manner agreed between the End User and the Reseller. Upon installation, the End User is issued a unique Machine Key. The End User shall be obliged to provide the Reseller with this Machine Key via e-mail without undue delay and the Reseller will forward the Machine Key to the Licensor. The End User’s Device shall be identified based on the unique Machine Key provided by the End User and shall be associated with the Temporary Licence or Full Licence issued to End User. During the Trial Period, the Minit Product trial version shall have a limited functionality and the End User shall ensure that the Minit Product is accessible only by a limited number of temporary users as determined by the Licensor. There is only one Trial Period granted to one End User at the relevant time. Upon the request of the End User the Trial Period may be extended by the Licensor (i) either by additional time or (ii) by the number of analysed events. The Trial Period is optional.
3.2 After the Trial Period expires (if applicable), the Parties or the End User and the Reseller may agree that POC shall be provided, either free of charge or for remuneration. The provision of POC is optional and shall be agreed between the Parties or the End User and the Reseller on ad hoc basis.
4 Order
4.1 After the Trial Period (if applicable), the Reseller shall submit a proposal to the End User via email. In case the End User confirms the proposal, the Reseller shall create and sent duly signed Order to the Licensor’s e-mail address set out in the Order form. The Order shall only be deemed to be accepted when the Licensor confirms to the Reseller that it accepts received Order by electronic mail or by other means.
4.2 After the acceptance of the Order, the Licensor issues the Temporary Licence together with the invoice for the Full Licence Fee and delivers both documents to the Reseller. Upon the payment of the Full Licence Fee prior to termination of Temporary Licence, the Licensor shall issue the Full Licence and deliver it to the Reseller. The Reseller is bound to deliver the Temporary License and the Full License (i.e to deliver the Licence Key) and all other materials to the End User. In case the Full Licence Fee is not credited to the Licensor’s account within 5 days after the maturity of the relevant invoice, the Licensor will notify the Reseller that the End User is no longer entitled to use the Minit Product and that it must remove and delete all copies of the Minit Product in its possession. The End User acknowledges and accepts that the Licensor is authorized to deactivate the Minit Product should the Reseller fail to transfer the Full Licence Fee to the Licensor for whatever reason and that the Reseller is directly responsible and liable to the End User for transfer of the Full Licence Fee to the Licensor.
SECTION C - Licence
5 Ownership
5.1 The Minit Product is the property of the Licensor. The title to, and all applicable rights, including Intellectual Property Rights and trade secrets vested in the Minit Product will remain sole and exclusive property of the Licensor.
6 Grant of Licence
6.1 Upon Effective Date, the Licensor hereby grants to the End User a Trial Licence which represents a limited, worldwide, non-exclusive, revocable, non-transferable (with no right to sub-license) right to test the Minit Product for its internal evaluation purposes.
6.2 Upon payment of the Full Licence Fee by Reseller within the maturity period, the Licensor hereby grants to the End User a Full Licence which represents worldwide, non-transferable (with no right to sub-license), revocable, non-exclusive right to use the Minit Product for its own internal use or consultation purposes as specified in the Order and for the term specified in the Order.
6.3 Prior to the payment of the Full Licence Fee by Reseller, the Licensor grants to the End User the Temporary Licence which represents worldwide, non-transferable (with no right to sub-license), revocable, non-exclusive right to use the Minit Product for its own internal use or consultation purposes as specified in the Order.
6.4 The End User may (i) install the Minit Product on the Devices unless otherwise approved by the Licensor or remotely access the Minit Product in case of SaaS deployment, (ii) use the Minit Product only for a purpose or in a manner for which the Minit Product was designed and licensed to End User, (iii) use the Minit Product under the Full Licence on single Device if the Minit Product runs as standalone, (iv) allow Authorized Users to use the Minit Product only for a purpose or in a manner for which the Minit Product was designed and licensed to End User, and (v) use the Minit Product for internal, and not for commercial purposes. The End User undertakes to inform either the Reseller or the Licensor without undue delay about the change of Device’s ownership.
6.5 The End User shall ensure that the maximum number of Authorized Users accessing and using the Minit Product concurrently corresponds to the number of Full Licences granted and paid for to the Licensor in accordance with the relevant Order.
