MMT (Pty) Ltd's Terms and Conditions  - Marketplace

Version 1.0

Sections:

1. INTRODUCTION

These Terms and Conditions refer to the Agreement as entered between yourself ("the Customer") and Mint ("the Publisher"), in terms of which Offerings are procured through Azure Marketplace and AppSource Marketplace.

You acknowledge that Microsoft is not a direct party to this Agreement, nor in anyway responsible for any of the parties' actions or obligations. Microsoft's relationship with yourself and Mint is solely governed by its Microsoft's respective agreements with yourself and Mint.

It is further acknowledged that the Offerings as made available through Azure Marketplace and AppSource Marketplace are licensed and not sold to yourself and that your license is subject to your prior approval of the Standard Microsoft Contract.

These Terms and Conditions constitute a legally binding agreement made between you and Mint, concerning your access to and use of the Offerings.

You agree that by accessing the Application, you have read, understood, and agree to be bound by all these Terms and Conditions Use.

IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE APPLICATION AND YOU MUST DISCONTINUE USE IMMEDIATELY.

2. APPLICABILITY OF TERMS

Supplemental terms and conditions or documents that may be posted on the Application from time to time are hereby expressly incorporated herein by reference.

Mint reserves the right, to make changes or modifications to these Terms and Conditions at any time and for any reason. We will alert you about any changes by updating the "Last updated" date of these Terms and Conditions and you waive any right to receive specific notice of each such change.

It is your responsibility to periodically review these Terms and Conditions to stay informed of updates. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms and Conditions by your continued use of the Application after the date such revised Terms are posted.

3. ACCESS AND USE

Subject to signature of the Agreement and selection of Services and on payment of the fee(s), you will be granted a non-transferable license to access Services and use the Service and Products, as provided for in the relevant Agreement and Appendices thereto.

The usernames, passwords, and Pin numbers (if applicable) of Authorised Users are personal to the individual Authorised Users and you and the Authorised Users undertake not to allow any person other than the relevant Authorised User to access or use the Services or Products using such username, password, and Pin number (if applicable).

4. CONFIDENTIALITY

Neither yourself nor Mint shall at any time disclose, directly or indirectly, to any other person whatsoever (including to the public or any section of the public) any information concerning this Contract or any other information of any nature whatsoever concerning the other Party or any company affiliated with the other Party, including but not limited to, its customers, employees or plans, or any other matter regarding the internal affairs of the other Party or its affiliates whether such information or matter is stated to be confidential or not, without the express written permission of the other Party (collectively, "Confidential Information").

5. REPRESENTATIONS

Representations by you as the Customer

By using the Application, you as the Customer represent and warrant that:

1. All registration information you submit will be true, accurate, current, and complete;
2. You will maintain the accuracy of such information and promptly update such registration information as necessary;
3. You have the legal capacity and you agree to comply with these Terms of Use;
4. You are not a minor in the jurisdiction in which you reside;
5. You will not access the Application through automated or non-human means, whether through a bot, script or otherwise;
6. You will not use the Application for any illegal or unauthorized purpose; and
7. Your use of the Application will not violate any applicable law or regulation.

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Application(or any portion thereof).

You will control access to and use of the Offerings by End Users and will be held responsible for any use of the Offerings that does not comply with this Agreement.

You may order Offerings for use by its Affiliates. If you do, the licenses granted to you, will apply to such Affiliates, but you will have the sole right to enforce this Agreement against Mint. You will remain responsible for all obligations under this Agreement and for its Affiliates' compliance with this Agreement and any applicable Order(s).

Representations by Mint

The Offerings are provided "as is" and Mint makes no express, implied, or statutory warranties whatsoever in relation thereto. This also extends to the marketability or suitability of the offering for a particular purpose.

Mint does however warrant and represent that:

1. It has the full rights and authority to enter, perform under and grant rights in this Agreement.
2. Mint does not represent or warrant that the Services and/or the Products will meet the Customer's particular requirements; but does warrant that the Offering will substantially conform to the Documentation.
3. To the best of Mint's knowledge, the Offerings will not infringe or violate any third-party patent, copyright, trademark, trade secret or other proprietary rights that may arise nor contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer's network or systems.
4. Mint does not warrant that the Internet, will be error free, will be available on a continuous or uninterrupted basis or at any specific time, or will meet any particular criteria of accuracy, completeness, reliability, performance or quality, or the implied warranties of merchantability or suitability for a particular purpose; and
5. Mint does not represent or warrant that any reports or information that the Customer or Authorized Users may access or download when using the Services or Products will be error-free, free from viruses or other harmful components.

