Last updated June 3rd, 2019.
This is a legal agreement between Miradore Inc (C/O Westmusa, Inc 235 West 48th St, Suite 42B New York, NY 10036, USA), and/or one of its affiliates, (each, “Miradore”) and you or the legal entity you represent as a user of the Services (“Customer” or “You”) and sets forth your rights and responsibilities that you have with respect to the Service. If you sign up for Miradore on behalf of a company or other entity, you represent and warrant that you have the right, capacity and authority to accept this Agreement on your own behalf or their behalf and to abide by the terms of the Agreement, and that you have fully read and understood the Agreement. Moreover, if you are a corporation, you represent and warrant that you are duly incorporated and validly existing under the laws of your jurisdiction of incorporation and you have the corporate power and authority to agree to this Agreement and to perform your obligations hereunder.
Any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, these Terms will not be binding on the Company, even if payment is accepted.
If you have any questions about our Terms, please contact us.
BY CREATING A MIRADORE ACCOUNT, ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement shall enter into force when you register as a user of the Service and shall continue as long as you use the Service (“Term”).
The Term shall terminate pursuant to below Section 16.
3. Modifications to Agreement
Miradore is entitled, at its sole discretion, to amend this Agreement at any time. Miradore will notify You of any changes Miradore considers material through the Service or by e-mail. Other changes will take effect immediately. You agree to be bound by any of the changes made in the Terms, including changes to any and all documents and policies incorporated thereto. Your continued use of the Service after such notice shall be deemed an acceptance of any changes. If you do not agree with the amended Terms, then you must avoid any further use of the Company Service.
4. Provision of the Service
a) Use of the Service. Subject to Your acceptance of and compliance with this Agreement, Miradore grants You a personal, limited, non-exclusive, non-transferable, non-sub-licensable and revocable right to use the Service solely for Your internal use within Your organization as intended by Miradore.
b) Modifications to Service. Miradore reserves the right to modify the Service or any part or element thereof from time to time without prior notice. As applicable, Customer may be notified of such modifications when logging in to the Service. If Customer does not accept the modification, Customer shall notify Miradore before the effective date of the modification, and this Agreement will terminate on the effective date of the modification. Otherwise, the modifications shall be deemed accepted by Customer´s continued use of the Service, or any part or element thereof after effective date of modifications. Customer is responsible at its own cost to carry out any changes to its own software or devices which are necessary for the proper use of the modified Service. After modification, you may no longer use the older version of the Service unless agreed to otherwise in writing between you and the Company.
c) Availability of Service. Miradore will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Miradore shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Miradore’s reasonable control, including, for example, changes in the regulatory environment or act of government, fire, earthquake, act of terror, strike or other labor problem, disturbances to public communications networks, power outages, Internet service provider failure or delay, or denial of service attack.
Miradore has the right to suspend or terminate the Service, parts of the Service or certain features of the Service at its sole discretion. Miradore aims to notify You a reasonable time in advance about any suspensions or termination of the Service. You agree that Miradore may discontinue the Service or change the content of the Service at any time, for any reason, with or without notice to you, without liability, unless otherwise expressly provided herein.
d) Technical Support. Miradore shall provide reasonable technical support to Customer and its authorized users as defined from time to time at www.miradore.com.
5. Using the Service
a) Eligibility. In order to use the Service, you must:
- Complete the registration process.
- Be at least eighteen (18) years old and able to enter into contracts.
- Provide true, complete, and up to date contact information.
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you will not use the Service in a way that violates any laws or regulations. The Service is not intended for consumer use.
b) Login name and password. The use of the Service requires a login name (which must be a valid email address) and a password. You are responsible for keeping your login name and password confidential. You are also responsible for any login names that you have access to, whether or not you authorized the use. You will immediately notify us of any unauthorized use of your login names. We are not responsible for any losses due to stolen or hacked passwords. We do not have access to your current password.
c) Fees. The Service is subject to fees in accordance with the prevailing pricing plan available at www.miradore.com. The applicable fee is charged in advance in monthly or annual payment intervals, unless agreed otherwise between Miradore and the Customer. All fees are non-refundable, i.e. there are no refunds or credits for periods where the Customer did not use the Service, used it only partially, or deactivated the Service or terminated this Agreement before the end of an ongoing payment interval.
Miradore shall be entitled to amend the pricing, by giving prior written notice at least 60 days before the effective date of the change.
