These Terms are between you and the organization on whose behalf you accept the terms ("you", or "Customer") and Minderest S.L., ("us" or "Minderest").
2. MINDEREST PRICE INTELLIGENCE
Minderest owns and/or maintains and operates application servers that host web-based products and services to provide e-commerce, news, media, and competitor price information. Minderest also owns and distribute webservices API calls that work together with the price intelligence service. Collectively, the offering of these products, services, and software in a business-to-business fashion is the Minderest Price Intelligence ("Minderest Price Intelligence").
3. DESCRIPTION OF SERVICE
You will provide Minderest with a description of your merchandise products, media, or digital content goods (the "Catalog") in the form of one or various RSS feeds, XML files, or other mutually agreed upon format. To use the Minderest Price Intelligence, you must install the webservices API calls within your site to process our price information. Too, you must provide your competitor url list. Subject to the availability of the Minderest Price Intelligence, Minderest will display competitor price information, and/or stock, trends, price opportunities.
4. LICENSE GRANT
Provided you are not in breach of these Terms, Minderest grants you a limited, worldwide, non-exclusive, non-transferable and revocable license to install and use the Minderest Price Intelligence software within your Site(s), and to access competitor price information from the Minderest Price Intelligence. You agree to pay Minderest for use of the Minderest Price Intelligence as specified on the order form. If the account becomes past due, in addition to such other remedies as it may have, Minderest will be relieved of its obligation to perform services under these Terms and the full amount of the contract price will become due and payable. You will reimburse Minderest for all expenses incurred in connection within the collection of amounts payable. If either party commences any litigation arising from or relating to this agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys fees, both at trial and on appeal.
5. LICENSE RESTRICTIONS AND SITE-ONLY USE
The Minderest Price Intelligence is designed to provide competitor price information directly to a single website using a single domain name. Your use of the Minderest Price Intelligence or its software by multiple sites having mutiple domain names is not permitted except by separate arrangement with us. You may not use the Minderest Price Intelligence or its software through an application such as a toolbar, plugin, or other executable code that runs on a user’s computer, or through a standalone digital media player. If specified on the order form, you may use the Minderest Price Intelligence through a mobile application.
You are responsible for your and your users’ compliance with all applicable laws, rules and regulations, if any, related to your use of the Minderest Price Intelligence. You shall not, and shall not allow any third party to: (a) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes the Minderest Price Intelligence or any part thereof or access thereto; (b) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Minderest Price Intelligence, or any part thereof, except for the public API which is released under a FOSS license, or any other Minderest technology, content, data, routines, algorithms, methods, ideas, design, user interface techniques, software, materials, and documentation; (c) remove, deface, obscure, or alter Minderest copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Minderest Price Intelligence or any other Minderest technology, software, materials and documentation; (c) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Minderest Price Intelligence (including, but not limited to, copy or derivative thereof); (d) attempt to hack into or access without authorization any non-site related metrics from the Minderest Price Intelligence platform; (e) create or attempt to create a substitute or similar service or product through use of or access to the Minderest Price Intelligence or proprietary information related thereto; and/or (f) engage in any action or practice that reflects poorly on Minderest or otherwise disparages or devalues Minderest reputation or goodwill.
The Minderest Price Intelligence Software may be modified, or the Minderest Price Intelligence terminated, at any time by Minderest in its sole discretion without notice to you, any user, or any third party. If Minderest decides to terminate the Minderest Price Intelligence, your sole remedy will be to discontinue use of the Service.
8. SERVICE AND SUPPORT
Minderest will, at its sole discretion, (i) provide technical documentation for the Minderest Price Intelligence software (with code examples as available), (ii) offer technical support on an as-available basis through the Customer Dashboard, and (iii) provide updates and news regarding new features, versions, and technology updates. Premium Level customers receive a higher level of support.
9. NO GUARANTEED AVAILABILITY
The Minderest Price Intelligence and software may be subject to temporary shutdowns due to causes beyond our reasonable control, and Minderest will have no liability to you, your customers, or any third party for such temporary shutdowns. Minderest will attempt to notify you of any factor or event that is likely to cause a material interruption in the delivery of Services. Minderest assumes no responsibility for the availability or lack of availability of your site. If any unavailability of the Minderest Price Intelligence causes your site to incur downtime or if you cannot connect to the Minderest Price Intelligence, you may contact Minderest for assistance in resolving the issue. Minderest has no obligation to assist you, but may do so in its discretion, and in any event Minderest has no obligation to assist you with respect to problems with the Minderest Price Intelligence, its software, or the interface to the extent such problems are caused by (a) a malfunction of computer hardware or third party materials for which you have maintenance, support, and/or operational responsibility; or (b) any act of you or a third party not acting on behalf of Minderest.
10. REQUIREMENTS FOR USE OF THE MINDEREST PRICE INTELLIGENCE
If you use the Minderest Price Intelligence, you must (i) offer the initial and incremental catalog data feed and user behavior data in RSS Feed, XML files, or other mutually agreed upon format, (ii) implement and maintain your own site, (iii) integrate Minderest software into your site such that the Minderest Price Intelligence functions as intended together with your site, (iv) implement and maintain connectivity between your site and the Minderest Price Intelligence.
11. PROVISION AND LIMITATIONS
Minderest uses proprietary algorithms and datasets which match different goods and services together and against each other. Minderest has, of necessity, made assumptions as part of those algorithms and datasets, and Customer may agree or disagree with such assumptions. Nevertheless, Customer represents and warrants that it uses the Minderest Service, the Website and the data on the basis that it has no objections to the assumptions made with respect to such algorithms (which may include assumptions as to matching rules, averaging rules and availability rules) and it has no objection to the limitations of any algorithms, assumptions or datasets.
