Master Services Agreement
This Master Services Agreement governs the procurement and use of Mintec Services and will be incorporated into each Order Form for Mintec Services to the exclusion of any other terms and conditions. Mintec may prepare an Order Form for a prospective Customer specifying the Services and associated matters. The Customer may make an offer to purchase such Services on the terms and conditions of this Master Services Agreement by signing and returning the Order Form Mintec may accept an Order Form by (i) acknowledging acceptance of the Order Form in writing or (ii) providing Authentication Credentials to access the Services, at which point the contract between the Customer and Mintec will come into existence. In the event Mintec agrees more than one Order Form with the same Customer, then each Order Form constitutes a separate agreement and termination of any one Order Form shall not affect termination of any other Order Form (although this shall not prevent more than one Order Form being subject to termination if termination circumstances apply to them). If Mintec offers and the Customer accepts a free trial of Mintec Services, then the applicable provisions of this Master Services Agreement will also govern that free trial. This Master Services Agreement is drafted in the English language. Any notice given under or in connection with an Agreement shall be in English and all other documents provided under or in connection with an Agreement shall be in English, or accompanied by a certified English translation. In the event of any conflict the English language version of this Master Service Agreement shall prevail.
1.1 The following expressions shall have the following meanings in an Agreement:
Acceptable and Fair Use Policy means Mintec’s Acceptable and Fair Use Policy as may be updated from time to time and made available at https://www.mintecglobal.com/Acceptable_Use_Policy.pdf
Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party; and Control means for these purposes control of greater than fifty percent of the voting rights or equity interests of a party.
Authorised Affiliate means an Affiliate of the Customer identified and listed as an Authorised Affiliate on the Order Form.
Agreement means this Master Services Agreement as incorporated into an Order Form.
Authentication Credentials means account usernames and passwords and other means of identification provided by Mintec to the Customer to be used to identify Authorised Users.
Authorised User means a named user identified and listed on the Authorised User Schedule in the Order Form or as agreed by Mintec in accordance with clause 4.5(e), being an individual employee or officer of the Customer or an Authorised Affiliate.
Controller, Data Subject, Personal Data Breach, Personal Data, Process and Processor shall be interpreted in accordance with applicable Data Protection Law.
Customer means the Customer purchasing Services from Mintec as specified on an Order Form.
Customer Content means commodity pricing and market intelligence data created, obtained or procured by the Customer and imported to the Services.
Customer Data means any and all data, information and content uploaded, inputted or installed by the Customer, Authorised Users, or Mintec on the Customer's behalf for the purpose of using or facilitating use of the Services, including Customer Content.
Data Protection Law means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 and all laws and regulations applicable to the processing of Personal Data under or in relation to an Agreement.
Documentation means the specification and technical and user documentation for the Services made available to the Customer by Mintec, as updated from time to time, accessible via logging into mintecglobal.com or through the applicable Service.
Internal Use means accessing the Content during the Services Term for the Customer’s internal business purposes only, specifically excluding any use, distribution or communication of the Content by or to anyone other than an Authorised User.
Mintec means Mintec Limited, a company incorporated and registered in England and Wales with company number 02138301 whose registered office is at Unit Q, Gloucester House, Bourne End Business Park, Cores End Road, Bourne End SL8 5AS, UK.
Monthly Uptime means the total time the Services are available each month, calculated by subtracting from 100% the percentage of minutes during the month when the Services are not available, except for (i) maintenance carried out during the 48 hour scheduled maintenance window occurring during the last weekend in each month and (ii) non-availability caused by matters outside Mintec’s reasonable control.
Order Form means the ordering document or online order specifying the Services to be provided to the Customer.
Service Credit means the remedy specified in Annex 2 in respect of a failure by Mintec to meet an applicable Monthly Uptime target.
Services means the Services made available to the Customer by Mintec through mintecglobal.com or any other website or platform notified to the Customer by Mintec from time, as more particularly specified on an Order Form and the Documentation.