6.6 Except as otherwise stated in the Agreement, the End User is expressly forbidden to use the Minit Product causing or permitting (i) disclosure, display, access, or use of the Minit Product by anyone other than an Authorized User, and (ii) the loan, publication, transfer of possession (whether by sale, exchange, gift, operation of law or otherwise), sublicensing, rental, or other dissemination or use of the Minit Product, in whole or in part, to or for any third party. The End User must not (except as expressly required by law) reverse engineer, decompile, translate, disassemble, or otherwise attempt to discover the source code of the Minit Product as it contains trade secrets. The End User must not produce illegal copies of the Minit Product.
6.7 The End User acknowledges that self-standing results acquired from use of the Minit Product might need further expert interpretation and additional consulting to be provided by the third parties.
7 Warranty related to the Licence
7.1 The Licensor shall only be liable for defects in the Minit Product at the moment of installation. By use of the Minit Product by or on behalf of the End User after installation, End User acknowledges that the Minit Product functions without defect.
7.2 The trial version of the Minit Product during the Trial Period is licensed free of charge and the Licensor shall not be liable for any defects.
7.3 The Licensor declares that the Minit Product will perform substantially in accordance with the Documentation. To the maximum extent permitted by Applicable Law, the Licensor provides no other warranty, guarantee or declaration of any kind, express or implied, including but not limited to, quality, conformity, accuracy, effectiveness, fitness for a particular purpose of the Minit Product. Should a defect falling under the First Level Support occur and the Reseller committed to provide the First Level Support, it is in best interest of the Reseller and the Licensor to fix the defect that occurs during the use of the Minit Product. The Reseller will, at its discretion, endeavour (zich inspannen) to fix the defect that it is aware of. Should the Reseller be unable to fix such defect, it shall report the defect to the Licensor without undue delay and the Licensor will endeavor (zich inspannen) to fix the defect reported by Reseller.
7.4 It is in the best interest of the Licensor to fix the defect that occurs during the use of the Minit Product by the End User and which fall under the Second Level Support.
8 Third-Party Software
8.1 The Minit Product provided by Licensor may contain certain Third-Party Software including (without limitation) free or open source software (“FOS Software”). Use of the Third-Party Software and its source code is governed by separate Third-Party Software’s terms and conditions that can be found at https://www.minit.io/third-party-licenses.
8.2 To the extent the Licensor is bound under Third-Party Software’s terms and conditions to procure for the End User to adhere to such Third-Party Software’s terms and conditions (as regularly updated) these are deemed to be incorporated by reference into this Agreement and are to be respected by the End User and considered to be binding between the Licensor and the End User in their entirety while such relationship shall be governed by the law governing the Third-Party Software’s terms and conditions, save for conformity and/or warranties given by the third party which are not deemed to be repeated by the Licensor hereunder.
8.3 In case, the Third-Party Software referred to in Article 8.1 above includes any components that are made available under FOS Software licensing model, the Licensor distributes FOS Software under the terms of the applicable licences for such FOS Software. End User’s receipt of FOS Software components from the Licensor under this Agreement neither enlarges nor curtails End User’s rights or obligations defined by the applicable FOS Software licence applicable to FOS Software components.
8.4 It shall be the End User’s sole responsibility to check regularly for updated Third-Party Software’s terms and conditions. The End User hereby acknowledges that it read the Third-Party Software terms and conditions, it is familiar with them, understands these terms and conditions and is aware that additional liability may ensue from breach of these terms and conditions.
8.5 To the extent permitted by Applicable Law, the Licensor excludes any and liability with regard to Third-Party Software.
SECTION D – Support Services
9 Support Services
9.1 In principle, the Reseller is appointed to provide the Support Services (save for Second Level Support) to End User unless otherwise specified in the Order. If the Reseller does not committed to provide any of Support Services pursuant to the Order, the Licensor shall be always responsible for provision of Support Services. The Reseller may, upon prior written consent of the Licensor, procure the provision of Support Services also through a third party.
9.2 Throughout the installation and use of the Minit Product, the End User shall comply with the User Documentation.
9.3 The End User acknowledges that during the provision of Support Services, the Minit Product may not function properly or at all.
9.4 The Reseller and/or the Licensor, as the case may be, shall commence delivering the Support Services as of the date it accepts the Order form. The Support Services shall be available to the End User only while the End User continues to pay the Full Licence Fee. The Licensor shall have the right to further develop and update the Minit Product to newer versions at its own discretion without any limitation and with the frequency determined solely by the Licensor. Nothing in this Agreement, however, constitutes the legal claim of the End User to request any future Maintenance.