The Service fee does not include any deductions or withholding on account of any taxes, levies, fees or other charges. Value added tax shall be added to the prices in accordance with the then current regulations.
d) Payment. You are responsible for paying all fees and applicable taxes associated with the Service in a timely manner with a valid payment method. You authorize Miradore to charge through your selected payment method (credit card, PayPal, or bank account, “Payment Method”) all charges to your Service accounts. When you provide such a Payment Method to Miradore, you confirm that you are permitted to use that Payment Method. You also authorize Miradore’s payment processor to collect and store information on the Payment Method, along with other related transaction information, and provide Miradore with information on your payment.
Your payment to Miradore will automatically renew at the end of the subscription period, unless You cancel Your subscription by notifying Miradore thereof in writing before the end of the current subscription period. Unless otherwise agreed, the subscription period is one month and the cancellation of the paid subscription shall take effect the day after the last day of the current subscription period.
Credit card payment: When paying by credit card, you shall provide us with valid credit card information and authorize us to deduct the monthly charges from that credit card. You will replace the information for any credit card that expires with information for a valid one. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and will not be rejected. If we are unable to process your credit card order, we will try to contact you by email and suspend the Service until your payment can be processed.
If your payment fails or your account is past due, you agree to pay all amounts due on your account upon demand and reimburse Miradore for any costs and expenses related to the overdue payment. Miradore may also collect fees owed using other collection mechanisms. In case of payment failure, Miradore may at any time without notice suspend, terminate or delete your upgraded Service or your account.
You agree to submit any disputes regarding any charge to your account in writing to Miradore within thirty (30) days of such charge. Otherwise, such dispute will be waived and such charge will be final and not subject to challenge.
e) Restrictions. You agree not to use the Service in a manner or otherwise submit any material, that (a) violate any Intellectual Property Rights, privacy, publicity or any other rights of others; or (b) would be obscene, indecent, discriminatory, abusive, defamatory or illegal, or violate good manner. You are solely responsible for any material You submit to the Service and the consequences of its transmission.
You may not use inappropriate language or offensive expressions while using the Service. You shall also use the Service in a manner that does not cause harm to Miradore, other users or third parties. If Miradore receives a notice claiming that You have submitted preceding type of material, Miradore is entitled to remove such material or prevent its use without notice.
Except as specifically allowed in this Agreement, You are not entitled to use, copy, reproduce, republish, store, modify, transfer, display, encode, transmit, distribute, lease, license, sell, rent, lend, convey, upload or otherwise transfer, assign or make publicly available your account, the Service, a part thereof or the material contained therein in any way. You are not entitled to adapt, translate, reverse engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, methods, techniques, file formats or programming interfaces of, or create derivative works from the Service or any part thereof, except to the extent expressly permitted herein or under applicable law. You are not entitled to remove, modify, hide, obscure, disable or modify any copyright, trademark or other proprietary rights notices, marks, labels or any other branding elements contained on or within the Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material, or misrepresent the source of ownership of the Services.
No devices or connections necessary for the use of the Service are provided subject to this Agreement. You are responsible for purchasing, maintaining and updating such devices and connections (including data security) and for any costs related thereto. You acknowledge that the use of the Service used in connection with any other device or connectioned product or service does not violate obligations of such device or connectioned product.
6. Processing of Personal Data
Miradore does not own, control or direct the use of any of the Customer Data stored or processed by a Customer or User via the Service. Only the Customer or User is entitled to access, retrieve and direct the use of such Customer Data.
Because Miradore does not collect or define the use of any Personal Data contained in the Customer Data, and because it does not define the purposes for which such Personal Data is collected, the means of collecting such Personal Data, or the uses of such Personal Data, Miradore is not acting in the capacity of data controller in terms of the European Union’s General Data Protection Regulation (EU Regulation 2016/679, hereinafter “GDPR”) and does not have the associated responsibilities under the GDPR. Miradore shall therefore be considered as a processor on behalf of its Customer or User as to any Customer Data containing Personal Data that is subject to the requirements of the GDPR. Miradore’s processing of the Customer’s personal data shall be subject to the terms of the Data Processing Agreement, which forms an integral part of this Agreement.
8. Intellectual Property Rights
a) Proprietary Rights Owned by Miradore. Miradore or its licensors shall own all rights, title and interest in and to the Service as well as any material in or provided through the Service, including any copyright, patent, trademark, design right, trade secret and any other intellectual property rights (hereinafter referred to as “Intellectual Property Rights”). You shall not receive any ownership rights by using the Service or for example by downloading material from or submitting material to the Service. Unless expressly authorized by mandatory legislation, the Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Miradore. All rights not expressly granted to you herein are reserved by Miradore.