Support means remote technical support and maintenance services performed by Mintec for the Customer as specified on an Order Form and in the Documentation.
Services Term means the period of time during which the Customer may access the Services as specified on the Order Form and an Agreement.
User Subscriptions means the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with an Agreement.
1.2 Any reference to a statutory provision shall include that provision as from time to time modified or re-enacted, provided that in the case of modifications or re-enactments made after the date of an Agreement the same shall not have effected a substantive change to that provision.
1.3 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.4 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2 FREE TRIAL
2.1 If Mintec offers and the Customer accepts a free trial of certain Services, Mintec will make the applicable Services available to the Customer on a trial basis free of charge until the earlier of the end of the free trial period or the Customer executing an Order Form for a paid version of the applicable Services. Mintec may notify the Customer of additional terms and conditions applicable to a free trial and the Customer accepts such terms and conditions shall be legally binding.
2.2 The Customer agrees and acknowledges that all Customer Data may be deleted at the end of a free trial unless the Customer purchases a paid version of the applicable Services. The Customer is solely responsible for exporting any Customer Data before the end of a free trial or such Customer Data may be permanently lost.
2.3 The Customer agrees and acknowledges during a free trial any Services are provided “as-is” and without any warranty and Mintec may at its sole discretion terminate a free trial at any time.
3 MINTEC’S RESPONSIBILITIES
3.1 Subject to the Customer purchasing User Subscriptions in accordance with the terms and conditions of an Agreement, Mintec shall make the Services available to the Customer and Authorised Affiliates on a non-exclusive, non-transferable basis during the Services Term solely for the Customer's internal business operations. Mintec warrants that (a) it shall comply with all laws and regulations applicable to its performance hereunder and (b) the Services will conform in all material respects to the Documentation. The Customer shall be responsible for controlling the use of the Services by Authorised Affiliates and Authorised Users in accordance with the terms of an Agreement and shall be liable for the acts or omissions of Authorised Affiliates and Authorised Users.
3.2 Mintec will provide the Customer with a Service Credit in the event Mintec does not meet a Monthly Uptime target specified in Annex 2. All Service Credits will be added to the end of the current Services Term. In the event the Monthly Uptime is (a) less than 95% in three consecutive months or (b) less than 90% in any month, the Customer shall have the option to reject any applicable Service Credit and instead terminate the Agreement and receive a pro rata refund of any prepaid fees for the remainder of the current Services Term after the date of such termination. The provisions in this clause 3.2 set out the Customer’s sole and exclusive right and remedy and Mintec’s entire obligation and liability concerning the availability of the Services and the Monthly Uptime target.
3.3 Mintec will provide the Customer with the level of Support set out on an Order Form and as described in the Documentation, provided the Customer has fully paid any fees applicable to the Support.
3.4 Mintec shall be entitled to change the Services during the Services Term unless such changes determine, directly or indirectly, a material reduction of the functionalities or characteristics of the Services as originally provided at the effective date of the Order Form. Mintec shall be entitled at any time to change or update the Services in case of: (i) improvements or updates necessary to fix defects, bugs, malfunctioning or errors of the Services; and/or (ii) to cure security vulnerabilities; and/or (iii) the application of any new laws, regulations, acts or orders of the authorities.
3.5 Mintec accepts no responsibility for use of the Services contrary to Mintec's instructions or the Documentation. Mintec does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation or the information obtained by the Customer through the Services will meet the Customer's requirements. Mintec is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.6 The existence of an Agreement shall not prevent Mintec from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Services which are similar to those provided under an Agreement.
3.7 Mintec may subcontract or delegate to a third party the performance of the Services and Support, provided Mintec retains management of such subcontractors or third parties and is otherwise responsible for their conduct and the performance of the Services and Support.