We will grant you as the Customer a non-exclusive and limited license to use the ordered offerings. This will be upon Microsoft's acceptance of an Order and subject to your compliance with the terms of the Agreement.

6. PERMISSIBLE USES

You as the Customer may:

1. Only use the Offerings for purposes of its internal business.
2. Only permit access to and use of the Services and Products to Authorised Users.
3. You may only transfer fully-paid, perpetual licenses to:
1. An Affiliate or
2. A third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or (B) a merger involving Customer or an Affiliate. Upon such transfer, you must uninstall and discontinue using the licensed Offering and render any copies unusable. You must notify Mint of a License transfer and provide the transferee a copy of this Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred.
4. Attempted license transfers that do not comply with this section are void.
7. IMPERMISSIBLE USES

You agree and understand that you and the Authorised Users are not permitted to:

1. De-compile, reverse compile, disassemble or print the source code nor derive, nor attempt to derive the source code of the Software;
2. Attempt to modify, enhance or alter the Software or any part thereof, or permit others to do so;
3. Remove, alter or obscure any copyright, legal, proprietary or other notices on the Mint Products and or third party Products;
4. Install or use any third-party software or technology in any way that would subject Mint's intellectual property or technology to any other license terms;
5. Work around any technical limitations in an Offering or restrictions in Documentation;
6. Separate and run parts of an Offering on more than one device;
7. Upgrade or downgrade parts of an Offering at different times;
8. Use an Offering for any unlawful purpose;
9. Transfer parts of an Offering separately; or
10. Distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.
8. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property belonging to either of the Parties shall remain the property of such Party and the other Party will not acquire any right, title or interest in and to such Intellectual Property.

Where you have a licence to use Offerings, such license is granted on a non-exclusive and non-transferable basis.

Neither Party shall in any manner alter, remove or affect the display of the respective Intellectual Property rights notices (and disclaimers) of the other Party and/or their vendors and licensors without the prior written approval of the other Party, and their vendors or licensors where applicable; and

Neither Party may use the other Party's Intellectual Property, trade names, logo's or any derivative or component thereof without the prior written approval of the other Party.

If the Services or any component thereof becomes, or in Mint's reasonable opinion is likely to become, the subject of an Intellectual Property infringement claim or proceeding, Mint shall use reasonable efforts to secure the right to continue providing the Services and/or for the Customer to continue using the Services. In the event that despite reasonable efforts, this cannot be accomplished by Mint, Mint shall discontinue the affected part of the Services and Mint's charges shall be equitably reduced to reflect the reduction in the value of the Services to the Customer, provided that the aforementioned remedies shall be the Customer's sole remedies in respect of any such intellectual property infringement claim.

9. DATA USAGE AND PROTECTION

We care about data privacy and security. By using the Application, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use.

You consent to the processing of Personal Data by Mint and its Affiliates, and their respective agents and Subcontractors. Before providing the Personal Data to Mint, you will obtain all the required consents from third parties.

Processor and Controller Roles and Responsibilities:

1. Mint and the Customer agree that the Customer is the controller of Personal Data, and that Mint is the processor of such data. This is unless the Customer acts as a processor of Personal Data, in which case, Mint is a sub-processor or unless stated otherwise in any Offering-specific terms.
2. Where the Customer is a processor, the Customer warrants to Mint that its instructions, including the appointment of Mint as a processor or sub-processor, has been authorised by the relevant controller.
3. Mint will process Personal Data by the other strictly within the bounds of the instructions received from the Customer. Any potential further Processing will be communicated to the other Party and will only be done upon receiving written Consent from the other Party.
4. The Parties warrant that Personal Information submitted to it is treated as Confidential Information and will not be disclosed to third parties without the prior Consent of the other Party unless the disclosure is required by law or during the proper performance of Mint's duties.
5. The Parties will retain Personal Information only for as long as the purpose for which the Personal Information is collected remains in respect of this Agreement, or as required by law.
6. The Parties warrant that they are authorised to submit any Personal Information under their control to each other and that they are each able to provide proof thereof.
7. Each Party will indemnify, defend, and hold harmless the other and its directors, officers, employees, contractors or agents and sub-contractors, against any and all Data Subjects and third-party claims and actions related to the unlawful Processing of Personal Information for the duration of this Contract.

