These general terms (the ‘General Terms’), together with a signed proposal (the ‘Order Form’), a service level agreement (the ‘Service Level Agreement’) and a nondisclosure agreement (the ‘NDA’) form an integral part of the agreement (the ‘Agreement’) between Rignac B.V. (‘Minubia’) and each customer (the ‘Customer’) for Customer’s use of a software application developed by Minubia as defined in the Order Form (the ‘Product’), including cloud services, software, updates, user manuals and documentation provided by Minubia to Customer in connection therewith.
License and Use of the Product
Minubia grants to Customer a non-exclusive and non-transferable right to use the Product as agreed in the Order Form (the ‘License’).
The License concerns Customer’s right to:
use the Product for which it has been developed in accordance with the Agreement;
electronically transmit and store data using the Internet onto a cloud server maintained by Minubia and to have access to this data;
upload the Product’s software to Customer’s administrative system in order to process the instructions incorporated in the Application;
use the Product only and exclusively for the number of users and by the legal entity determined in the Order Form;
use the instruction and documentation materials pertaining to the Product.
The License does not include the disclosure to Customer of source codes, techniques and/or processes incorporated in the Product or the right to copy any part of the Product.
Minubia can regularly make new versions of the Product available through an update link sent to Customer. Customer must then upload the new version within 30 (thirty) days from the date of availability, after which period the old version will be blocked for Customer’s use.
Minubia reserves the right to temporarily make the Product unavailable in the events of (i) late payment of the License Fee (as defined in Paragraph 3.1) by Customer until payment has been received in full, or (ii) suspected illegal use of the Product, including but not limited to, the violation of third party rights.
License Fee and Payment
Customer will pay to Minubia a fee for the License as agreed in the Order Form (the ‘License Fee’).
Minubia may annually adjust the License Fee and shall notify Customer of any change in the License Fee at least two months prior to charging the new License Fee to Customer.
Supplements to the Product will be offered to Customer at additional fees to be agreed between the parties.
Minubia will send Customer a monthly invoice for the License Fee by e-mail, which invoice shall be due and payable within 15 (fifteen) days after the invoice date.
Representations and Warranties
Minubia represents and warrants that the Product is designed for the most commonly used iOS and Android mobile devices. Minubia does not warrant the functioning of the Product on all mobile devices.
During the Agreement any fault in the Product’s software affecting the functionality of the Product will be repaired by Minubia at no cost. However, in the event the Product’s software contains a bug or virus, which does not have an effect on the functionality of the Product, Minubia is not in default of any of its obligations under the Agreement. Minubia will do its utmost to resolve any fault in the following update of the Product’s software.
Minubia represents and warrants that the Product is state-of-the-art and that it will do its utmost to develop updates, which will become available to Customer through an update link send to Customer.
Customer warrants that it shall obtain any and all license required for both parties to legally access and use software with which Minubia interfaces, without infringing any rights of third parties to such software.
Customer represents and warrants that (i) the information it provides in connection with its registration for the Product is accurate and complete, (ii) no content used in connection with the Product and stored by Customer on Minubia’s server is illegal, defamatory, malicious, harmful, or discriminatory, (iii) Customer’s use of the Product complies with all applicable laws, rules and regulations, (iv) Customer will not attempt to circumvent or disable any of the security-related, management, or administrative features of the Product, (v) Customer has obtained all consents and licenses required for both partners to legally access and use all software required for the use of the Product without infringing any third party ownership or intellectual property rights, (vi) and Customer has otherwise taken all necessary steps to legally execute the Agreement.
Intellectual Property Rights
Minubia is the sole owner of the Product and the intellectual property rights thereto. Intellectual property rights include, but are not limited to, copyrights and exclusive rights to patents, trade names and trademarks pertaining to the Product.
With the exception of the use described in Paragraph 2.2 of these General Terms no content, material, information, software, products or services obtained in connection with the Product may be modified, copied, displayed, performed, sublicensed, reproduced, republished, uploaded, posted, transmitted, sold, distributed, researched, recovered, monitored or retrieved in any way, without the prior written permission of Minubia.
Customer shall immediately notify Minubia of any possible infringement of Minubia’s intellectual property rights or claim of third party’s intellectual property rights on Minubia’s server.
