This Terms of Service (“Agreement”) is entered into by and between MAKING WINNER MINDS (“MWM”) and the entity or person placing an order for or accessing the Services (“Customer”). This Agreement consists of the terms and conditions set forth below and any Order Form. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services through any online provisioning, registration or order process or (b) the Effective Date of the first Order Form. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement. MWM may modify this Agreement from time to time as permitted in Section 13.4 (Amendment).
Capitalized terms shall have the meanings set forth in Section 1, or in the section where they are first used.
1. Definitions
1.1 “Authorized Devices” means those mobile, desktop, or other devices with which the Services can be accessed and used.
1.2 “Content” means code, content, fonts, graphics, designs, documents, or materials created using the Services by Customer and its Users or imported into the Services by Customer and its Users.
1.3 “Documentation” means the technical materials made available by MWM to Customer and/or its Users in hard copy or electronic form describing the use and operation of the Services.
1.4 “Services” MWM's proprietary web-based products and services, along with downloadable desktop and mobile apps. Each Order Form will identify details of Customer’s Services subscription.
1.5 “Order Form” means a document signed by both Parties identifying the Enterprise Services to be made available by MWM pursuant to this Agreement.
1.6 “Packages” or “Components” means add-on modules made available within the Services. Packages and Components may be created by MWM, Customer or other third parties. Packages and Components created by MWM are supported as part of the Services. MWM will use reasonable efforts to support Customer’s use of Packages and Components created by third parties but disclaims all warranties as to such Packages and Components.
1.7 “User” means an employee, contractor or other individual associated with Customer who has been provisioned by Customer with access to the Services.
1.8 “Services” means MWM's SaaS product, web design software, tools, along with downloadable desktop and mobile apps. Each Order Form will identify details of Customer’s subscription to the Services.
2. License and Use Rights
2.1 Services. MWM hereby grants Customer a non-exclusive, non-transferable license during the Term (as defined in Section 12) to use the Services defined in these terms. The Services are delivered electronically.
2.2 Provisioning the Services. MWM will provide to Customer the necessary passwords, security protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Users to access the Services as described herein; no other access to the website or servers from which the Services are delivered is permitted. Customer will provision its Users to access and use the features and functions of the Services through the Access Protocols. Customer may select one or more Users to act as administrators and control, manage and use the Services on Customer’s behalf. Customer shall be responsible for all acts and omissions of its Users.
2.3 Registering for an account. To use the Services, Users will need to register and create an account, which requires the disclosure of certain information (including their full name, password, and email address). MWM accounts will give Users access to the Services and functionality that MWM may establish and maintain from time to time and in MWM's sole discretion. Users’ usernames and passwords are tied to them as a person, and cannot be shared across teams nor can anybody except the User gain access to the account by using their details. All Users must be human. Accounts registered by “bots”, generic team accounts for sharing or other automated methods are not permitted.
2.4 Software Restrictions. Customer will not, and will not authorize any User to:
a) reverse look-up or trace any information of any other user or visitor or otherwise use the Services for the purpose of obtaining information of any other user or visitor;
b) transmit spam, chain letters, or other unsolicited email;
c) upload invalid data, viruses, worms, or other software agents through the Service;
d) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide, or attempt to hide your identity;
e) disclose any information that Customer does not have the consent to disclose (such as confidential information of others, including their personally identifiable information);
f) use any device, software, or process to interfere with, or attempt to interfere with, the proper working of the Services or any Content, or any systems or networks connected to the Service, or with any other person's use of the Service;
g) conduct, engage in or otherwise process End User information or data to analyze individuals or groups of natural persons for unlawful or discriminatory purposes;
h) use the Services or any Content for any purpose that is unlawful or prohibited by the Agreement;
i) store or collect any personally identifiable information that is deemed sensitive or requires special protections under applicable laws. For example, Social Security numbers, passwords, and credit card information;
j) copy or duplicate the Services;
k) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services is compiled or interpreted;
l) modify the Services or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of MWM;
m) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2;
n) use the Services to build a similar or competitive product or service;
o) damage, interfere with or disrupt the integrity, performance or use of the Services;
p) use the Services for any purposes prohibited by law, including without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons;
q) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any manual process to access, acquire, copy, or monitor any portion of the Services or any Content or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service; or
r) submit, transmit or display any Content, or use Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of MWM or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval.