Proprietary Rights Owned by You. You warrant that You have necessary and sufficient use rights to any and all content and material that You submit to the Service. You agree not to use or otherwise exploit such content and material on end users, whose devices are managed using the Service, for any purpose without the express consent of the person who owns the right to such content
and material. By using this Service, You represent that You have the right to gather and store this information and material in the Service and that you will process the personal data included in such material in accordance with applicable data privacy legislation.
Customer shall defend, indemnify and hold harmless the Company from and against any and all third party claims, actions, liabilities, losses, damages and expenses which arise directly or indirectly out of or in connection with Customer’s data and/or device management activities under or in connection with these Terms, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any part of applicable data protection and/or privacy laws.
9. Third-party Sites, Products and Services
The Service may contain applications and links to sites, which are owned or operated by third parties. Miradore shall not be responsible for the content or for products or services offered by third parties. You are also aware that the individual applications or other material contained in the Service may include supplementary terms and conditions.
10. No warranty and Limitations of Liability
THE SERVICE IS OFFERED ON AN AS-IS BASIS. THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR SUITABILITY; ANY WARRANTY RELATING TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE COMPANY SERVICE; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICE OR THE RESULTS OF ANY RECOMMENDATION WE MAY MAKE. THE COMPANY DOES NOT WARRANT THAT THE SERVICE MEETS CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER AGREES THAT THE COMPANY WILL HAVE NO RESPONSIBILITY (OR RELATED LIABILITY) FOR BACKING UP CUSTOMER DATA OR ANY INFORMATION THAT CUSTOMER PROVIDES TO THE COMPANY.
You acknowledge and agree that the use of the Service including any and all decisions made by You based on such use is at your own risk.
You agree that, to the extent permitted by applicable law, Your sole and exclusive remedy for any problems or dissatisfaction with the Service, or any related third party application or content, is to stop using the Service or any related third party application or content.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MIRADORE, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, SUPPLIERS OR LICENSORS BE LIABLE FOR:
i. ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGE AND LOSS (INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, FAILURE TO MEET DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR REASONABLE CARE, PERSONAL INJURY OR WORK STOPPAGE, OR LOSS OF PROFITS), COSTS, EXPENSES, AND PAYMENTS, THAT MAY RESULT FROM, IN CONNECTION WITH OR ARISING OUT OF A BREACH OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY CONTENT, OR FROM ANY FAILURE, ERROR, OR DOWNTIME IN THE COMPANY POSITIONING SERVICE, OR FROM ANY FAULT OR ERROR MADE BY THE COMPANY’S STAFF, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, REGARDLESS OF LEGAL THEORY OR OF THE ALLEGED LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, PRODUCT LIABILITY AND STRICT LIABILITY, WITHOUT REGARD TO WHETHER MIRADORE HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES;
ii. IN NO EVENT SHALL THE AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THIS AGREEMENT, THE SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY CONTENT BE MORE THAN LOWEST OF (A) THE ACTUAL PRICE PAID BY YOU TO MIRADORE FOR THE USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD PRECEDING THE CAUSE OF THE CLAIM, (B) USD 50, OR (C) THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
You shall be liable and agree to indemnify and hold Miradore and its subsidiaries, affiliates, officers, agents, and employees harmless from and against all damages, costs, expenses and liabilities which are caused by, arising from and/or related to You or your unlawful behavior or infringement of this Agreement or Your violation of any rights of a third party through use of the Service or content related thereto.
11. Applicable law and settlement of disputes
This Agreement and the contractual relation related thereto shall be governed by the State of Delaware, excluding its choice of law provisions. Disputes arising out of this Agreement or the contractual relation related thereto will be attempted to be settled amicably. If no agreement is attained, the dispute shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be one. The place of arbitration shall be New York, New York. The Emergency Arbitrator provisions shall not apply.
CUSTOMER KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY, TO PARTICIPATE IN A CLASS ACTION OR A DIFFERENT VENUE OR JURISDICTION OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.
12. Export Control
Miradore’s products may be subject to export and re-export control laws and regulations. You agree to comply with all applicable export and re-export control laws and regulations. You represent that You are not named on any government list of persons or entities prohibited from receiving export and that You shall not access or use the Service in violation of any export embargo, prohibition or restriction. In particular, Customer represents and warrants that Customer will not use or otherwise transport, export or re-export the Service to a country that is subject to a U.S. Government embargo or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Customer also represents and warrants that Customer is not located in any such country or on any such list.
Miradore may assign this agreement in whole or in part to its parent, affiliate or subsidiary company or in connection with a merger, business acquisition, corporate reorganization, or sale of all or substantially all of its assets or change of control or ownership. Customer may not assign or transfer its rights or obligations under these Terms without the prior written consent of the Company.
