Section A: Terms and Conditions for Use of the Portal
These are the terms and conditions governing your access to and use of the (the “Portal”, and/or “Marketplace”) and its related sub-domains, sites, services and tools. By accepting these terms and conditions (including the linked information herein), and by using this Portal, you represent that you agree to comply with these terms and conditions with Mindware in relation to your use of the Portal (the “Agreement“). This Agreement is effective upon acceptance. If you do not agree to be bound by this Agreement please do not access, register with or use this Portal.
Before you may become or continue as a Partner of Mindware, you must read, agree with and accept this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
“we”, “us” and “our” and “Mindware” means Mindware FZ LLC
“you” and “yourself” and “Partner” and “Customer” means the reseller or Partner placing the order of the Products from us.
“End User” means a third party that receives Products from Partner, Mindware or Mindware’s Suppliers for use in its internal business operations, and not for resale or redistribution.
“Supplier” and “Manufacturer” and “Vendor” and “Product Owner” means the entity granting Mindware the right to sell and license the Products and Services.
“Products” means all the Products listed for sale by Mindware;
“Services” means all the Services listed for sale by Mindware;
“Order (s)” means any order placed by the Partner whether an electronic order or traditional order.
“Terms” means these terms and conditions;
“Initial Term” means the initial minimum period of 12 months, or such other period specified in Mindware’s proposal, marketplace or any other official document provided by Mindware for the purpose of selling and delivering any Products or Services.
“Mindware’s Marketplace” means Mindware Portal where Partner can subscribe and purchase Products and Services.
Your Account and Registration Obligations
When you register as a Partner to this Portal you have been or will be required to provide certain information and register a username and password for use on this Portal.
On becoming a Partner, you agree:
- You are responsible for maintaining the confidentiality of, and restricting access to and use of, your account and password, and accept responsibility for all activities that occur under your account and password. You agree to immediately notify Mindware of any unauthorised use of your password or account or any other breach of security. In no event will Mindware be liable for any direct, indirect or consequential loss or loss of profits, goodwill or damage whatsoever resulting from the disclosure of your username and/or password.
- You agree to reimburse Mindware for any improper, unauthorised or illegal use of your account by you or by any person obtaining access to the Portal, services or otherwise by using your designated username and password, whether or not you authorised such access.
- You will provide true, accurate, current and complete information about the Company as prompted by Mindware registration form (the “Credit Application Form”).
- You will maintain and promptly update the Credit Application Form to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete or if Mindware has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, or not in accordance with this Agreement, without prejudice to any other rights and remedies of Mindware under this Agreement or at law, Mindware has the right to indefinitely suspend, limit or withdraw your access to the Portal and/or your membership.
2. Product Content and Specifications
All features, content, specifications, products and prices of products and services described or depicted on this Portal, are subject to change at any time without notice. Mindware makes all reasonable efforts to accurately display the attributes of the products. The inclusion of any products or services on this Portal at a particular time does not imply or warrant that these products or services will be available.
3. Copy Right
All content included on the Portal, including but not limited to text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software, is the property and copyright work of either Mindware, its content suppliers or its licensors and is protected by copyright, trademarks, patents or other intellectual property rights and laws. The compilation of the content on the Portal is the exclusive property and copyright of Mindware and is protected by copyright, trademarks, patents or other intellectual property rights and laws.
4. Limitation of Liability
Neither Mindware nor its affiliates and service providers shall be liable for any direct, indirect, incidental, consequential, or punitive or other damages or losses of any kind whatsoever arising out of your access to, or use of, the Portal, including but not limited to any failure of performance, error, omission, interruption, defect or computer virus, or the deletion, failure to store, misdelivery or unavailability of any information, material, products, services, applications or features, even if advised of the possibility of such damages or losses. Mindware’s maximum liability to you for all claims, including but not limited to negligence, shall in no event exceed the amount you paid to Mindware for any products which you purchased through this Portal.
By using the Portal, you agree to release and hold harmless Mindware, its affiliates, its subsidiary, its parent company; officers, directors and employees from any all claims, demands, damages, costs and expenses of any kind whatsoever relating in any way to use of the Portal or any materials downloaded from this Portal. Some jurisdictions do not allow the exclusion of implied warranties or certain forms of damages, so some of the above exclusions may not apply to you. To the extent that any term of this agreement is held inapplicable by a court, the rest of the terms in this agreement shall nevertheless remain in force.
