Terms Of Services

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

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“Customer Data” means any data (a) provided by you or your End Users (as defined below) to Mindee in connection with your use of the Services or (b) generated for your use as part of the Services. Customer Data excludes any Mindee Data (as defined below).

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“Customer Services” means any software application or other products and services provided by you and used in connection with your use of the Services under this Agreement. If applicable, Customer Services includes sources from which you choose to retrieve Customer Data and destinations to which you choose to transmit Customer Data using the Services.

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“Documentation” means Mindee’s documentation, including any usage guides and policies, for the Services, the current version of which is available at https://docs.mindee.com/

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“End User” means any user of the Services, including via any Customer Services.

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“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

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“Order Form” means an ordering document between you and Mindee, or any of their Affiliates, that specifies mutually agreed upon rates for certain Services and any commercial terms related thereto.

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“Services” means the products and services provided by Mindee or its Affiliates, as applicable, including all updates, modifications, or improvements thereto, that you purchase pursuant to an Order Form or otherwise use. Services excludes any Customer Services and Third Party Services (as defined below).

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"Third Party Services" means any products, services, or software components that are purchased by you from Mindee, but provided, or otherwise made available, by a third party (i.e., a party other than Mindee). Third Party Services are governed by a separate agreement between you and the third-party provider.

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"Mindee Acceptable Use Policy" means certain terms relating to the use of the Services available at https://www.Mindee.com/legal/aup.

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“Mindee Data” means any data that is (a) derived or generated from the use or provision of the Services that does not identify you, your End Users, or any natural person or is anonymized, de-identified, and/or aggregated such that it can no longer identify you, your End Users, or any natural person or (b) any Customer Data that is anonymized, de-identified, and/or aggregated by Mindee in accordance with this Agreement.

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“Mindee Data Protection Addendum” means the personal data processing-related terms for the Services, the current version of which is available at https://www.mindee.com/legals/data-processing-agreement

Any capitalized term not defined in this Section 1 will have the meaning provided in this Agreement.

2.1 Provision of the Services.  Mindee will: (a) provide the Services to you pursuant to this Agreement, the applicable Documentation, and any applicable Order Form(s); (b) comply with the applicable Mindee Services Level Agreement ; (c) provide the Services in accordance with laws applicable to Mindee’s provision of the Services to its customers generally (i.e., without regard for your particular use of the Services), subject to your use of the Services in accordance with this Agreement, the applicable Documentation, and any applicable Order Form(s); (d) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete Malicious Code; (e) if applicable, use trained, qualified personnel to provide the Services; and (g) use commercially reasonable efforts to provide you with applicable support for the Services.

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2.2 Customer Responsibilities.  You will: (a) be solely responsible for all use of the Services and Documentation under your account and the Customer Services; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to your End Users) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the Mindee Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of your End Users, including their compliance with this Agreement, the Mindee Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Mindee promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with your representations and warranties set forth in Section 5 (Warranties, and Disclaimer).

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2.3 Suspension of Services.  Mindee may suspend the Services upon written notice (including email) to you if Mindee, in good faith, determines: (a) that you or your End Users materially breach (or Mindee, in good faith, believes that you or your End Users have materially breached) the Mindee Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or your End Users that threatens the security, integrity, or availability of the Services; or (e) that information in your account is untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined in Section 3.3 (Payment Terms)).

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2.4 Changes to the Services.  You acknowledge that the features and functions of the Services may change over time; provided, however, Mindee will not materially decrease the overall functionality of the Services. It is your responsibility to ensure the Customer Services are compatible with the Services. Mindee endeavors to avoid changes to the Services that are not backwards compatible, however, if any such changes become necessary, Mindee will use commercially reasonable efforts to notify you at least sixty (60) days prior to implementation. In the event Mindee makes a non-backwards compatible change to certain Services and such change materially and negatively impacts your use of the Services (“Adverse Change”), (a) you will notify Mindee of the Adverse Change and (b) Mindee may agree to work with you to resolve or otherwise address the Adverse Change, except where Mindee, in its sole discretion, has determined that an Adverse Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.