14. Notice of Breach of Security
You or Miradore may terminate this Agreement at any time and for any reason or no reason by giving Notice to the other party. We may suspend our Service to you at any time, with or without cause. If we terminate your account without cause, we will refund a prorated portion of your monthly prepayment. We will not refund or reimburse you if there is cause, like a violation of this Agreement. Your rights under these Terms will terminate immediately and automatically without notice from the Company if you fail to comply with any of the terms and conditions of these Terms.
If you do not log in to your account for 3 or more months, we may treat your account as “inactive” and the Agreement as expired.
Once the Agreement has been terminated or expired we may permanently delete the account and all the data associated with it if not otherwise agreed by the Parties.
If You or Miradore terminate this Agreement, or if Miradore suspends Your access to the Service, You agree that Miradore shall have no liability or responsibility to You to the fullest extent permitted under applicable law.
Upon any termination of the Service or your account this Agreement will also terminate, but Section 5c (Fees), Section 5d (Payment), Section 8 (Intellectual Property Rights), Section 10 (Liabilities and limitations of liability), Section 11 (Applicable law and settlement of disputes), Section 15 (Termination), Section 17 (Confidentiality) and Section 18 (Miscellaneous) shall continue to be effective after this Agreement has terminated.
16. Notices and Contacts
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing address below, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services administrator designated by you.
Attn: Legal Notices
C/O Westmusa, Inc
235 West 48th St, Suite 42B
New York, NY 10036, USA
You and Miradore shall keep in confidence all Confidential Information and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of this Agreement. “Confidential Information” for the purposes of these Terms shall mean all information and/or business or trade secrets given by a party to the other party, including all documents, information and other material irrespective of the manner or form in which the information is disclosed or how the party receiving the information otherwise learns it or whether the information can be or has been protected as an intellectual property right by the disclosing party.
A receiving party shall have the right to:
- copy Confidential Information only to the extent necessary for the purpose of these Terms;
- disclose Confidential Information only to those of its employees who need to know Confidential Information for the purpose of these Terms; and
- disclose Confidential Information to its own advisors and possible subcontractors provided that such advisors are bound by confidentiality provisions at least as restrictive as contained in this Section 18.
Notwithstanding the foregoing the confidentiality obligation shall not be applied to any material or information:
- which is generally available or otherwise public other than by a breach of these Terms on the part of the receiving party; or
- which the party has received from a third party without any obligation of confidentiality; or
- which was in the possession of the receiving party prior to receipt of the same from the other party without any obligation of confidentiality related thereto; or
- which a party has developed independently without using material or information received from the other party.
Notwithstanding the foregoing either party shall be entitled to disclose Confidential Information, where such disclosure is required pursuant to law, decree or order issued by competent authorities, or juridical order.
Each party shall cease using Confidential Information received from the other party promptly upon termination of these Terms or when the Party no longer needs the Confidential Information in question for the purpose of these Terms and, unless the parties separately agree on the destruction of such material, return the material in question and all copies thereof. Each party shall, however, be entitled to retain copies required by law or regulations.
In particular, Customer acknowledges that the Service and any related documentation contains valuable proprietary information and trade secrets and that unauthorized or improper use of the Service and/or the documentation will result in irreparable harm to the Company for which monetary damages would be inadequate and for which the Company will be entitled to immediate injunctive relief.
The rights and obligations under this Section 17 shall survive the termination or expiration of these Terms and shall remain in force for a period of five years from the date of disclosure of the respective piece of Confidential Information
18.1. U.S. Government End-Users
This section 18.1. only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government. The Company Software is “commercial computer software” developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Company Software is governed by the terms of these Terms.
The headings in these Terms are for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of the provisions of these Terms.
18.3. No Waiver
No failure to exercise or delay in exercising any right, power or privilege vested in any party under the Agreement shall operate as a waiver of that party’s right to do so.
In the event that any provision of these Terms is found to be unenforceable or illegal the remaining provisions shall continue to be in full force and effect and the unenforceable provisions shall be deemed to be amended to such extent as is necessary to make them binding and enforceable on the parties.
18.5. Entire Agreement
These Terms constitute the entire agreement among the parties with respect to the subject matter hereof and shall supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof. These Terms are not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
18.6. Reference Right
The Company may advertise or publicly announce and otherwise publicly indicate that the Company provides or has provided the Service to Customer.
Customer acknowledges and agrees that the Company may use subcontractors in the performance of its obligations hereunder.