4 CUSTOMER USE OF THE SERVICES
4.1 The Services are purchased as subscriptions and subject to the usage limits contained in an Agreement and the Acceptable and Fair Use Policy. The Customer agrees and acknowledges that Mintec may require Authorised Users to agree to Mintec’s Acceptable and Fair Use Policy as part of the sign-up process and prior to the provision of Authentication Credentials.
4.2 The Services allows Authorised Users to access, display, manipulate and manage Content and import, manipulate and manage Customer Content for Internal Use only. The Customer’s right and ability to use the Services and view and extract Content and import Customer Content will depend on the type and level of Service purchased by the Customer as identified on an Order Form and described in the Documentation.
4.3 In the event the Customer purchases API access as part of the Services, such access will be only provided via the server IP address(es) identified on an Order Form or the Documentation. Mintec will monitor API access for the purposes of traffic management and to ensure the integrity of the Services and monitor compliance with the Agreement. Mintec reserves the right to impose limitations on API call usage. Unless an alternative figure is agreed and specified on the Order Form the maximum number of API calls that may be made in any 24 hour period is 10,000 and no more than 10 per second. In the event the Customer exceeds applicable API call limits, Mintec reserves the right to suspend the Customer’s access to the Services and limit API calls until the reason for the excess calls has been identified and resolved.
4.4 The Customer shall (a) comply with all applicable laws and regulations with respect to its activities under this Agreement; (b) obtain and maintain all necessary third party licences and consents in relation to the Customer network and system and Customer Data; and (c) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Mintec's data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
4.5 In relation to the Services and Content, the Customer agrees and undertakes that (a) it will ensure that Authorised Users only access and use the Services, Content or Documentation in accordance with the terms and conditions of the Agreement (including all restrictions on use of Content) and the Acceptable and Fair Use Policy and the Customer shall be responsible for any Authorised User's breach of the Agreement or the Acceptable and Fair Use Policy; (b) it will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, Content or Documentation and notify Mintec promptly of any unauthorised access or use; (c) the maximum number of Authorised Users that access and use the Services, Content or Documentation shall not exceed the number of User Subscriptions it has purchased from time to time (d) it will not allow or suffer any User Subscription or Authentication Credentials to be shared or used by more than one individual; (e) a User Subscription may only be reassigned with Mintec’s prior written agreement and only in its entirety to a new individual replacing the prior user always provided the prior user must no longer use the Services, Content or Documentation (f) each Authorised User shall keep his or her Authentication Credentials secure and confidential; (g) it shall not access the Services, Content or Documentation for the purpose of building a competitive product or service or copying its features or user interface; (h) it shall not use the Services or Content, or permit the Services or Content to be used, for purposes of product evaluation, benchmarking or other comparative analysis of the Services or Content that is to be made publicly available; (i) it shall not permit access to the Services, Content or Documentation by a direct competitor of Mintec; (j) it shall permit Mintec to audit the Customer’s use of the Services or Content using technical and other means, including but not limited to embedding technology within the Services to monitor the use of the Services, Content or Authentication Credentials; and (l) it shall maintain a written, up to date list of current Authorised Users.
4.6 Mintec may suspend the Customer’s access to the Services or Content if Mintec has reasonable evidence the Customer’s use of the Services or Content is in breach of this Agreement or otherwise poses possible serious risks to Mintec’s systems or the Services. Mintec will provide advance notice of such suspension when reasonably practicable. If Mintec has reasonable grounds to suspect the Customer has improperly used Content contrary to the terms of this Agreement, the Customer agrees to permit and cooperate with an inspection by an external third party organisation agreed upon by both parties (such agreement not to be unreasonably delayed or withheld) at the Customer's location and during reasonable hours and at reasonable intervals, to include all computer systems on which the Content may be stored and processed for purposes of establishing compliance with the terms of this Agreement. If an inspection identifies misuse of Content then the Customer shall pay the costs of the external third party organisation.