Customer will not conceal, remove, obscure or alter (i) any proprietary notice or legend regarding MWM's proprietary rights in the Services; or (ii) trademarks or logos displayed as part of the Services. Customer will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules.
2.5 Content Restrictions. Customer agrees that any Content displayed in the Services does not and will not violate any law or infringe any rights of any third party, including without limitation any Intellectual Property Rights, publicity rights, or rights of privacy. Customer and its Users shall not display Content that:
a) is used for unlawful purposes or the promotion of illegal activities;
b) is used in a way that could be detrimental to the reputation of MWM;
c) infringes intellectual property rights of third parties, would violate laws applicable to the Content or would cause MWM to violate applicable law;
d) implies or suggests that the Content is created or endorsed by MWM or MWM's licensors;
e) probes, scans, or tests the vulnerability of any system or network or breach or circumvent any security or authentication measures, including measures that prevent or restrict use or copying of the Content or enforce limitations on the use of the Services or material accessible via the Services;
f) may create a risk of harm, loss, damage, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, to any animal or to any property;
g) may seek to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
h) may constitute or contribute to a crime or tort;
i) contains any information or content that is deemed to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable by MWM;
j) contains software or other material that violates or invades the intellectual property rights (or rights of privacy or publicity) of any third party;
k) includes any information or content to which the Customer or User has not obtained any necessary rights or permissions to use accordingly or to make available under any law or under contractual or fiduciary relationships;
l) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
m) contains any information or content that the Customer knows is not correct and current;
n) is adult in nature, such as any nudity in a sexual context, or any content with adult themes; or
o) uses the Services for any purpose other than to upload and share Content in accordance with this Agreement.
MWM reserves the right, but is not obligated, to reject and/or remove any User Content that MWM believes, in its sole discretion, violates the Agreement. This includes complete removal from specific parts of the service provided by MWM, as for example the Discord server. If this is justified due to listed reasons, Customer can be removed from the Discord without the right to a refund, even if the purchase of the services has been completed.
2.6 Publicity. During the Term and at any point thereafter, MWM may publicly refer to Customer orally and in writing, including on MWM's website and sales presentations, as a customer of MWM and may use Customer’s logo for such purposes.
2.7 Support. Unless Customer purchases additional support services, MWM shall provide Customer with the following standard support: (a) email support to Users Monday through Friday, 09:00 – 17:00 CET/CEST, German holidays excluded, for problem resolution assistance; (b) commercially reasonable efforts to correct errors in the Services reported to MWM in writing; and (c) at the sole discretion of MWM, the provision of updates, upgrades, enhancements, and any other improvements that MWM makes generally available to subscribers of the Services.
3. Ownership Rights
3.1 No IP Rights Transfer. Other than the licenses described herein, no intellectual property rights are transferred by either Party to the other pursuant to this Agreement.
3.2 What MWM Owns. Except for Content, MWM shall own all rights, including, but not limited to, all copyright rights in the Services, including any content or trademarks text, graphics, user and visual interfaces, photographs, logos, sounds, music, artwork, applications, computer code and associated documentation, including but not limited to the design, structure, arrangement, and “look and feel” of such content, and content that is owned by or licensed to MWM and MWM's licensors and is protected by copyright, trademark, and other intellectual property rights and laws but specifically excluding rights in Packages and Components. Except for the rights expressly granted herein, Customer acquires no rights, title or interest in the Services.
3.3 What Customer Owns. As between the Parties, Customer shall own all rights in and MWM disclaims any rights in Customer’s Content.
3.4 Packages and Components. Packages and Components are owned by the persons or entities who create them.
3.5 Templates. MWM posts a list of templates created by MWM or users of the Service. Templates may be created by MWM, Customer, or other third parties. Templates are owned by the persons or entities who create them. Templates created by MWM are supported as part of the Services. MWM will use reasonable efforts to support Customer's use of Templates created by third parties but disclaims all warranties as to such Templates. It is the responsibility of the Template creator to offer technical support. Such creator assumes all responsibility and liability in connection with the use of the template.