Section B: Terms and Condition for Purchase
1. Orders
Unless otherwise stated on the quote, Mindware quotes are subject to change at any time without notice, all Orders are subject to acceptance by Mindware. Partner may not change, cancel or reschedule Orders without Mindware’s consent. Mindware reserves the right to allocate the sale of Products and/or Services among its Partners.
Unless otherwise stated on Mindware’s Marketplace, proposal, quote or invoice: (a) prices are for Products and/or Services only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services (collectively, “Additional Fees”); and (b) Partner shall pay any Additional Fees. Prices may be changed by Mindware for any reason prior to delivery, including manufacturer price increase, change in exchange rate or a quoting error.
3. Terms of Payment
Payment is due as stated on Mindware’s invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, Mindware may charge penalties from the payment due date to the date of payment at 10% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs. At any time, Mindware may change the terms of Partner’s credit. Mindware may apply payments to any of Partner’s accounts. If Partner defaults on any payment, Mindware may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Partner credits provided by Mindware will expire if unused within 12 months.
4. Product and/or Services Content and Specifications
All features, content, specifications, products and prices of products and services described or delivered by Mindware, are subject to change at any time without notice. Mindware makes all reasonable efforts to accurately display the attributes of the products.
5. Delivery, Shipment and Title
- Shipment of Physical Products (Hardware)
Delivery of physical Products will be made ex-works Mindware’s warehouse, freight paid in accordance with its standard freight policy in effect at the time of shipment. Mindware will comply with all reasonable shipping and handling instructions received prior to shipment. Partner shall bear the cost of normal, special or express shipping services, which it may request.
Partner may examine the Products promptly upon receipt thereof. No later than five (5) days after receipt, Partner shall notify Mindware of all claimed shortages or damaged Products, or if rejection is intended, shall specify all grounds there for. Failure to give such notice shall be deemed an acceptance of the Products as of the date of shipment.
All risks of loss or damage to Products shall pass to Partner at the time of delivery to carrier or shipper. Order shall not be refused for no actual reason.
Assignment of title and ownership of the Products shall occur once payment is made by Partner in full, even if delivery already occurred.
Shipment and/or delivery dates that may be indicated by Mindware are non-binding. Mindware shall not be liable for any delay due to Force Majeure. Orders will be shipped to Partner’s registered shipping address or directly to the designated End User.
- Shipment of non-physical Products (Software)
Software Products purchased through the Marketplace or through a PO placed directly by the Partner to Mindware and that are electronically delivered are deemed delivered when made available to Partner or End User for electronic download by Mindware or Mindware’s Suppliers. Delivery dates, even electronically, that may be indicated by Mindware are non-binding. Mindware shall not be liable for any delay. License and service subscriptions may be electronically delivered directly to the designated End User.
6. PROPRIETARY RIGHTS IN SOFTWARE
The Partner hereby acknowledges that any proprietary rights in any Product and/or Services supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights shall at all times and for all purposes rest and remain vested in the Product and/or Services Owner.
The Partner hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of license attaching to Products and/or Services supplied and delivered by Mindware (including if so required the execution and return of a Product and/or Services license). Partner is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software license or having the same revoked by the Product and/or Services owner. Partner further agrees to indemnify Mindware in respect of any costs, charges or expenses incurred by Mindware at the suit of a Product and/or Service owner as a result of any breach by the Partner of such conditions.
No title or ownership of software products or products of any software products or any third-party software licensed under this agreement is transferred to the customer under any circumstance.
7. PRIVACY
If you place an order, you will have to provide personal information to us. We will not disclose that information to any third party without your consent, except for the purpose of processing the order and arranging delivery.
8. Warranty
Neither Mindware nor Supplier makes any representations, warranties, guarantees or conditions, express or implied, regarding the Products and/or Services (a) to End Users, other than as expressly set out in its warranty form, or (b) whatsoever to Partner or any other party.
In particular, (but without limiting the generality of the foregoing) all representations, warranties, guarantees and conditions, whether expressed or implied, as to merchantability or fitness for any particular purpose are expressly excluded. Partner shall not make any additional representations, warranties or conditions in the Mindware’s and/or Supplier’s name, and shall make no representations, warranties or conditions in its own name which are inconsistent with the nature or functionality of the products or their proper use.