Minubia reserves the right to temporarily or permanently make the use of the Product unavailable to Customer in the event of any possible infringement of intellectual property rights by Customer.
Limitation of Liability and Indemnification
The Product is delivered “as is”.
Minubia does not review, inspect or edit any content, data or files stored by Customer or any other user of the Product on Minubia’s server, including but not limited to viruses, worms or any other similar contaminating or destructive features. However, if Minubia suspects that the Product is being used for storage and distribution of any malicious or illegal material, Minubia reserves the right to examine the content.
In no event shall Minubia, its subsidiaries, affiliates or any of their employees, officers, directors, agents or partners be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with (i) Customer’s incorrect use of the Product, including but not limited to the use of the Product in combination with non-compliant or defective hardware, (ii) the delay or inability to use the Product, (iii) modification of the Product, (iv) any incorrect information processed by Customer through the Product, (v) Customer’s omission to upgrade an available new version of the Product, (vi) any loss of information of Customer, or (vii) any damages otherwise arising out of the use of the Product by Customer, with the exception of damages caused due to gross negligence of Minubia.
Customer indemnifies and holds harmless Minubia, its subsidiaries, affiliates and any of their employees, officers, directors, agents and partners, from and against any and all liabilities, expenses, including but not limited to attorney’s fees, and damages arising out of third party claims resulting from Customer’s use of the Product.
Liability of Minubia for damages in connection with Customer’s use will be limited to the monthly License Fee paid by Customer in the month prior to Customer’s liability claim.
Term and Termination
The initial term of the Agreement is agreed in the Order Form and shall commence on the date mentioned in the Order Form. Access to the Product, any services provided in connection therewith will terminate automatically upon termination of the Agreement.
In the event any of the parties wishes to extend the initial term of the Agreement, the other party must be notified 1 (one) month prior to the automatic termination of the Agreement, Neither Customer nor Minubia is under any obligation to extend the Agreement.
Minubia may immediately (and without prior notice) suspend or terminate all or part of the services rendered under the Agreement, including but not limited to access to the Product, and/or terminate the entire Agreement, by sending Customer a written notice of termination if one or more of the following occurs: (i) Minubia discovers that Customer provided Minubia with false information upon entering into the Agreement or that Customer lacked the capacity to enter into the Agreement, (ii) Minubia determines, in its sole discretion, that Customer’s use of the Product is a threat to the security or performance of Minubia network or to any of its other customers or suppliers, (iii) Minubia determines, in its sole discretion, that Customer’s use of the Product is illegal, or that it misappropriates or infringes the property rights of a third party, (iv) Minubia reasonably believes that Customer use of the Product has subjected or will subject Minubia to civil or criminal liability, (v) Customer becomes the subject of an involuntary or voluntary bankruptcy or similar proceeding or Customer assigns all or substantially all of its assets for the benefit of creditors, or (vi) Customer fails to make any payment when due for at least 60 (sixty) days.
On the day of termination of the Agreement (i) Minubia will make the use of the Product unavailable to Customer, which means among others that all data of Customer will be removed from Minubia’s cloud server, (ii) Customer shall cease any use of the Product, and (iii) Customer shall return any and all copies of documentation and materials to Minubia. Customer is not authorized to keep any copy of the Product or parts thereof for administrative purposes, unless Minubia has granted permission thereto in writing. Within 24 hours of the day of termination Minubia will provide Customer with a copy of any and all data that Customer uploaded on or through use of the Product until the day of termination.
Customer acknowledges that no joint venture, partnership, employment or agency relationship exists or arises between Customer and Minubia as a result of the Agreement and the use of the Product. Customer agrees not to act as a representative, agent or employee of Minubia and that Minubia will not be liable for any representation, act or omission of Customer.
Minubia will communicate with Customer by e-mail and any other electronic messaging services. E-mail from Minubia, including but not limited to invoices sent are considered delivered to Customer when sent to the e-mail address provided by Customer in the Order Form or any subsequent change thereof provided by email.
Applicable Law and Jurisdiction
The Agreement and the rights and liabilities of the parties hereunder, shall be interpreted in accordance with the laws of Curaçao, notwithstanding conflicts of law principles. In the event of a conflict on the interpretation of any of the provisions of the Agreement, the parties consent to the exclusive jurisdiction of the courts in Curaçao.