4. Content
4.1 Customer’s Content. Customer and its Users may upload and share Content via the Services including but not limited to website templates created and contributed by the Customer and its Users, blog or forum posts, images, and photos. Any content a User submits, posts, displays, or otherwise makes available on the Service, including all Intellectual Property Rights (defined below) therein, is referred to as “Content”. After the Content is successfully uploaded, a link is made available allowing Users to share the Content. Customer retains ownership of the Content. MWM has no obligation to store, maintain, or provide Customer with a copy of the Content. Customer alone is responsible for any of the Content that may be lost or unrecoverable through the Customer’s use of the Services. Customer is encouraged to archive its Content regularly and frequently.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction. Customer owns all of the Content posted or published through the Services.
4.2 MWM is not responsible or liable for the Content or the consequences of uploading the Content or for sharing the Content. MWM does not endorse the Content or any advice, suggestion, or opinion expressed in the Content.
4.3 Although MWM has no obligation to monitor Content, MWM may do so and may remove Content and/or prohibit any use of the Services it believes may be (or alleged to be) in violation of the license and use rights set out in Section 2 of this Agreement.
4.4 License to Display Content. Customer grants: (a) MWM a worldwide, non-exclusive, royalty-free, transferable license with a right to sub-license to use, reproduce, distribute, display and perform the Content to the extent required for the provision of the Services; and (b) individuals with whom Content is shared via the Services a personal, non-exclusive, royalty-free license to access the Content and to use the Content in accordance with the terms of this Agreement. The foregoing license terminates automatically when Content is removed from the Services. Customer understands and agrees that part of the Services is a public platform and other users may search for, see, use, and/or re-post any Content that Customer makes publicly available through the Service.
4.5 Feedback. Customer may choose to or MWM may invite Customer to submit feedback about the Service, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, Customer agrees that disclosure is without restriction and will not place MWM under any fiduciary or other obligation. MWM is free to use the Feedback without any additional compensation to Customer, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone.
5. Customer’s Obligations to End Users
Any natural persons accessing or using Customer’s websites, pages, or content created by Customer on the Services are Customer’s “End Users.” MWM does not have a direct relationship with End Users, therefore MWM is not responsible for how Customer handles End User information.
a) Applicable laws. Customer may have additional obligations under local law other than those described in this Agreement. Use of the Services does not ensure compliance with such laws, nor is MWM responsible for Customer’s compliance with such laws. To the extent MWM has any obligations to assist Customer with handling End User information, such obligations are enumerated within a Data Processing Agreement executed between MWM and Customer.
b) Security towards End Users. Customer will use all reasonable efforts to protect information collected from End Users via the use of the Services, including any personal data obtained from unauthorized access or use. In the event Customer discovers that the End User information collected by Customer has been breached, compromised, or inadvertently exposed to non-authorized third parties, Customer shall notify MWM of such a breach or exposure within 72 hours including the root cause, remediation steps, and compensating controls to ensure such a breach does not occur in the future.
c) Security Notification. Customer is responsible for providing notification to its End Users, third parties, or authorities under the applicable breach notification statutes and any other applicable data protection laws. Customer acknowledges that Customer is solely responsible for any personal injury or property damage arising from or relating to Customer’s use of any Services.
d) Privacy. Customer acknowledges and agrees that Customer is solely responsible for providing any required notices and obtaining all required consents from End Users in connection with any use of the Services. Customer’s notice and consent must be compliant with all applicable data protection and security laws and regulations. Without limiting the foregoing, before collecting or using any End User information, Customer must provide adequate notice of the End User information Customer collects, how it will be used and/or shared, and obtain any necessary consents required under the applicable data protection laws and regulations. Customer agrees to comply with all data protection laws and regulations (including those applying to personal information) in connection with Customer’s access and use of the Services.
e) Notice. Customer will provide and adhere to a privacy policy for Customer’s use of the Services that: (i) complies with all applicable laws, rules, and regulations, (ii) is conspicuously displayed to all End Users, and (iii) clearly and accurately describes to End Users what information Customer collects (such as login information, contact form data, cookies, etc.) and how Customer uses and shares such information (including for marketing and advertising) with MWM and other third parties.
f) Privacy rights. Customer will respond to any End Users wishing to exercise their privacy rights, under the applicable law, as it relates to any information collected via Customer’s use of the Services. For example, if End Users located in certain jurisdictions may exercise a “right to be forgotten” (or “erasure”) to the information Customer has collected about them, Customer shall comply with their request as required by applicable law. For clarity, Customer is directly responsible (or, the “data controller”) for the information processed by Customer’s use of the Services, including any information processed via third-party applications available on the Services. MWM is not a data controller to such information and is not responsible for responding to End Users on Customer’s behalf. To the extent MWM receives a request from an End User or authority about Customer’s use of the Services, MWM will notify Customer as permitted by law.