4.7 Mintec may suspend an individual Authorised User’s access to the Services or Content if Mintec has reasonable evidence the Authorised User is using or has used the Services or Content in breach of the Acceptable and Fair Use Policy. Mintec shall promptly inform the Customer of any such suspension and if the relevant Authorised User and/or Customer are unable to establish use in conformance with the Acceptable and Fair Use Policy or (if applicable) remedy an acknowledged breach that is capable of remedy within a reasonable time, then Mintec may terminate the Authorised User’s access to the Service or Content.
4.8 The Customer shall maintain detailed, accurate and up-to-date books, records, network and server logs (collectively Records) in connection with its use of the Services and Content and all related activities under this Agreement during the Services Term and for a period of one (1) year thereafter. Such Records shall also include at a minimum the identities of all Authorised Users. The Customer shall permit Mintec and its third-party representatives, on reasonable notice during the Customer’s normal hours of operation to gain access to, and take copies of, the Records for the purpose of auditing the Customer’s compliance with its obligations under this Agreement including any restrictions on use of the Services and Content. Such audit rights shall continue for one year after termination or expiry of this Agreement. The Customer shall give all necessary assistance to the conduct of such audits during the term of this Agreement and for a period of one year after termination or expiry of this Agreement. If an audit undertaken by Mintec reveals that the Customer has underpaid any fees which should have been paid in respect of the Services, then without prejudice to Mintec's other rights or remedies, the Customer shall pay to Mintec an amount equal to such underpayment and if the underpaid fees are in excess of five percent (5%) of the fees specified on an Order Form then the Customer shall pay the reasonable costs and expenses associated with the audit.
4.9 Any failure of the Customer to comply with the obligations set forth in this clause 4 shall be a material breach of this Agreement.
5 CONTENT AND CUSTOMER CONTENT
5.1 Mintec may make available Content through the Services. The Customer acknowledges that except as set out in an Agreement it accesses such Content solely at its own risk. Mintec makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the Customer’s use of the Content. Mintec cannot guarantee the continued availability of particular Content.
5.2 Where Mintec agrees to obtain information from a third party data or content provider on behalf of the Customer, the Customer agrees that Mintec shall be appointed as its agent to subscribe to such information on behalf of the Customer. The Customer acknowledges that Mintec may not be able to obtain such information, and that any such source of information may be withdrawn at any time.
5.3 The Customer agrees and acknowledges there may be additional restrictions on the use of Content as set out in the third party licence or other terms and conditions applicable to such content. Mintec shall inform the Customer of, and the Customer agrees to fully comply with, any terms and conditions applicable to Content.
5.4 The Customer acknowledges that Mintec is providing the Services and any Content to the Customer’s Authorised Users alone. Except as is expressly set out in an Agreement, the Customer must not distribute or otherwise provide any access to the Content to any unauthorised employee, officer, consultant, agent or independent contractor or any third party. Without limiting the foregoing and except as expressly provided on an Order Form, the Customer must neither (i) distribute or otherwise provide access to any summaries or materials adapted or derived from Content unless the receiving party has a right or entitlement to access or use the original Content compatible with receipt of such summaries or materials, nor (ii) enter any contractual or other arrangement relating directly or indirectly to Content unless the other party has a right or entitlement to access or use the Content compatible with such arrangement.
5.5 Mintec may remove or limit access to Content which violates applicable law or third-party rights. The Customer will comply with Mintec’s reasonable requests to remove such Content from the Customer’s systems.
5.6 The Customer agrees and acknowledges the Content is open to interpretation and typographical error and Mintec is not responsible for the accuracy of Content.
5.7 The Customer shall defend, indemnify and hold harmless Mintec against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim by a third party Content provider that the Customer’s use of third party Content has breached (a) applicable law; (b) any terms and conditions of which Mintec makes the Customer aware; or (c) an Agreement.