10 Support Service Fees
10.1 The End User may through the Reseller require additional support services that shall be subject to the payment of additional fees.
SECTION E - General
11 Limitation of Liability – General
11.1 Neither Party shall be liable to the other Party for (a) a failure to perform its obligations due to circumstances beyond its reasonable control and for (b) damage, if the infringing Party proves that the breach of its obligation has been caused under the circumstances excluding liability pursuant to Article 6:75 of the Civil Code, including but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labour, energy, raw materials or supplies, war, riot, circumstances excluding liability or governmental action.
11.2 The Licensor's entire liability for all claims or damages arising out of, or related to this Agreement, wrongful act or any other legal ground (including any breach of warranties or any indemnity granted by Licensor (if any)) regardless of the fact whether the End User acts as a defendant, a claimant or otherwise, shall be limited to and shall not exceed (in the aggregate for all claims, actions and causes of action of every kind and nature) 1/12 of the amount of the Full Licence Fee paid to the Licensor by Reseller under this Agreement for the specific Licence that caused the damage or that is the subject matter of, or is directly related to, the cause of action. Nothing in the Agreement shall limit Licensor’s liability for intent (opzet) or wilful recklessness (bewuste roekeloosheid) of Licensor or its managerial staff (leidinggevende ondergeschikten).
11.3 The Licensor shall not be liable in any manner whatsoever for the results obtained during the use of the Minit Product. The End User shall ensure that the Authorized User using the Minit Product is responsible for the supervision, management and control of the Minit Product. This responsibility includes, but is not limited to, the determination of appropriate use of the Minit Product. The End User is also responsible for establishing adequate and independent procedures for testing the reliability and accuracy of any Device. It is End User's obligation to establish whether the Device or any of its other equipment is technically suitable for installation and functioning of the Minit Product.
11.4 The Licensor shall not be liable to the End User for any loss or damage whatsoever or howsoever caused arising directly or indirectly from improper use of the Minit Product.
11.5 The Licensor shall not be liable in any manner whatsoever for (i) any indirect or consequential loss or damage, including but not limited to loss of profit within the meaning of article 6:96 section 1 of the Civil Code, loss of production, loss of income, and (ii) the operability and features of the Minit Product within the Trial Period and after its installation.
11.6 If claims are made against the Licensor or legal action is taken against the Licensor because of the End User’s use of the Third-Party Software in breach of the Agreement, the End User undertakes to indemnify and compensate the Licensor for the damages which the Licensor is ordered to pay and to compensate the Licensor for other costs incurred by the Licensor in connection therewith.
12 Personal data
12.1 The Licensor may process Personal Data of End User’s contact persons as a controller within the meaning of Article 4 (7) of the GDPR. The lawful basis for processing is its legitimate interest pursuant to Art. 6(1)(f) of the GDPR. The processing of Personal Data of End User’s contact persons is necessary for the conclusion of the Agreement and fulfilment of Licensor’s obligations arising from the Agreement.
12.2 The End User shall be obliged (i) to provide to its contact persons information that the Licensor processes their Personal Data and (ii) to inform them that they can find detailed information about how the Licensor collects and processes Personal Data in its Privacy Policy that is available at https://www.minit.io/privacy-notice.
12.3 Any data that are to be (i) considered Personal Data pursuant to Data Protection Laws and (ii) inserted by the End User into the Minit Product licensed to the End User that runs on the Licensor's cloud shall be anonymized. In case the End User wishes to insert non-anonymized personal data, it can do this only upon (i) prior notification of the Licensor and (ii) conclusion written Data Processing Agreement with the Licensor. The form and the content of the written Data Processing Agreement shall be set by the Licensor. The End User acknowledges and accepts that it is solely responsible for ensuring that such processing is based on one of lawful bases according to Article 6 of the GDPR. In relation to inserted Personal Data, the End User always processes them as a controller within the meaning of Article 4 (7) of the GDPR.
12.4 If the End User breaches any obligation under Section 12.2 or 12.3 hereof, the Licensor is entitled to claim the contractual penalty in the amount of fine imposed by respective data protection authority to the Licensor for each such breach of obligation or to the extent of any costs incurred to the Licensor in connection with such breach. The right to request specific performance (nakoming) and/or claim damages shall not be affected.