6. Security
6.1 MWM will use procedural, technical, and administrative safeguards designed to ensure the confidentiality, security, integrity, availability, and privacy of Content and other Customer Confidential Information stored in the Services. MWM regularly monitors compliance with these measures. Customer is responsible for reviewing the information made available by MWM relating to data security and making an independent determination as to whether the Services meets Customer’s requirements and legal obligations. Customer acknowledges that MWM's security measures are subject to technical progress and development and that MWM may update or modify such measures from time to time provided that such updates and modifications do not result in a material decrease of the overall security of the Services during a subscription term.
7. Confidentiality
7.1 Confidential Information. Subject to the limitations set forth in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic, electronic, or other form, shall be deemed to be “Confidential Information”. The existence and terms of this Agreement are Confidential Information of both parties.
7.2 Exceptions. Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) is publicly available or in the public domain at the time of disclosure through no fault of the receiving Party; (b) rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (c) already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (d) independently developed by the receiving Party without any use of or by persons who have access to the disclosing Party’s Confidential Information; or (e) is approved in writing for release or disclosure by the disclosing Party without restriction.
7.3 Nondisclosure. During the Term of this Agreement, either Party may disclose Confidential Information to the other Party. Each Party agrees that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party further agrees: (a) to use Confidential Information disclosed by the disclosing Party only for the purposes described herein; and (b) that the receiving Party will not reproduce Confidential Information disclosed by the disclosing Party, except as necessary to carry out the receiving Party's obligations and exercise its rights under this Agreement, and will hold in confidence and protect such disclosing Party's Confidential Information from dissemination to, and use by, any third party.
7.4 Legally Required Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or legal requirement, provided that the receiving Party shall first have given notice to the disclosing Party (to the extent permitted) and shall have provided assistance to the disclosing Party as may be reasonably requested to limit such disclosure.
8. Fees and Payment
8.1 Payment Terms. Customer will pay to MWM, without offset or deduction, all fees due under this Agreement. All payments will be in Euros (€). Unless otherwise specified, all fees shall be due 30 days from the date of MWM's invoice. All amounts will exclude all applicable sales, use, and other taxes.
8.2 Pricing. The Services are offered under different pricing plans, the limits and features of which are available on MWM's pricing page. There is a free subscription to the Services and there are paid self-service subscription plans (“Self-Service Subscriptions”).
8.3 Authorization of Recurring Payments. Some pricing plans involve recurring fees (each, along with any applicable taxes and other charges). Customers on a monthly payment plan will be charged at the next monthly renewal date.
MWM's fees are subject to change, although MWM will notify Customer before any change. Customer hereby acknowledges that the Services have recurring payment features and Customer accepts responsibility for all recurring payment obligations. MWM will automatically charge Customer in accordance with the term of their subscription (e.g., each month, quarter, or year).
8.4 Fair Use. Customer’s subscription offering will be specified on the applicable Order Form or MWM's pricing page. Customer can purchase additional usage and data at the specified rate on the pricing page or in the Order Form. MWM will use commercially reasonable efforts to provide Customer with sufficient bandwidth, builds, and serverless function that MWM determines are typical of projects at Customer’s plan level. MWM will notify Customer if their usage is unreasonable, and may shut down and terminate projects and accounts that are creating an unreasonable burden on MWM's infrastructure and/or business operations.
9. Refunds
9.1 Right of withdrawal. You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, took possession of the last goods. To exercise the right of withdrawal, you must inform us (MWM) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You can use the attached model withdrawal form, but this is not mandatory. You can also send the sample withdrawal form or another clear declaration by email to ben@making-winnerminds.com. To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising your right of withdrawal before the withdrawal period has expired.
9.2 Note for return shipments. The shipping costs incurred shall be borne by the customer.
9.3 The right of withdrawal does not apply to the following contracts. Contracts for the supply of goods which are not prefabricated and for the manufacture of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.