5.8 In the event the Customer purchases a level of Service that entitles the Customer to import Customer Content to the Services, the Customer will have the right to use the functionality contained within the Services to import Customer Content to the Services, in accordance with the Documentation and any limitations contained on an Order Form. Mintec may provide the Customer with discretionary assistance to import and manipulate Customer Content and the Customer agrees such assistance is provided without additional charge and on an “as is” basis and without warranty of any kind. The Customer agrees the Services do not provide storage or back-up functionality and the Customer is responsible for maintaining sufficient copies and back-ups of all Customer Content uploaded to the Services. Without limiting any other provision of this Agreement, the Customer is solely responsible for ensuring (a) it has all necessary rights, licenses and consents to import, display, manipulate and manage Customer Content within the Services; (b) Customer Content complies with all applicable laws; (c) Customer Content does not contain personal data; (d) Customer Content complies with the Acceptable and Fair Use Policy.
6 FEES AND PAYMENT
6.1 The Customer must pay all fees specified on an Order From in accordance with the payment terms on the Order From. All fees are exclusive of any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, which, where applicable, shall be charged in addition to the fees and shall be payable by the Customer.
6.2 The Customer shall make all payments under an Agreement without withholding or deduction of, or in respect of, any tax, levy, impost, duty, charge or fee unless required by law. If any such withholding or deduction is required, the Customer shall pay to Mintec such additional amount as will ensure that Mintec receives the same total amount that it would have received if no such withholding or deduction had been required.
6.3 All fees in respect of the Services are based on User Subscriptions purchased and not actual usage and payment obligations are non-cancellable and fees non-refundable except as expressly set out in an Agreement.
6.4 If Mintec has not received payment within the period specified on the Order Form, and without prejudice to any other rights and remedies: (a) Mintec may on 30 days’ notice to the Customer, without liability to the Customer, disable the Customer's Authentication Credentials and access to all or part of the Services and Mintec shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on a daily basis at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower on such due amounts, commencing on the due date and continuing until fully paid, whether before or after judgment.
7 PROPRIETARY RIGHTS
7.1 The parties agree and acknowledge that all intellectual property rights belonging to a party prior to the execution of an Agreement or created by the parties regardless of the execution of an Agreement shall remain vested in that party.
7.2 The Customer acknowledges and agrees that Mintec or its licensors own all intellectual property rights in the Services, Documentation or Content. Mintec shall own any suggestions, enhancement requests, recommendations, or other feedback provided by the Customer or Authorised Users relating to the Services or Documentation. Except as expressly stated herein, nothing in an Agreement shall operate so as to transfer or assign or grant any other rights or licences to any intellectual property rights in the Services, Documentation or Content.
7.3 For the avoidance of doubt, the Customer is not granted a licence to use the Services except to the limited extent any Services require the installation of software on the Customer’s systems. The Customer must not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and before undertaking any activity allowed by applicable law to obtain the information necessary to create an independent program which can be operated with the Services, the Customer shall contact Mintec to request the relevant interoperability information (which Mintec may provide subject to further conditions) and then only use such information for the purpose of achieving the desired interoperability and not, in any event, to create a program which is substantially similar to the Services.
8.1 “Confidential Information” means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after the effective date of an Agreement by or on behalf of the disclosing party (hereinafter, "Disclosing Party") to the receiving party (hereinafter, "Receiving Party") in writing, orally, through visual means, or by the Receiving Party's evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is now or at any time after the effective date of an Agreement, owned or controlled by the Disclosing Party. Confidential Information shall include the Customer Data; the Content; the fees; business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
8.2 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law, or any legal or regulatory authority, any Confidential Information concerning the other party (or of any member of the group of companies to which the other party belongs) which may have come to its knowledge and each of the parties shall use all reasonable endeavours to prevent the publication or disclosure of any Confidential Information.
8.3 Unless otherwise specified on an Order Form the Customer permits its name to be added to Mintec’s Customer list, and for Mintec to refer to the Customer as a Customer and user of Mintec’s services in its marketing and public relations materials, including, the use of the Customer’s logo (whether or not a registered trade mark) and name.