12.5 The Licensor may also collect and keep various anonymous data or aggregated statistics about the use of the Minit Product and how the use of the Minit Product may improve the efficiency across End User’s organisation; based on these anonymous data and statistics one cannot identify an individual or the End User, however based on such information the Licensor can make comparison of companies’ performance within particular industry.
13 Fees and Payments
13.1 For all Licences to Minit Products ordered by the Reseller for the End User, the Reseller will pay applicable Fees in the amount stated in the Order. The Reseller is bound by the Licensor and is held directly responsible and liable to the End User for transfer of the Full Licence Fee to the Licensor and in case of refund pursuant to Section 17.3 hereof also for transfer of refunded fees back to the End User.
13.2 The Licensor shall issue any and all invoices in accordance with the applicable tax and accountancy regulations. The Fees shall be invoiced by the Licensor and shall be paid to the account of the Licensor specified in the respective invoice, unless agreed otherwise in writing. All invoiced Fees are excluding VAT or similar taxes.
14 Confidentiality
14.1 The Parties shall keep confidential any and all confidential information on (i) the Minit Product and related documentation (ii) any business or technical information of the other Party, including but not limited to any information relating to its product plans, designs, costs, Fees, names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” and, if orally disclosed, reduced to writing by the disclosing Party within thirty (30) days of such disclosure; and (iii) the specific terms and pricing set forth in this Agreement (“Confidential Information”).
14.2 Notwithstanding the above, Confidential Information does not include information that is or becomes (i) generally known to the public through no fault or breach of this Agreement by the receiving Party, (ii) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality, (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information, (iv) the receiving Party rightfully obtains from a third party without restriction on use or disclosure, (v) is disclosed with the prior written approval of the disclosing Party (vi) must be disclosed under the applicable generally binding legal regulations or due to decision of the court or administrative authority.
14.3 None of the Parties will use the other Party’s Confidential Information except as permitted herein, or will disclose such Confidential Information to any third party except as permitted herein or if disclosed to employees, advisors and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each Party may disclose Confidential Information of the other Party (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing Party gives reasonable notice to the other Party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors.
14.4 Should the End User breach any duty under this Article 14 it shall pay the Licensor the contractual penalty of EUR 100,000 (one hundred thousand euros) for each such breach of obligation. The right to request specific performance (nakoming) and/or claim damages shall remain unaffected.
15 Marketing
15.1 The End User grants to the Licensor the right to refer to End User as a customer in Minit Product promotional materials. The End User can deny the Licensor this right at any time by submitting written request via email to sales@minit.io, requesting to be excluded from Minit Product promotional material. Requests made after purchasing may take 30 calendar days to process.
16 Notification and Investigation
16.1 If the End User learns (or should have learned, acting reasonably) of any breach of obligations under this Agreement, the End User shall immediately report such breach to the Licensor via email to sales@minit.io or by email to the Reseller.
16.2 Where a breach involves the distribution or use of the Minit Product outside of the respective Licence granted under this Agreement, the Licensor shall be entitled (in addition to any other right or claim that the Licensor may have against the End User) to retroactively charge the End User, in addition to already paid Fees under this Agreement, a fee calculated based on the number of prohibited distributions or uses times the respective list prices that the Licensor charges for the Minit Product. The Parties agree that the amount of the additional fees shall be deemed a contractual penalty that is without prejudice to any and all other rights and remedies the Licensor has (including the right to request specific performance (nakoming) and/or to claim damages). In addition, the Licensor’s right for indemnification of the damage caused by breach of the above obligation by End User shall remain unaffected.
16.3 If the Licensor reasonably suspects that the Minit Product has been distributed to or obtained by any person or party without the Licensor’s prior written consent or that the Minit Product is being varied or accessed or that the End User is otherwise breaching a term of this Agreement, the Licensor reserves the right to terminate (ontbinden) the Agreement, in whole or in part, and to claim damages. ,
17 Renewal & Termination of Licence
17.1 The End User shall, either directly or through Reseller notify the Licensor about the intended termination of the annual License at least 30 days before the end of the then ongoing subscription period. If there is no termination notification, the Licence will be renewed on an annual basis of the subscription terms specified in the Order.