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3.1 Fees.  You agree to pay the fees set forth in the applicable Order Form(s). If you use any Services not set forth in the applicable Order Form(s), you will be charged the applicable rates available at https://www.mindee.com/pricing

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3.2 Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes in connection with this Agreement, excluding any taxes based on Mindee’s net income, property, or employees.

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3.3 Payment Terms.  Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees and Taxes (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.3.3 (Payment Disputes), You will pay the Fees due hereunder in accordance with the following applicable payment method:

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3.3.1 Credit Card.  If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring such funds cover such Fees. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, Mindee may suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.

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3.3.2 Invoicing.  If you elect to receive invoices and Mindee approves you for the same, then, except as otherwise set forth in the applicable Order Form(s), (a) invoices will be sent to you via email to the email address(es) you designate in your account and (b) you will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without any applicable Order Form(s), the Fees are payable in United States dollars or Euro. If you fail to pay the Fees and remedy such failure within ten (10) days of the date Mindee provides you with written notice of the same, then Mindee may (i) assess and you will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law and (ii) suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.

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3.3.3 Payment Disputes.  You will notify Mindee in writing within sixty (60) days of the date Mindee bills you for any Fees that you wish to dispute. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with Mindee to resolve the dispute. Mindee will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with Mindee or Mindee determines the dispute is not reasonable or brought in good faith by you.

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4.1 Ownership Rights.  As between the parties, Mindee exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, Mindee's Confidential Information (as defined in Section 4.3.1), Mindee Data, as well as any feedback or suggestions you or your End Users provide regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to the Customer Services, your Confidential Information, and Customer Data, subject to Mindee’s rights to process Customer Data in accordance with this Agreement and the Mindee Data Protection Addendum.

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4.2 Customer Data.  You grant Mindee and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the Mindee Data Protection Addendum. You are responsible for the quality and integrity of Customer Data.

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4.3 Confidentiality.

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4.3.1 General “Confidential Information”. means any non-public information, including pricing, technology, business methods, finances, and trade secrets, that is marked or identified as “Confidential” or the equivalent when disclosed, or that a reasonable person would recognize as confidential from its nature or the circumstances of its disclosure. In connection with the Agreement, each party (the “Receiving Party”) may have access to certain of the other party’s (the “Disclosing Party”) Confidential Information or that of third parties that the Disclosing Party is required to maintain as confidential. Each party retains ownership of its Confidential Information.

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4.3.2 Obligations. The Receiving Party will: (i) only use Confidential Information to fulfill its obligations hereunder; (ii) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and consultants who are bound by written obligations materially similar to this Section 4, and (iii) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but with at least a reasonable degree of care. The Receiving Party will promptly return or destroy the Disclosing Party’s Confidential Information and Personal Data upon termination or expiration of the Agreement, except that it may maintain limited copies of the same consistent with its established data retention policies and subject to this Section 4. The obligations in this Section 4.3.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained.  

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4.3.3 Exceptions. Confidential Information does not include, and Section 4.3.2 does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the Receiving Party after disclosure; (ii) rightfully communicated to the Receiving Party by an entity or entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) approved for disclosure by the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information (a) to comply with the order of a court, governmental body, or regulator, provided that, as permitted by law, the Receiving Party will first give written notice to the Disclosing Party and reasonably cooperate with the Disclosing Party’s efforts, at the Disclosing Party’s expense, to limit the scope of such disclosure; or (b) to establish its rights under the Agreement.

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5.1 Mutual Representations and Warranties. Each party represents and warrants that (i) it has the right to enter into and perform its obligations under the Agreement, (ii) such performance does not and will not conflict with any other agreement of such party or any judgment, order, or decree by which it is bound, and (iii) it will comply with all laws applicable to its performance under the Agreement, including Privacy Laws.