Duration:

1. The obligations regarding Confidentiality will apply as follows:
1. For Customer data (until it is deleted by Mint).
2. All other Confidential Information, (a period of five years after a party receives the Confidential Information).
10. DATA PROTECTION RIGHTS AND NOTIFICATIONS

Data Subjects have certain rights in respect of their Personal Information. In particular:

1. Withdrawal of Consent: Data Subjects may withdraw their Consent at any time by sending a written request to the relevant Information Officer. Upon receiving notice that the Data Subject has revoked his/her/their Consent, The Parties will stop Processing the Data Subject's Personal Information within a reasonable time, which will vary depending on what information has been collected and for what purpose, and the Data Subject will receive a confirmation email from the relevant Party stating same.
2. Access or obtain a Copy of Personal Information: Data Subjects have the right to examine any of their Personal Information held by the Parties. In order to do so Data Subjects may send a written request to the relevant Information Officer. As per the Promotion of Access to Information Act, 2000 ("PAIA"), The Party holding the Personal information may charge a nominal fee should the Data Subject request any physical records.
3. Update, Modify, Rectify, Erase: the Personal Information that the Parties hold on the Data Subject; and
4. Object: to the Processing of the Data Subject's Personal Information or Restrict or stop the Parties from Processing any of the Personal Information which it holds on the Data Subject, including by withdrawing any Consent previously given for the Processing of such Personal Information.

The Parties undertake to notify each other immediately of:

1. Any request from a Data Subject which results in a Party's obligation to cease Processing certain Personal Information;
2. Any instance in which one of the Parties is obligated to assist the other with enforcing a Data Subject's rights as set out in the Protection of Personal Information Act, 2013 or any other Applicable Laws;
3. Any instance that would render either of the Parties unauthorised to continue Processing certain Personal Information of Data Subjects.

The foregoing notwithstanding, neither Party assumes any responsibility for the accuracy, completeness or integrity of the Data which either of the Parties stores, collects, collates, mines, transmits, alters or Processes and the Parties accordingly indemnify each other against any loss or damage which either Party may suffer as a result of any incomplete, incorrect or corrupt Data generated through the Parties' engagement with each other.

You agree to indemnify and hold harmless Mint and its directors, officers, employees, contractors or agents and sub-contractors from any and all third-party claims, liabilities, against loss, damages, costs or expenses (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the unauthorised use and processing of Personal Information as defined in any applicable data protection law of any third party.

11. DISCLAIMER

THE OFFERING IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE APPLICATION SERVICES WILL BE AT YOUR SOLE RISK.

TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APPLICATION'S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS APPLICATION AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY

1. ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS,
2. ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
3. ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATION,
4. ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATION BY ANY THIRD PARTY, AND/OR
5. ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION.

AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

12. INDEMNITIES

Indemnities by You

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any third party due to or arising out of:

1. Your Contributions;
2. Use of the Site;
3. Breach of these Terms of Use;
4. Any breach of your representations and warranties set forth in these Terms of Use;
5. Your violation of the rights of a third party, including but not limited to intellectual property rights; or
6. Any overt harmful act toward any other user of the Site with whom you connected via the Site.

Indemnities by Mint

Mint will defend the Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Offering as permitted under the Contract infringes or misappropriates a third party's intellectual property rights (a "Claim Against Customer"), and will indemnify Customer for all reasonable attorney's fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement

Mint has no liability if a Claim Against Customer arises from:

1. Customer Data or non-Mint products, including third-party software; and
2. Any modification, combination or development of the Offering that is not performed or authorized in writing by Mint, including in the use of any application programming interface (API).

The Customer must provide Mint with prompt written notice of any Claim Against Customer and allow Mint the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Mint's defense and settlement of such matter.

