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This Mingma.io Software License Agreement (“Agreement”) is between you and Mingma Financial, LLC (herein, “we” or “Mingma”). If you are agreeing to this Agreement not as an individual person but on behalf of your company or other entity for which you are acting (for example, as an employee), then “you” means your entity and you are binding your entity to this Agreement. Mingma may modify this Agreement from time to time, subject to the terms in Section 11(f) (Changes to this Agreement) below. Mingma and you may be referred to herein collectively as the “Parties” or individually as a “Party.”
The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
By clicking on the “I Agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by using or accessing the Software, you represent that (1) you have read, understand, and agree to be bound by the terms of this Agreement, (2) you are of legal age to form a binding contract with us, and (3) you have the authority to enter into the terms of service personally or on behalf of the entity you have named as the Licensee, and to bind that entity to the terms of this Agreement. The term “you” refers to the individual or legal entity, as applicable, identified as the Licensee when you registered on our website. If you do not agree to be bound by this Agreement, you may not access or use the Software.
1. License.
(a) Your License Rights. This Agreement governs your initial purchase of Mingma’s Software, Support and Maintenance for the Software, and any other Additional Services, as well as any future purchases made by you that reference this Agreement. The Software and its permitted use are further described in the Documentation. The term “Software” includes Documentation unless otherwise specified. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Mingma hereby grants you a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Software solely for your internal business purposes. You may make one copy of the Software solely for back-up, disaster recovery, and testing purposes. Any such copy of the Software: (x) remains our exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
(b) Account Registration. You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made (which may incur fees).
(c) Authorized Users. The total number of Authorized Users may not exceed the number set forth in your Order. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Affiliates and must be within the Scope of Use.
(d) Use Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any
proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; or (i) encourage or assist any third party to do any of the foregoing.
(e) Limited Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Authorized Users.
(f) System Requirements. You are solely responsible for ensuring that your computer systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. We will have no obligation or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by us.
(g) Reservation of Rights. Mingma reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Software.
(h) Delivery. Mingma shall deliver the Software (or Software license keys) electronically, on tangible media, or by other means, in Mingma’s sole discretion.
2. Your Responsibilities.
(a) General. You are responsible and liable for all uses of the Software and Documentation resulting from access provided by you to the Software, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by the licensed entity will be deemed a breach of this Agreement by you. You shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. You (including your Authorized Users) may choose to use or procure other third-party products or services in connection with the Software, or implementation, customization, training or other services. Your receipt or use of any third-party products or services is subject to a separate agreement between you and the third-party provider. If you enable or use third-party products or services with the Software, you acknowledge that the third-party providers may access or use your data as required for the interoperation of their products and services with the Software. This may include transmitting, transferring, modifying or deleting your data, or storing your data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of your data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. MINGMA DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
3. Support. We shall provide you with the support services described from time to time on Mingma’s website located at https://Mingma.io for One Year following the Effective Date and thereafter, solely if you purchase additional support services.
4. Fees and Payment.
(a) Fees. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to us by emailing the purchase order number to app.mingma@gmail.com. Other than as expressly set forth in Section 8(a) (IP Indemnification by Mingma), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, expenses and unpaid fees, as applicable. If you fail to make any payment when due, in addition to all other remedies that may be available: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) you shall reimburse us for all costs we incur in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, we may without liability prohibit access to the Software until all past due amounts and interest thereon have been paid.
(b) Taxes. Your Fees under this Agreement are exclusive of taxes and similar assessments payable in respect of the Software. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Mingma’s income. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Mingma any such exemption information, and Mingma will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
(c) Licensing Certifications and Auditing Rights. At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us at law or equity or under this Agreement.
5. Confidential Information. Either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, code, inventions, know-how and business, technical and financial information, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall hold in confidence and not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party (unless such notice legally prohibited) and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. The Receiving Party
acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
6. Intellectual Property Ownership; Feedback.
(a) The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, regardless of the use of terms such as “purchase” or “sale”. Mingma and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Software). You acknowledge that, as between you and and Mingma, Mingma owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation and, with respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Feedback. If you or any of your employees or contractors sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”). Mingma may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Mingma’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. Mingma is not required to use any Feedback.
7. Warranties and Disclaimer.
(a) General Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
(b) Mingma Virus Warranty. Mingma further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Mingma’s sole obligation, is to provide a replacement copy of the Software promptly upon notice. EXCEPT FOR THE WARRANTIES CONTAINED IN THIS SECTION 7, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND MINGMA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MINGMA MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. STATUTORILY REQUIRED WARRANTIES THAT CANNOT BE DISCLAIMED, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
(c) No Reliance. The Software is not intended as a substitute for seeking financial advice concerning your specific circumstances from a qualified attorney, accountant, investment or other professional advisor. The accuracy of information generated by the Software is not guaranteed and you should not rely on this information for any financial decision making.
8. Indemnification.
(a) Mingma Indemnification.
(i) Mingma shall indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that you promptly notifies us in writing of the claim, cooperates with us, and allows us sole authority to control the defense and settlement of such claim.