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5.2 Mindee Warranties. Mindee represents and warrants that the Services perform materially in accordance with the applicable Documentation. Your exclusive remedy for a breach of this Section 5.2 will be, at Mindee’s option, to (a) remediate any material non-conformity or (b) refund you the Fees paid for the time period during which the affected Services do not comply with this Section 5.2.

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5.3 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5, NEITHER PARTY MAKES, AND EACH EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

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6.1 By Mindee. Mindee will indemnify and hold harmless (including payment of reasonable attorneys’ fees and court costs) Client and its officers, directors, and employees against any third-party claim alleging (i) that the Services, as used in accordance with this Agreement and the Documentation, infringe the intellectual property rights of a third party, or (ii) that the provision of the Services violates applicable laws, including Privacy Laws. The infringement indemnification provided above will not apply to the extent the alleged infringement arises out of (A) Client’s use of the Services in violation of the Agreement, (B) Client’s failure to use an Update that Mindee communicated was required to avoid infringement, or (C) Secured Data as uploaded to the Services.

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6.2 Alternative Remedy for Infringement. If the Services or any element thereof is found to infringe any third-party intellectual property rights, Mindee may, in its sole discretion, either (i) procure the right for Client to continue to use the affected element; or (ii) modify the affected element to be non-infringing without materially diminishing the Services’ functionality. If neither (i) nor (ii) is commercially reasonable, Mindee may terminate the Agreement by giving Client thirty (30) days’ prior written notice, and refund Client the pro-rata portion of any prepaid Fees.

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6.3 By Client. Client will indemnify and hold harmless (including paying reasonable attorneys’ fees and court costs) Mindee and its officers, directors, and employees against any third-party claim relating to (i) Secured Data or Client’s use of the Secured Data, including allegations that such use violates contractual rights of third parties, or (ii) any violation of applicable laws, including Privacy Laws, by Client with respect to its use of the Services.

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6.4 Procedures. The obligations in this Section 8 are contingent on the indemnified party (i) promptly notifying the indemnifying party of any indemnifiable claim; (ii) granting the indemnifying party sole control over the defense and settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified party without its prior, written consent); and (iii) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense.

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6.5 Sole Remedy. This Section 8 states the indemnified party’s sole remedy, and the indemnifying party’s entire liability, with respect to any indemnifiable claim.

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7.1 General. EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, BREACH OF SECTION 4 (CONFIDENTIALITY), OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, NEITHER PARTY WILL BE LIABLE FOR (i) LOST PROFITS, LOST DATA OR ANY OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED, ARISING OUT OF THE SERVICES OR THE AGREEMENT, EVEN IF THE PARTY AGAINST WHICH THE CLAIM IS ASSERTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) DAMAGES EXCEEDING, IN THE AGGREGATE, THE TOTAL AMOUNT PAID AND PAYABLE BY CLIENT TO MINDEE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.

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7.2 Security. NOTWITHSTANDING SECTION 7.1, IF AN INCIDENT IS FOUND TO BE DUE TO MINDEE’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER SECTION 5(b), MINDEE’S MAXIMUM LIABILITY WILL BE THE FEES PAID AND PAYABLE BY CLIENT FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

7.3 THE LIMITATIONS IN THIS SECTION 7 ARE (i) CUMULATIVE AND WILL NOT BE ENLARGED BY MULTIPLE CLAIMS, AND (ii) AN ESSENTIAL ELEMENT OF THE AGREEMENT.

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8.1 Term. This Agreement is effective as of the Effective Date and expires on the date of the last to expire Subscription Term under any Order Form, (the “Initial Term”), unless terminated earlier as provided herein. After the Initial Term, the Agreement will automatically renew for additional periods of the same duration as the Initial Term (each a “Renewal Term”, and all Renewal Terms together with the Initial Term, the “Term”), unless Client provides written notice of non-renewal to Mindee at least thirty (30) days prior to the expiration of the then-current Term.