9. Product Return
Partner may return Products to Mindware or the Manufacturer only with a return material authorization (“RMA”) number issued by the Manufacturer. (A) Returns for Visual Defect: Partner must notify Mindware in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within five (5) business days after receipt of the shipment; otherwise, Partner is deemed to have accepted the Products. (B) Returns for Product Warranty: Partner must notify Mindware in writing stating the specific Product defect within the warranty period. Mindware will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by Mindware or the Manufacturer, and only if Partner meets the notice requirement. Mindware will not grant RMAs for damage, shortage, or other discrepancy created by Partner, the carrier or freight provider if the shipment is handled by the Partner, or any other third party. Upon receiving the RMA, Partner must return the Products to Mindware in compliance with Mindware’s instructions in the RMA. Mindware may assess all Products returned by Partner via RMA. If Mindware or the Manufacturer determine such Products are not eligible for return, Mindware will send such Products back to Partner on freight collect basis, or hold such Products for Partner’s collection and on account at Partner’s expense.
10. Exclusion of Liability
Neither Mindware nor Supplier makes any representations, warranties, guarantees or conditions, express or implied, regarding the Products AND/OR SERVICES (a) to end-users, other than as expressly set out in its warranty form, or (b) whatsoever to Partner or any other party.
In particular, (but without limiting the generality of the foregoing) all representations, warranties, guarantees and conditions, whether expressed or implied, as to merchantability or fitness for any particular purpose are expressly excluded. partner shall not make any additional representations, warranties or conditions in the Mindware’s and/or Supplier’s name, and shall make no representations, warranties or conditions in its own name which are inconsistent with the nature or functionality of the products or their proper use.
IN NO EVENT WHATSOEVER, MINDWARE SHALL BE HELD LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL LOSS.
11. NOTICES
If you wish to give us any notice relating to a matter covered by these Terms, whether you have or not communicated the same by phone, you must confirm that notice in writing. In the case of email notices, these are to be sent to [e-mail address] and they are deemed to have been received only when you get a proper acknowledgement of receipt by return email from our side. Notice may be as well be sent by first class post to [office address of Mindware].
12. Force Majeure
Mindware is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Partner, operational disruptions, man-made or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
13. Use of Products
Partner shall comply with the Manufacturer’s Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Partner uses or sells the Products for use in such applications or fails to comply with the manufacturer’s Product specifications, Partner acknowledges that such use, sale, or non-compliance is at Partner’s sole risk. Partner shall indemnify, defend and hold Mindware and its Vendors harmless from any claims based on: (i) Mindware’s compliance with Partner’s specifications, or instructions, (ii) modification of any Product by anyone other than the Manufacturer, or (iii) use of Products in combination with other not authorised products or in violation of this clause.
14. Export/Import Compliance
All Products and related technology sold by Mindware are subject to export control regulations of the United States, the European Union, and/or other countries, excluding boycott laws (“Export Laws”). Partner shall comply with such Export Laws and obtain any license or permit required to transfer, export, re-export or import the Products and related technology. Partner shall not export or re-export the Products and related technology to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United States, European Union or other countries. Partner shall not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction. You also undertake that you are aware of the Export Compliance document provided by Mindware and duly signed by you.
15. Electronic and non-Electronic Orders
If any part of the purchase and sale of Products, including Partner’s NCNR acknowledgment or demand forecast, uses EDI, Partner’s internal Marketplace, third party Marketplace or any other electronic means (“Electronic Purchase Order”), or any non-Electronic Purchase Order placed by the Partner, this Agreement will continue to apply to the purchase and sale of Products between Partner and Mindware. Partner’s acceptance of Mindware’s acknowledgment request or Mindware’s specification of details with respect to Electronic Purchase Orders via writing, email or another EDI is binding on Partner.
16. General
- Partner may not assign this Agreement without Mindware’s prior written consent. Mindware’s affiliates may perform Mindware’s obligations under this Agreement. This Agreement is binding on successors and assigns.
- The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
- Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
- If you breach these Terms and Conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms and Conditions.
- Partner shall comply with all applicable laws, including anticorruption laws such as U.S. Foreign Corrupt Practices Act and UK Bribery Act.