17.2 If the End User fails to comply with any of the provisions of this Agreement, including adherence to Third-Party Software’s terms and conditions (as regularly updated), the Licensor shall be entitled to terminate (ontbinden) this Agreement, in whole or in part, effective immediately, without prejudice to any entitlement or legal remedy open to the Licensor in such eventualities.
17.3 If any provider of Third-Party Software terminates a licence granted to Licensor, the Licensor shall be entitled to terminate (opzeggen) this Agreement effective immediately under condition it, at its own discretion, refunds to the End User through the Reseller a prorated portion of any unused, prepaid subscription Fees paid by End User.
17.4 Immediately upon termination of the Licence granted under this Agreement, for whatever reason, the End User must at its own cost (i) cease permitting access to and procure that all Authorized Users immediately cease all use of the Minit Product, (ii) delete, destroy or return all copies of the Minit Product from Devices and other systems, and (iii) provide the Licensor with written certification that it has destroyed all copies of the Minit Product in its possessions, custody or control not later than within 10 days after termination of this Agreement.
17.5 All Licence rights will cease upon termination of this Agreement. The End User agrees that upon termination of this Agreement for any reason, the Licensor may take any legal actions or implement any technical solution so that the Minit Product hereunder does not operate any longer.
17.6 Use of the Minit Product after termination of the Agreement is prohibited and the Licensor may claim the unjust enrichment from the End User.
17.7 The End User will reimburse the Licensor for any reasonable legal fees and other costs and expenses incurred by the Licensor in collecting past due amounts. Notwithstanding Licensor’s other rights and remedies, including the right to request specific performance or to claim damages or statutory commercial interest (wettelijke handelsrente), the Parties agree that the amount of reimbursement shall be deemed a contractual penalty.
17.8 To avoid any doubts, in case of termination of this Agreement for any reason, save for termination under Section 17.3, the End User is not entitled to any refund of Fees paid hereunder.
17.9 All provisions of this Agreement relating to Licensor’s ownership of the Minit Product (Section 5.1), limitations of liability (Section 11), disclaimers of warranties (Section 7.3), confidentiality (Section 14), waiver (Section 20.9) and governing law and jurisdiction (Section 20.3) and any other provisions that by their nature are intended to survive termination of this Agreement shall survive the termination of this Agreement.
18 Compliance with laws
18.1 The End User agrees not to export, re-export or license any Minit Product to any parties located in any countries prohibited under United States and/or European Union embargoes or sanctions programs maintained by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or otherwise prohibited under Applicable Law regarding export control (collectively, the “Export Control Laws”). The End User agrees at all times to comply with the Export Control Laws. In addition, the End User agrees that it will not export, re-export or license any Minit Product to any parties that are named as a “Specially Designated National” or “Blocked Person” as designated by the OFAC (which is currently published under the Internet address http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx). The End User hereby acknowledges and certifies to Licensor that it understands that the Minit Product and its components and related technology may be subject to the Export Control Laws which may include, without limitation: (i) U.S. export regulations governing the export, transfer, or re-export of U.S. manufactured products, and products containing U.S. components, Minit Product, or technology as set forth in the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 772 et seq.; and (ii) U.S. regulations and laws restricting U.S. companies from doing business with certain embargoed countries and entities as set forth in statutes, executive orders, and the regulations promulgated by the Office of Foreign Assets Control (OFAC), 31 C.F.R. §§ 500 et seq., as amended from time to time. Without limiting the foregoing, the End User certifies that it will not use, or allow the use of, the Minit Product in support of exploration or production for deep-water, Arctic offshore, or shale projects: (1) that have the potential to produce oil in the Russian Federation, or in maritime area claimed by the Russian Federation and extending from its territory, and that involve any person determined to be subject to Directive 4 under U.S. Executive Order 13662 or any earlier version thereof, their property, or their interests in property; or (2) that are initiated on or after January 29, 2018, that have the potential to produce oil in any location, and in which any person determined to be subject to this Directive 4 under U.S. Executive Order 13662 or any earlier version thereof, their property, or their interests in property has (a) a 33 percent or greater ownership interest, or (b) ownership of a majority of the voting interests.
18.2 The End User will indemnify, defend and hold harmless the Licensor and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from End User’s failure to comply with any Export Control Laws.