Any claims, howsoever arising, must be commenced formally by service of court summons or process initiating arbitration proceedings within three years after the Party bringing the claim becomes aware (or ought reasonably to have become aware) of the facts which give rise to the claim and, in any event regardless of the knowledge of the claimant, by no later than three years after the date of any alleged breach of contract, delictual act or other act or omission giving rise to a cause of action. This expressly overrides any statutory provision, which would otherwise apply.

13. LIMITATION OF LIABILITY

Mint is excluded from liability for any of the following:

1. Any interruption or non-availability of the Services or the Products, or any systems failure, access failure, or any errors, inaccuracies or lack of completeness, reliability, performance, quality, merchantability or suitability for a particular purpose or the specific purpose of the Customer;
2. Any errors, viruses or other harmful components to which the Customer or any third party or any Authorised User, or any documents, files, Products, hardware or computer systems of any of the aforementioned parties are exposed as a consequence of using the website or the Products;
3. Any unauthorised access to or alteration of transmissions of data (including, inter alia, Authorised User passwords) or of any material or data sent or received, or not sent or received by any Party which could not have been prevented by organisational security measures.

For each Offering, each party's maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the term of the applicable licenses, subject to the following:

1. Subscriptions. For Offerings ordered on a subscription basis, Mint's maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident.
2. Free Offerings and distributable code. For Offerings provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Mint, Mint's liability is limited to direct damages finally awarded up to US$5,000.
3. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
4. Exceptions. No limitation or exclusions will apply to liability arising out of either party's:
1. Confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above);
2. Defense obligations; or
3. violation of the other party's intellectual property rights.
14. TERMINATION AND SUSPENSION

These terms and conditions will remain in force and effect while you use the Offering.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

In addition to terminating or suspending your account, we reserve the right to take appropriate legal action.

Termination without cause

Either of the parties may choose to terminate Order without cause on 30 days' prior written notice. This will not affect the Customer's perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period, subject to terms of the Agreement. Take note that Mint will not provide refunds or credits for any partial subscription period(s) if the Agreement or Order is terminated on this basis.

Termination with cause

Either of the parties may terminate this Agreement or any Order on an immediate basis if:

1. The other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of the notice of the breach: or
2. If the other party becomes insolvent.

Mint shall be entitled to terminate this Contract, at any time and with immediate effect, without prejudice to any other rights it may have hereunder or in law, by providing the Customer with notice of such termination if any of the following occur

1. Other than for the purposes of reconstruction or amalgamation, the Customer is placed under voluntary or compulsory winding up, judicial management or receivership or under the equivalent of any of the foregoing; or
2. The Customer makes any arrangement or composition with its creditors generally, or ceases or threatens to cease to carry on business or disposes of any of its material assets other than in the normal course of business; or
3. The Customer consolidates or merges with or into any entity; or
4. A substantial part of the Customer's property becomes subject to levy, seizure, assignment or sale for or by any creditor or governmental agency.

Process after termination

1. All licenses that were granted under the Agreement will terminate with immediate effect, except for the fully paid, perpetual licenses.
2. All amounts that are due in terms of any unpaid invoices, will become due and payable immediately. For metered Offerings that are billed periodically, the Customer must immediately pay for the unpaid usage as of the termination date.
3. If Mint is in breach, the Customer will receive a credit for any subscription fees.

Suspension

Mint may suspend use of the Offering without terminating this Agreement, during any period of material breach. In such an instance, Mint will give the Customer reasonable notice and will suspension only be to the extent that is reasonably necessary.

15. GOVERNING LAW

This Contract will be governed by and interpreted in accordance with the laws of South Africa.

In the event of there being any dispute or difference between the Parties arising out of this Contract which cannot be resolved amicably by the Parties, the said dispute or difference shall, on written demand by either Party be submitted to arbitration in accordance with the Arbitration Foundation of South Africa ("AFSA") rules, which arbitration shall be administered by AFSA.

Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

16. CORRECTIONS

There may be information on the Application that contains typographical errors, inaccuracies, or omissions that may relate to the Application, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Application at any time, without prior notice.

17. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.

YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE.

You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means

18. MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by us on the Application constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time.

We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions.

There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site.

You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

19. NOTICES AND COMMUNICATION

All notices must be in writing and will be treated as delivered on the day received at the address, date shown on the return receipt, email transmission date, or on date of courier or fax confirmation on delivery. Notices to Mint must be to the address as stated on the Order.