(ii) If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for you to continue use. If we determine that none of these alternatives is reasonably available, we may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you, and refund any license fees pre-paid by you for use of the Software for the terminated portion of the applicable License Term.
(iii) Our indemnification obligations above do not apply: (1) if the Software is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Mingma product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in Section 8(b) (Indemnification by You) or (z) any third-party deliverables or components contained with the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without our prior written consent.
(b) Indemnification by You. You shall indemnify, hold harmless, and, at our option, defend us, our Affiliates, and their respective officers, directors, members, employees, contractors and insurers, from and against any Losses resulting from any Third-Party Claim based on your (or any Authorized User’s): (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; (iv) modifications to the Software not made by us; or (v) use of any version other than the most current version of the Software or Documentation delivered to you, provided that you may not settle any Third-Party Claim against us unless such settlement completely and forever releases us from all liability with respect to such Third-Party Claim or unless we consent to such settlement, and further provided that we will have the right, at our option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 8 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability.
(a) Waiver of Consequential Damages. IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b)
INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) Cap on Monetary Liability. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE SOFTWARE AND ADDITIONAL SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR $500.00, WHICHEVER IS LESS.
10. Term and Termination.
(a) Term and Renewal. Your License will be for the Term set forth in your Order (the “Term”). After this initial Term, this Agreement shall continue indefinitely until terminated in accordance with this Agreement. If you want to terminate this Agreement, please contact Mingma at app.mingma@gmail.com. If you seek to terminate during the initial Term, you will not be eligible for a prorated refund of any portion of the Fees paid for the Term.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) We may terminate this Agreement, effective on written notice to you, if you fail to pay any amount when due hereunder, and such failure continues more than ten (10) days after our delivery of written notice thereof;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate and you shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to us that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination, or entitle you to any refund.
(d) Survival. This Section 10(d) and Sections 4, 5, 6, 7, 8, 9, 11, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Mingma Financial, LLC, 4552 Cape Charles Dr, Plano, Texas, USA 75024, Attn: Mingma.IO. Your notices to us will be deemed given upon our receipt.
(c) Force Majeure. Neither Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, such as a flood, fire, natural disaster, strike, blockade, war, act of terrorism, explosion, riot, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
(d) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Changes to this Agreement. We may modify the terms and conditions of this Agreement (including Mingma Policies) from time to time, with notice to you in accordance with Section 11(b) or by posting the modified Agreement on our website. Together with notice, we will specify the effective date of the modifications. Typically, when we make modifications to the main body of this Agreement, the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 10(a) (Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
(g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in the city of Dallas and County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(h) Assignment. You may not assign or transfer any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent, provided that you may assign this Agreement in its entirety (including all Orders) without our prior consent to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, subject to your providing us with prompt written notice of the assignment and, subject to the assignee agreeing in writing to assume all of your obligations under this Agreement. Any purported assignment, transfer, or delegation in violation of this Section is null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
(i) Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, breach by you of Section 1(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
12. Definitions.
(a) “Additional Services” means Services provided by Mingma to you that are in addition to providing you the Software and Documentation, such as Support and Maintenance or other services related to the Software, as identified in an Order.
(b) “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
(c) “Authorized User” means your employee or contractor whom you permit to access and use the Software and/or Documentation pursuant to your license hereunder.
(d) “Confidential Information” has the meaning set forth in Section 5.
(e) “Documentation” means Mingma’s user manuals, handbooks, and installation guides relating to the Software provided by us to you, either electronically or in hard copy form/end user documentation relating to the Software available at https://mingma.io
(f) “Feedback has the meaning set forth in Section 6(b).
(g) “Losses” has the meaning set forth in Section 8(a)(i).
(h) “Mingma Policies” means our Acceptable Use Policy, Privacy Policy, Support Policy, and (unless otherwise specified) any other policies or terms referenced in this Agreement. These policies may be found at https://mingma.io.
(i) “Notice” has the meaning set forth in Section 11(b).
(j) “Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.
(k) “Software” means the product described in Exhibit A in object code format, including any Updates provided to you pursuant to this Agreement.
(l) “Term” has the meaning set forth in Section 10(a).
(m) “Third Party Claim: has the meaning set forth in Section 8(a)(i).
(n) “Third-Party Products” means any third-party products described in Exhibit A provided with or incorporated into the Software, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
(o) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that we generally make available free of charge to all licensees of the Software.
EXHIBIT A
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
1. DESCRIPTION OF SOFTWARE: [DESCRIPTION, INCLUDING CURRENT SOFTWARE VERSION AND RELEASE NUMBER IF APPLICABLE]
2. FEES: [FEES AND CORRESPONDING TERM LENGTH, PAYMENT REQUIREMENTS, INCLUDING INVOICING AND ANY RENEWAL FEE NOTIFICATION PROCESS OR RENEWAL FEE INCREASE LIMITATIONS]
3. AUTHORIZED USERS: [NUMBER]
4. THIRD-PARTY PRODUCTS: [DESCRIPTION, FLOW THROUGH PROVISIONS, URL LINKS TO OPEN SOURCE LICENSES]
5. SUPPORT: [DESCRIPTION]