19 Recordkeeping and Audit
19.1 While this Agreement is in effect and for two (2) years after the effective date of its termination, upon request by Licensor but not more than twice per calendar year, the End User shall conduct a self-audit of its use of the Minit Product and its compliance with its obligations under this Agreement and, within ten (10) Business Days after receipt of such request, submit a written statement to Licensor verifying that it is in compliance with the terms and conditions of this Agreement.
19.2 The Licensor shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an on-premise audit of End User’s compliance with this Agreement. The Licensor’s written request for audit will be submitted to End User at least 10 days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to End User’s business. If the audit reveals an underpayment of fees by End User of more than ten percent (10%), then notwithstanding any rights or remedies available to Licensor in respect of such non-compliance, the End User shall reimburse the Licensor for the expenses incurred by Licensor in conducting the audit. Further, if the results of such audit reveal that the End User is not in material compliance with its obligations under this Agreement, the Licensor may terminate (ontbinden) this Agreement effective immediately.
20 General
20.1 The Order forms an integral part of this Agreement and shall be read as one document. The Order shall prevail in case of discrepancy between the Order and the Agreement.
20.2 Neither Party will have the right to assign the Agreement, in whole or in part, without the other Party’s prior written consent.
20.3 Save for relationships described in Section 8.2, the Agreement is governed by and construed in accordance with the laws of the Netherlands. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby specifically excluded. All disputes arising out of or in connection with the Agreement shall be finally settled by the courts of Amsterdam, the Netherlands.
20.4 If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, that provision to the extent permitted by law shall be severed from this Agreement and shall not affect the remaining provisions hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
20.5 The End User shall notify the Licensor in writing, without undue delay, of any changes in the information contained in the Agreement, or any changes affecting the End User’s identity or legal status, or any significant facts and changes that relate to or might have a substantial impact on its transactions or business relationship with the Licensor or the End User’s ability to fulfil its obligations towards the Licensor or of which the Licensor could reasonably be expected to be informed. The End User shall submit documents evidencing such changes and other information as the Licensor may reasonably request. Any change shall become effective against and binding on the Licensor on the Business Day following receipt of such notification, notwithstanding any information contained in any public register. The End User is responsible for any loss or damage incurred by the Licensor or the End User arising out of the failure of the End User to duly and promptly notify the Licensor of such changes.
20.6 The End User agrees that the Licensor shall be entitled to collect data used or gathered in or by the Minit Product or in relation therewith, for purposes of development and enhancement of the Minit Product. This excludes those data, which are according to the GDPR considered personal data.
20.7 Nothing in this Agreement shall create a partnership or a corporation between the Parties, nor deem either Party the agent of the other Party for any purpose.
20.8 The Licensor may unilaterally change the terms and conditions of this Agreement and the End User shall be informed of such changes. The End User, by clicking the “Accept” option, accepts the changed terms and conditions of this Agreement; otherwise the End User shall be unable to continue using the Minit Product or install or download the updated version of the Minit Product.
20.9 No waiver by either Party of any breach or default of the other Party in performing its obligations under the Agreement shall be deemed or construed to be a waiver of any other breach or default by the other Party of the same or any other obligation hereunder. No waiver of any rights under the Agreement shall be effective unless in writing and signed by the Party purporting to give such waiver.
20.10 All notices shall be made in writing in English by email and/or registered mail to the address as set out in the Order.
ANNEX 1: MINIT PRODUCT DESCRIPTION
Minit Product is a software for the analysis of a large number of business processes („Minit“). Minit can utilize the records stored in the majority of enterprise information systems such as LOB, CRM, ERP or BPM tools. Minit technology can speed up the process analysis several times, by using the combination of the latest data-processing algorithms and techniques. Minit automatically creates process models and displays the communication within business processes. Minit also clearly visualises statistical information and offers the possibility of creating charts according to users’ needs. It also provides the user with advanced analytical functions using a wide range of options for filtering and animations of the progress of recorded events. Easy detection of the inefficiency of processes is possible thanks to the frequency, time, and procedural indicators as well as your own metrics created via custom metrics.
Main modules of Minit are:
• Process mapMinit Dashboards is a web-based product allowing users to publish the prepared analytical views from Minit and build interactive dashboards on the top of them in web environment. Minit Dashboards functionality allows analyst to publish and access the results of process analysis and monitor actual state online. It enables users to build interactive dashboards with built-in drill down capabilities and gives users flexibility up to the level of self-service process intelligence.