9 MUTUAL INDEMNIFICATION
9.1 The Customer shall defend, indemnify and hold harmless Mintec against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer Data or Customer’s or User’s breach of the Acceptable and Fair Use Policy, provided that: (a) the Customer is given prompt notice of any such claim; (b) Mintec provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and (c) the Customer is given sole authority to defend or settle the claim.
9.2 Mintec shall defend the Customer against any claim that the Services or Documentation infringes any United Kingdom patent, or worldwide copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) Mintec is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to Mintec in the defence and settlement of such claim, at Mintec's expense; and (c) Mintec is given sole authority to defend or settle the claim.
9.3 In the defence or settlement of any claim under clause 9.2, Mintec may procure the right for the Customer to continue using the Services or Documentation, replace or modify the Services or Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate an Agreement and provide the Customer with a pro rata refund of any prepaid fees for the remainder of the current Services Term after the date of such termination, but without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
9.4 In no event shall Mintec be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than Mintec; or (b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Mintec; or (c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Mintec or any appropriate authority. 9.5 The foregoing clauses 9.2 to 9.4 states the Customer's sole and exclusive rights and remedies, and Mintec's (including Mintec's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10 DATA PROTECTION
10.1 In the event that Mintec Processes Customer Personal Data under an Agreement, the parties record their intention that Mintec is the Processor and the Customer is the Controller of such Personal Data. Annex 1 to the Master Services Agreement sets out the subject-matter and duration of the Processing of Customer Personal Data, the nature and purpose of the Processing, the type of Personal Data and the categories of Data Subjects. The parties may amend Annex 1 from time to time by written agreement.
10.2 Each party shall comply with its obligations under applicable Data Protection Law. Except as required by applicable law, Mintec shall Process Customer Personal Data only in accordance with the Customer’s documented instructions and shall not transfer Customer Personal Data outside of the European Economic Area without the Customer’s consent. For the avoidance of any doubt, any configuration of the Services by the Customer shall constitute ‘written instructions’. The Customer warrants that it shall not instruct Mintec to Process Customer Personal Data where such Processing would be unlawful.
10.3 Mintec shall ensure that individuals engaged in the Processing of Customer Personal Data under the Agreement are subject to obligations of confidentiality in respect of such Personal Data. Mintec shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in Processing Customer Personal Data pursuant to an Agreement.
10.4 Mintec may engage such other processors (“Sub Processors”) as Mintec consider reasonably appropriate for the Processing of Customer Personal Data in accordance with the terms of an Agreement (including in connection with support, maintenance and development and the use of third party data centres) provided that Mintec shall notify Customer of the addition or replacement of such Sub Processors and the Customer may, on reasonable grounds, object to a Sub Processor by notifying Mintec in writing within 5 days of receipt of notification, giving reasons for the Customer’s objection. The parties shall cooperate to reach agreement on the engagement of Sub Processors. Mintec shall require all Sub Processors to enter into an agreement compatible with this clause 10 and Mintec shall remain responsible and liable for Sub Processors’ acts and omissions. The current list of Sub Processors is set out in Annex A.
10.5 In the event that any Data Subject exercises its rights under applicable Data Protection Law against the Customer, Mintec shall use reasonable commercial efforts to assist the Customer in fulfilling the Customer’s obligations as Controller following a written request from the Customer. Mintec may charge the Customer on a time and materials basis in the event that Mintec considers, in its reasonable discretion, that such assistance is onerous, complex, frequent or time consuming.
10.6 Upon discovering a Personal Data Breach, Mintec shall notify the Customer without undue delay and shall assist the Customer to the extent reasonably necessary in connection with notification to the applicable supervisory authority and Data Subjects, taking into account the nature of Processing and the information available to Mintec.
10.7 In the event that the Customer consider that the Processing of Personal Data performed pursuant to an Agreement requires a privacy impact assessment to be undertaken, following written request from the Customer, Mintec shall use reasonable commercial endeavours to provide relevant information and assistance to the Customer to facilitate such privacy impact assessment. Mintec may charge the Customer for such assistance on a time and materials basis.