Contracts for the supply of sealed goods which are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery.
In the case of digital products, you agree that your right of withdrawal expires upon execution (i.e. with the order)!
9.4 Consequences of withdrawal. If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us immediately and in any case within fourteen days at the latest from the day on which you inform us of the revocation of this contract. The deadline is met if you send the goods before the period of fourteen days has expired. You shall bear the direct costs of returning the goods. You only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking their condition, properties and functionality.
9.5 Sample withdrawal form. (If you wish to withdraw from the contract, please complete and return this form).
- To making-winnerminds.com,
Email: ben@making-winnerminds.com
- I/we (*) hereby cancel the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
- Ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only for notification on paper)
- Date
(*) Delete as appropriate.
9.6 Special notes. If you finance this contract with a loan and later revoke it, you are no longer bound by the loan agreement if both contracts form a single economic unit. This is to be assumed in particular if we are also your lender or if your lender makes use of our cooperation with regard to the financing. If we have already received the loan when the revocation takes effect or when the goods are returned, your lender shall assume our rights and obligations under the financed contract in relation to you with regard to the legal consequences of the revocation or return. The latter does not apply if the subject of this contract is the acquisition of financial instruments (e.g. securities, foreign exchange or derivatives).
If you wish to avoid a contractual obligation as far as possible, make use of your right of withdrawal and also withdraw from the loan agreement if you are also entitled to a right of withdrawal for this.
10. MWM and Customer Partnership
10.1 Deal. By entering into this contract, Customer automatically enter into a partnership with MWM. After setting up a customer account at MWM, customers receive a unique discount code. If further purchases are made at making-winnerminds.com with exactly this discount code, MWM must pay out a specified sum to the customer belonging to this code.
10.2 Percentage. When a third person uses the specific discount code of a partnered Customer in the store of making-winnerminds.com, MWM has to pay this Customer 50% of the amount won during the transaction. These payouts accumulate over a defined period of time and are paid out to the customer on the 1st of each month.
10.3 Payouts. Payments to Customer will be made via the same payment method used for the original purchase of a product at making-winnerminds.com. This payment method, which is also used for payouts, can be changed by Customer at any time in the profile section of their MWM account.
11. Warranties and Disclaimers
11.1 Authority. Each of MWM and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound, and (d) it is a legal entity in good standing in the jurisdiction of its formation.
11.2 Rights to Content. Customer warrants that it has and will continue to have during the Term all necessary licenses, rights, consents, and permissions which are required to enable MWM to use the Content as required to provide the Services.
11.3 Disclaimer. To the maximum extent permitted by applicable law, the Services, Packages, Components, Templates, content and related services are provided “as is,” and MWM disclaims any and all other representations and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for production or any other purposes, non-infringement, system integration and/or data accuracy. MWM does not warrant that the Services or any other services provided by MWM will meet customer’s requirements or operate uninterrupted or error-free. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. MWM is not responsible for any delays, delivery failures, or other damage resulting from such problems. Neither MWM nor its third-party providers shall have any liability for customer’s use of content, Packages, Components, Templates, or other materials or information made available through or developed using the Services. MWM shall have no responsibility for determining that customer’s proposed use of the Services complies with applicable laws in customer’s jurisdiction(s).
11.4 Warranty limitation. No guarantees are made by MWM with regard to any performance of customers over which MWM has no direct influence. For example, Customer has no right to a refund if desired goals are not achieved. This includes, for example, earning €1000 after 30 days with the services provided. This is merely a prospect that can theoretically be achieved by using the services, but is not a binding guarantee.
12. Limitations of Liability
12.1 Except for claims arising from customer’s misappropriation of MWM's intellectual property rights in the Services: (a) in no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data, or liabilities to third parties arising from any source, even if such party has been advised of the possibility of damages; and (b) the cumulative liability of MWM to Customer for all claims arising from this agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the fees paid to MWM by Customer during the twelve month period prior to the event giving rise to any claim. The foregoing shall not limit Customer’s payment obligations. These limitations upon damages and claims are intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.