- Partner undertakes to immediately notify Mindware of any financial issues included but not limited to insolvency, bankruptcy, etc. related to his business that may cause delay or cease of payment.
- These Terms and Conditions constitute the entire Agreement between Mindware and the Partner, Mindware reserve the right to add additional terms and conditions to its quotes and Partner acknowledge and agrees that he shall be bound by the additional terms and conditions enumerated in any quote provided by Mindware as if such terms and conditions were enumerated in the body of this Agreement.
- The parties agree that electronic signatures may be used and will be legally valid, effective, and enforceable. Product information (for example, statements or advice (technical or otherwise advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Mindware on an “AS IS” basis and does not form a part of the properties of the Product. Mindware makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Mindware recommends Partners to validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Mindware is not responsible for typographical or other errors or omissions in Product information.
17. Term and Termination
This Agreement shall remain in force for an Initial Term starting from the electronic acceptance and execution of the Partner to the Agreement. Upon expiration of the Initial Term, the Agreement may automatically renew as per these Terms and Conditions for the purchased Products and/or Services. When applicable, it is the Partner’s responsibility to manage their subscription and renew and/or terminate their subscription as defined by these Terms and Conditions and/or other relevant documents associated with the purchase of such Products and/or Services that constitutes the Agreement.
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Terms and Conditions or revoke any or all of your rights granted under the Terms and Conditions. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Marketplace where applicable and Mindware shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Marketplace in whole or in part. Any termination of this agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination. You furthermore agree that Mindware shall not be liable to you or to any other person as a result of any such suspension or termination.
18. WAIVER
If we fail, at any time during the term of the Agreement, to pursue the strict performance of any of your obligations under the Agreement or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Agreement or by law, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
A waiver by us of any default shall not constitute a waiver of any subsequent defaults.
No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
19. DISCLAIMER AND LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SERVICES, THIS AGREEMENT, OR A PARTY’S PERFORMANCE OR ASSERTED FAILURE TO PERFORM HEREUNDER EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID BY PARTNER UNDER THIS AGREEMENT AND ALL ORDERS REGARDLESS OF WHETHER SUCH CLAIM FOR LIABILITY IS ALLEGED TO ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
IN NO EVENT SHALL MINDWARE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS ARISING OUT OF, OR IN CONNECTION WITH, THE PRODUCTS, SERVICES AND/OR SOLUTIONS OR PARTNER’S PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT REGARDLESS OF WHETHER MINDWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, PARTNER SHALL BEAR FULL LIABILITY -NOT SUBJECT TO LIMITATION- AND INDEMNIFY MINDWARE FOR ANY THIRD-PARTY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SERVICES AND/OR SOLUTIONS AS WELL AS FOR ANY BREACH OF INTELLECTUAL PROPERTY AND CONFIDENTIALITY UNDERTAKINGS.
20. Governing Law
These terms and conditions (and any agreement into which they are incorporated) shall be interpreted in accordance with and governed by the laws of United Arab Emirates.
Any dispute or difference arising out of the contents of this Agreement, including those considered as such by only one of the Parties, shall be settled by amicable settlement. In the event that any Dispute or difference cannot be settled amicably between the Parties after thirty (30) days of negotiation, it shall be settled in accordance with the jurisdiction of Dubai Courts.
Appendix A: Applicable to Partners purchasing Microsoft Products and/or Services
Partner must provide each End User with a Microsoft Customer Agreement (MCA) and must ensure that each End User accepts the terms of the MCA. Partner will be responsible to confirm that the End User has accepted the MCA by providing a record of such acceptance (providing the acceptance date, name of signatory and other relevant details) upon the creation of any new subscriptions and ensure that all End User’s information provided are true, complete and accurate in all respects, and is not misleading or deceptive. Failure to provide such record of acceptance through the confirmation process or through a Microsoft enabled Customer Agreement acceptance process shall constitute an event of default and may result in disablement of End User’s account.
Partner should not purchase Products and/or Services, related to Microsoft Cloud Solution Provider Program, for its own use, nor resell such Products and/or Services to or through Affiliates; by failing to comply with this provision, the Partner will be held responsible and liable to Mindware and Microsoft. Mindware may exercise its right to audit under this provision any time it believes that Partner or any of its representatives is in violation of this provision.