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8.2 Termination. Either party may terminate the Agreement for a material breach of any of its provisions by the other party that is not cured within thirty (30) days following written notice thereof. The Agreement may be terminated immediately by either party upon written notice if the other party (i) commences insolvency, receivership, bankruptcy, or any other proceedings for the settlement of its debts (or if such proceedings are instituted by a third party and not dismissed within thirty (30) days), (ii) makes an assignment for the benefit of creditors, or (iii) ceases to do business in the normal course.

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8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services and Client will pay any Fees incurred prior to the date of such termination. If Client terminates the Agreement for Mindee’s uncured material breach as set forth in Section 8.2, Mindee will issue a pro-rata refund of prepaid Fees (if applicable) Sections 3 (to the extent Fees remain due) 4, 6, 7, 8.3, and 9 of these Terms will survive expiration or termination of the Agreement for any reason.

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9.1.1 Affiliates of Customer.  Your Affiliates may use the Services under and in accordance with the terms of this Agreement. You represent and warrant that you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates. You and each of your Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Only you will bring any claim against Mindee on behalf of your Affiliates.

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9.1.2 Affiliates of Mindee.  An Affiliate of Mindee may provide the Services, or a portion thereof, to you or your Affiliates, as applicable, in accordance with this Agreement and any applicable Order Form(s) with such Affiliate of Mindee. Mindee will (a) be responsible for the Services its Affiliates provide and (b) not be relieved of its obligations under this Agreement if its Affiliates provide the Services or a portion thereof. Mindee will enforce the terms of this Agreement relating to the Services its Affiliates provide. Notwithstanding anything to the contrary in this Agreement, an Affiliate of Mindee may directly bill you or your Affiliates, as applicable, (i) for the Services it provides or (ii) solely as a billing agent for Mindee or the Affiliate of Mindee providing the Services, as applicable.

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9.2 Assignment.  Neither party may assign or otherwise transfer this Agreement or any applicable Order Form(s), in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement or any applicable Order Form(s), in whole or in part, without consent to (a) a successor to all or part of its assets or business or (b) an Affiliate. Any attempted assignment or transfer by either party in violation hereof will be void. Subject to the foregoing, this Agreement and any applicable Order Form(s) will be binding on the parties and their respective successors and permitted assigns.

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9.3 Relationship.  Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.

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9.4 No Third-Party Beneficiaries.  This Agreement does not confer any benefits on any third party (including your End Users or an Affiliate) unless it expressly states that it does.

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9.5 Notices.  Notices to Mindee will be provided via email to legal@mindee.co All notices to you will be provided via email to the relevant contact(s) you designate in your account.

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9.6.1 For Entities Contracting with Mindee Inc. The Agreement, including its formation, will be governed by the laws of the State of California without giving effect to conflicts of laws principles that would require a different result. Any claim, action or proceeding hereunder will be brought in the federal or state courts located in Santa Clara, California, and the parties irrevocably consent to such jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.  

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9.6.2 For Entities Contracting with Mindee SAS. Except to the extent mandated by relevant Privacy Laws, the Agreement, including its formation, will be governed by the laws of the Republic of France without giving effect to conflicts of laws principles that would require a different result. Any claim, action or proceeding hereunder will be brought in the courts located in Paris, France, and the parties irrevocably consent to such jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

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9.7 Force Majeure.  No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

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9.8 Waiver. A party’s failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

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9.9. Entire Agreement; Amendment. The Agreement is the entire understanding of the parties with respect to the Services and supersedes any prior agreements, proposals, and communications about them. Terms of services, on any purchase order, invoice, or other such document, whether issued prior to or after the Effective Date, that conflict with any provision of this Agreement will have no force and effect. These Terms may be modified by Mindee at any time in its sole discretion, provided that such changes will not take effect until the next Renewal Term. Any amendment to these Terms must be explicitly reflected in the Order, and will remain in effect for the Term unless subsequently modified, regardless of any changes to the Terms.

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