10.8 Unless otherwise required by applicable law, following termination or expiry of an Agreement Mintec shall, at the Customer’s option, delete or return all Customer Personal Data and all copies thereof to Customer.
10.9 Where requested by the Customer, Mintec shall make available all information necessary to demonstrate its compliance with this clause 10 and shall contribute to audits conducted by the Customer or another auditor mandated by Customer.
11 LIMITATION OF LIABILITY
11.1 This clause 11 sets out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other: (a) arising under or in connection with an Agreement; (b) in respect of any use made by the Customer of the Services, Content or Documentation or any part of them; and (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with an Agreement.
11.2 Except as expressly and specifically provided in an Agreement: (a) the Customer assumes sole responsibility for results obtained from the use of the Services, Content or Documentation by the Customer, and for conclusions drawn from such use; (b) Mintec shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Mintec by the Customer in connection with the Services, or any actions taken by Mintec at the Customer's direction; (c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from an Agreement; and (d) the Services, Content and Documentation are provided to the Customer on an "as is" basis.
11.3 Nothing in an Agreement excludes the liability of either party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.3: (a) Mintec shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under an Agreement; (b) except for breach of clause 8 (Confidentiality) or Mintec’s indemnification obligations, Mintec's maximum total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of an Agreement shall be limited to the total fees paid or payable under the Agreement in respect of which the liability arose during the 12 months immediately preceding the date on which the claim arose; and (c) Mintec's maximum total aggregate liability for breach of clause 8 (Confidentiality) or arising from Mintec’s indemnification obligations, shall be limited to 200% of the total fees paid or payable under the
Agreement in respect of which the liability arose during the 12 months immediately preceding the date on which the claim arose.
12 TERM AND TERMINATION
12.1 An Agreement commences on the date stated on the Order Form and continues for the Services Term specified on the Order Form. Except as otherwise specified on the Order Form, Services will automatically renew for additional periods equal to the Services Term, unless either party gives the other notice of non-renewal at least 30 days before the end of the then current Services Term. The Customer must provide such notice of non-renewal by email to firstname.lastname@example.org. Except as otherwise specified on the Order Form, the fees during any renewal Services Term will increase by up to 7% above the applicable fees in the prior Services Term, unless Mintec provides the Customer with written notice of alternative pricing at least 30 days prior to the end of the then current Services Term, in which case the alternative pricing as notified by Mintec shall apply during any renewal Services Term.
12.2 Either party may terminate an Agreement with immediate effect by giving written notice to the other if: (a) the other party commits a material breach of any term of an Agreement which is incapable of remedy or (if such breach is capable of remedy) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3 Mintec may terminate an Agreement with immediate effect by giving written notice to the Customer if there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010) in which a competitor of Mintec obtains an interest in the Customer.
12.4 Upon termination (or expiry) of an Agreement for any reason: (a) the Customer shall immediately pay to Mintec all of Mintec's outstanding unpaid invoices and interest and, in respect of Services which have been performed but for which no invoice has been submitted, Mintec may submit an invoice, which shall be payable immediately on receipt; (b) all rights to use the Services granted under an Agreement shall immediately terminate; (c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; (d) Mintec may destroy or otherwise dispose of any of the Customer Data in its possession unless Mintec receives, no later than ten days after the effective date of the termination of an Agreement, a written request for the delivery to the Customer of the Customer Data, in which case Mintec shall use reasonable commercial endeavours to deliver the Customer Data to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and the Customer shall pay all reasonable expenses incurred by Mintec in returning or disposing of Customer Data; (e) subject as otherwise provided herein and to any rights, obligations or liabilities which have accrued prior to termination, neither party shall have any further obligation to the other under an Agreement; and (f) within 30 days of expiry or termination, the Customer will delete all Content in its possession or under its control and will provide written confirmation of the deletion, unless otherwise agreed with Mintec in writing, or as required by applicable law. For the avoidance of doubt, where applicable law mandates the retention of certain Content beyond the 30 day period, Customer agrees that it shall only be retained to the extent required under such law and shall not be used for any other purposes.