12.2 Basis. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability in this Agreement form an essential basis of the Parties’ agreement and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
13. Indemnification
13.1 By Customer. Customer will defend, indemnify, and hold MWM harmless from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent resulting from Customer’s breach or alleged breach of its obligations, representations and warranties under this Agreement, or third party claims that Content, Packages, Templates, or Components created by or on behalf of Customer infringe the intellectual property rights of any third party.
13.2 Process. The foregoing indemnification obligations are subject to the following: (a) the indemnified Party will promptly notify the indemnifying Party of any claim for which indemnification is sought; (b) the indemnifying Party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party's expense.
14. Term and Termination
14.1 Term. Unless otherwise specified in a Order Form, the Term of this Agreement will commence on the Effective Date and will automatically renew for successive terms equal in duration to the initial term unless Customer cancels their plan in advance of the renewal date.
14.2 Purchase from Reseller. If Customer purchases the Services from an authorized reseller of MWM (“Reseller”), Customer’s use of the Services will be governed by this Agreement.
14.3 Termination. Either Party may, at its option, terminate this Agreement in the event the other Party: (a) materially breaches this Agreement and fails to cure such breach (or provide an acceptable plan for curing such breach) within 30 days after receipt by the breaching Party of written notice specifying the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days).
Self-Service subscriptions have the right to terminate their account at any time in the MWM Account Settings. Such termination will be effective at the start of the next billing or renewal period. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
14.4 Suspension. If Customer fails to pay any undisputed amounts hereunder or, as necessary to protect the security of the Services, MWM will have the right, in addition to any of its other rights or remedies, to immediately suspend access to the Services to Customer and/or any of its User(s), without liability, until such amounts are paid in full or such threat no longer exists, as applicable.
14.5 Effects. Upon termination or expiration of this Agreement, Customer will immediately discontinue use of the Services. Sections 3 (Ownership Rights), 7 (Confidentiality), 8 (Fees and Payment), 10 (Limitations of Liability), 11 (Indemnification), 12 (Term and Termination), and 13 (Miscellaneous) will survive such termination. Within ten business days following the termination date, Customer shall, at MWM's option, return to MWM or destroy (and certify to MWM in writing as to such destruction) all copies of the Services and Documentation and any other materials embodying or reflecting the Services and any other MWM Confidential Information. On termination or expiration of this Agreement other than termination by Customer for MWM's breach, Customer will immediately pay MWM, as liquidated damages, the remaining balance (if any) for the remainder of the subscription term.
15. Miscellaneous
15.1 Integration. This Agreement is the entire agreement between the Parties related to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and discussions. You and MWM waive their rights to rescind or annul these Terms. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by MWM, Customer’s purchase order shall be binding only as to the following terms: the Services ordered and the appropriately calculated fees due. Other terms shall be void.
15.2 Construction; Interpretation. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force. No waiver hereunder will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.
15.3 Amendment. MWM may modify this Agreement (which may include changes to MWM's pricing and plans) from time to time by giving notice to Customer by email or through the Services. Unless a shorter period is specified by MWM (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If MWM specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order Form and Customer notifies MWM of its objection to the modifications within 30 days after the date of such notice, MWM (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current subscription term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid fees allocable to the terminated portion of the applicable subscription term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
15.4 Governing Law; Arbitration. This Agreement will be governed by and interpreted in accordance with German law without regard to international law regulations or principles of law leading to the application of other laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the International Chamber of Commerce (ICC) rules. Such dispute or claim shall be settled by simplified arbitration arranged by ICC in accordance with the rules of arbitration procedure adopted by ICC and in force at the time when such proceedings are commenced. Arbitration shall be conducted in Amsterdam, before one arbitrator appointed in accordance with the ICC Rules. All arbitration shall be conducted in English. The award rendered thereon by the arbitrator shall be final and binding on the Parties thereto, and judgment thereon shall be confidential and may be entered in any court of competent jurisdiction. Nothing in this Section 12.2 shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.
15.6 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any event beyond the control of such Party, provided that such Party uses reasonable efforts to notify the other Party of the cause of such delay and to resume performance as soon as possible.
15.7 Notices. All notices, requests, and other communications to the other Party hereunder must be in writing to ben@making-winnerminds.com
15.8 Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
15.9 Counterparts. This Agreement may be executed and delivered by facsimile or electronic signature and in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Note: These Terms of Service do not replace the Terms of Service for those Customers who have a separately negotiated agreement.