12. MINDEREST TRADEMARKS AND PUBLICITY
Minderest owns registered and unregistered trademarks and service marks, including without limitation "MINDEREST". No license is granted to you to use any mark of Minderest for any purpose except as set forth in this section.
14. TERM AND TERMINATION
You may terminate these Terms for any reason or for no reason by notifying Minderest in writing via email with at least thirty days notice. Minderest may terminate your use of the Service at any time. Within two (2) business days of termination, (i) all rights awarded to You as part of these Terms shall terminate, and (ii) you will remove all webservices software pertaining to Minderest from your site(s) and delete any and all references to Minderest and Minderest marks from them.
Minderest is not responsible for any foreign, U.S. federal, state, local, municipal, or other governmental taxes, duties, levies, fees, excises, or tariffs, owed by You arising as a result of or in connection with the provision of the Minderest Price Intelligences. You must pay all applicable sales, use, or value added taxes or tariffs applied by any national, state, provincial, or local jurisdiction to which you are subject that arise from or are related to these Terms. Each party will bear responsibility for payment of any taxes applicable to its own income and activities.
You acknowledge that your breach of any of the terms and conditions contained herein may cause irreparable harm to Minderest, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Minderest may be legally entitled, Minderest shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants, or other agents.
You warrant and represent that: (a) all information provided by you to Minderest in connection with your registration for and use of the Minderest Price Intelligence is true and accurate to the best of your knowledge; (b) you have full power and authority to enter into and perform your obligations under these Terms, and entering into these Terms is not a breach of or contrary to any other agreement or arrangement entered into by you; (c) your site(s) and their content do not; (i) infringe any Intellectual Property Rights of any third party, (ii) constitute defamation, slander, libel or obscenity, (iii) result in any consumer fraud, product liability, or breach of contract to which you are a party, or cause injury to any third party, (iv) promote violence or contain hate speech, (v) promote any unlawful activity, or (vi) violate any applicable law, statute, ordinance, or regulation; (d) There are no lawsuits or other legal proceedings pending, or to the best of your knowledge threatened, which may have a material adverse effect on your ability to fulfill your obligations under these Terms; and (e) you will perform all obligations under these Terms, and use the Minderest Price Intelligence, only in accordance with applicable laws.
You agree to indemnify, defend and hold harmless Minderest and its affiliates (including any officers, directors or employees thereof) from and against any claims arising from or related in any way to (1) Customer’s breach of any representation of Customer; or (2) the use of the Customer Website by third parties, except third party claims that the Minderest Price Intelligence or the Minderest Price Intelligence APIs infringe the intellectual property rights of a third party.
19. LIMITATION OF LIABILITY
THE PARTIES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO EACH OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, ARISING OUT OF THESE TERMS AND/OR THE USE OR INABILITY TO USE THE MINDEREST PRICE INTELLIGENCE FUNCTIONALITY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY MINDEREST PRICE INTELLIGENCE OR THE ACTS OR OMISSIONS OF MINDEREST. IN NO EVENT WILL THE LIABILITY OF THE PARTIES IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED THE FEES PAID BY CUSTOMER TO MINDEREST UNDER THESE TERMS.
20. NO TRANSFER OF INTELLECTUAL PROPERTY RIGHTS
Nothing in these Terms constitutes the transfer of an ownership right in the Intellectual Property of either Party. "Intellectual Property" means all ideas, concepts, designs, inventions, creative works, discoveries, patents, products, specifications, computer software programs, databases, original works of art and authorship, formulas, processes, compositions of matter, improvements, drawings, notes, documents, information, mask works, trade secrets and materials made, as well as any improvements thereto, trademarks and trade names, and related sales, business, and marketing plans.
21. NO WARRANTY
THE MINDEREST PRICE INTELLIGENCE AND SOFTWARE ARE PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF NON-INFRINGEMENT, QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR WILL ANY WARRANTIES BE CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. MINDEREST DOES NOT WARRANT THAT THE SERVICE OR THE MINDEREST PRICE INTELLIGENCE API’S WILL MEET CUSTOMER’S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE MINDEREST PRICE INTELLIGENCES OR THE CUSTOMER WEBSITE WILL BE UNINTERRUPTED.
22. RELATION OF PARTIES
The parties are independent contractors. No person performing any of the work or services described herein on behalf of one of the parties will be considered an officer, agent, servant or employee of the other. Each party will be responsible for the acts or omissions of its own officers, agents, employees, and subcontractors. Nothing herein will be construed as creating a partnership or joint venture between the parties.
23. FORCE MAJEURE
Neither party will be liable for any failure to perform due to unforeseen circumstances or causes beyond the partys’ reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, earthquakes, fire, flood, accident, strikes, and inability despite a good-faith effort to secure transportation, facilities, fuel, energy, labor, or materials. Time for performance will be extended by force majeure.
24. GOVERNING LAW AND VENUE
These Terms are governed by the laws of Spain. The parties hereby waive any objection to the jurisdiction and venue of such courts.
If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Terms shall remain in full force and effect.
26. NO WAIVERS
No delay or omission on the part of Minderest in requiring performance by you or in exercising any right hereunder will serve as a waiver of any provision or of any right or rights under these Terms; and a waiver, omission or delay in requiring such performance or exercising any such right on one occasion will not be construed as a bar to or waiver of such performance or right on any future occasion.
27. ENTIRE AGREEMENT
Each Party acknowledges that it has read these Terms, understands them, and agrees to be bound by them. These Terms represent the entire understanding of the Parties with respect to their subject matter and supersede all prior agreements, negotiations, representations, statements and writings among the Parties relating to their subject matter.