13 NOTICES, DISPUTES, GOVERNING LAW AND JURISDICTION
13.1 Any notice given under an Agreement shall be in writing and shall be delivered by email to the email address as set out on the Order Form or advised by each party to the other from time to time for this purpose, or sent by pre-paid registered post or airmail by a recognised mail carrier (return receipt requested) to the address of the relevant party as set out on the Order Form or to such address as subsequently notified to the other party pursuant to this clause. In the case of email, the notice shall be deemed to have been delivered on acknowledgement by the recipient. In the case of post, the notice shall be deemed to be delivered on the date given on the proof of delivery.
13.2 All Agreements shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts. The parties expressly reject any application to an Agreement of (a) the United Nations Convention on Contracts for the International Sale of Goods, and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.
13.3 An Agreement is not intended to convey a benefit on any person not a party to it and no third party shall have any rights to enforce any of its terms.
14 GENERAL PROVISIONS
14.1 Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations. If the affected party has been prevented from performing its obligations under an Agreement for a period of 60 days (or such other period agreed between the parties in writing), then either party may terminate an Agreement immediately by providing notice to the other party and the provisions of clause 12.4 shall apply. 14.2 Any variation or amendment of an Agreement must be in writing, referenced to this clause
14.2 and signed by an authorised representative of both parties.
14.3 The Customer shall not, without the prior written consent of Mintec, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under an Agreement. Mintec may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under an Agreement.
14.4 If any party fails to rely on its rights under an Agreement or otherwise, that shall not prevent it from relying on those (or similar) rights in the future.
14.5 The provisions of an Agreement and the rights and remedies of the parties under it are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity. No exercise by a party of any one right or remedy under an Agreement, or at law or in equity, shall (save to the extent, if any, provided expressly in an Agreement, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.
14.6 Nothing in an Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or except as set out in clause 5.2 to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.7 If any provision of an Agreement is found by a court or other competent authority to be void or unenforceable that provision shall be deemed to be deleted from an Agreement and the remaining provisions of an Agreement shall continue in full force and effect. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.8 An Agreement (including the documents and instruments referred to in it) supersedes all prior representations, arrangements, understandings and agreements between the parties relating to its subject matter and is the entire complete and exclusive agreement and understanding between the Parties relating to its subject matter. Each party acknowledges that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in an Agreement.
Annex 1 Data Protection
Subject-matter of the Processing of Customer Personal Data:
• Mintec Process Customer Personal Data for the purpose of providing the Services.
• Mintec Process Customer Personal Data for the purpose of providing Support.
Duration of the Processing of Customer Personal Data:
• During the Services Term. After termination of expiry of an Agreement the data may be returned to Customer or deleted at Customer option.
Nature of Processing
Purpose of Processing
Type of Personal Data
Categories of Data Subject
Mintec receive data provided by Customer and uploaded to the Services by Authorised Users where it is stored in a cloud environment.
Use of Services.
Name, email address, telephone number, job title, IP address.
Mintec receive support requests by email or telephone during support hours, log the request in the ticketing system, respond to the request by email or telephone, mark the request as complete, retain the support log for the future development and support of the Services. The Personal Data is deleted from the support log following expiry/termination of an Agreement.
Provision of IT support.
Name, email address, telephone number, job title, IP address.
User support contacts.
Provision of IT support.
Name, email address, telephone number, job title, IP address.
User support contacts.
Annex 2 Service Credits
Less than 95% but greater than 90%
Mintec will make the Services available to the Customer for an additional seven days without charge.
Less than 90%
Mintec will make the Services available to the Customer for an additional thirty days without charge