MASTER SERVICE AGREEMENT

This Master Service Agreement (“Agreement”) is entered into by and between Mindee Inc. (“Mindee”) and the entity identified as Client on the Order form (“Client”). 

‍

Any capitalized term used, but not defined herein, will have the meaning given to it in the Service Order. 

‍

1. DEFINITIONS

For the purposes of the Agreement, terms beginning with a capital letter will have the meaning ascribed to them in Schedule 1. Terms mentioned in the singular will also apply in the plural and vice versa, depending on the context.

‍

2. PURPOSE

The purpose of the Agreement is to define the terms and conditions under which Mindee grants the Client the right to access and use the Software for internal purposes. The Agreement also defines the terms and conditions under which Mindee undertakes to provide the Client with the Services.

‍

3. TERM

The Master Agreement will become effective on the date of signature of the Order From by the Parties and will remain in force for an indefinite period. Thereafter, either party may notify the other of the termination of the Framework Agreement by registered letter with acknowledgement of receipt. Termination will be effective after a period of six (6) months from the date of first presentation of this letter by the postal services.

‍

4. ORDERS

Any subscription to the rights to use the Services for the needs of the Client, Affiliated Entities and/or End Clients first requires the execution of an Order Form, which constitutes a separate agreement that incorporates all the provisions of the Master Agreement. Each Order Form will set its effective date and will remain in force for the subscription period that is stated on it. Thereafter, unless terminated in accordance with article “TERMINATION OF THE AGREEMENT” below, the Order Form will be tacitly renewed for the same subscription periods under the same conditions, subject to modifications that may be made to the numbers of Processed Pages by the Client and/or the financial terms and conditions in accordance with article “FINANCIAL TERMS AND CONDITIONS” below. 

When the Client enters the Master Agreement in its own name for its behalf and on behalf of its Affiliated Entities, each Affiliated Entity is authorized to place an order pursuant to the Master Agreement through an Order Form. The Client is responsible for communicating the Master Agreement to the Affiliated Entities. By executing an Order Form, the Affiliated Entity agree to be bound by the terms and conditions of the Master Agreement, which apply mutatis mutandis to the Affiliated Entity as if the Affiliated Entity was the Client, so long as the scope of the Master Agreement remains unchanged. The Client and the Affiliated Entity executing the Order Form are jointly and severally liable to comply with the terms of the Agreement. 

‍

The Client’s and/or an Affiliated Entity’s general terms and conditions that are contained in an Order Form or in a similar document issued by the Client in relation with the Agreement are expressly rejected by Mindee and are null and void. 

‍

Order Forms are issued for the sole purposes of identifying, notably, the Client, the relevant APIs, fees to be paid and the subscription period, they will have no other legal effect.

‍

All orders for additional Requests are made in increments, according to Mindee’s current price list and shall be subject to an additional Order Form.

‍

The number of Pages Processed subscribed to under an Order Form may not be reduced during the term of the current subscription. Subject to prior notification to Mindee no later than sixty (60) calendar days before the expiry of the current subscription, the Customer is free to increase or decrease the number of Pages Processed. The change will take effect on the renewal date of the Order Form.

5. FINANCIAL TERMS AND CONDITIONS 

‍

1. Fees payable by the Client

‍

Fees payable to Mindee for the supply of Services are fixed and non-refundable. They are fixed on the basis of (i) the number of prepaid Processed Pages, (ii) the Nominal Use subscribed to under the Order Form or any subsequent Order Form, and not on the basis of the actual use of the Services by Users and/or End Clients, unless the Client exceeds the number of prepaid Processed Pages subscribed to.

‍

The nominal duration of a Order Form is 12 months. 

‍

If the number of prepaid Processed Pages subscribed to is exceeded :

• The Client may at any time subscribe to a new Order Form by contacting the sales department via his Client account or by e-mail to contact@mindee.co. 
• If the number of Processed Pages specified in the Order Form is exceeded without the Client first subscribing to a new Order Form, the Client undertakes to pay, at the end of the following quarter(s), for the number of Processed Pages in excess of that subscribed to in the initial Order Form, at the price per Processed Page specified in the Order Form.

‍

The Client may at any time, from his Client account, monitor the number of Pages Processed during the month and subscribe to an additional volume of Pages Processed by contacting the sales department via his Client account or by e-mail to sales@mindee.co. 

‍

Except in the case of subscription to an additional volume of Pages Processed, prices are firm for the duration of the Order Order. 

‍

2. Fees payable by End Clients 

‍

When a Client is authorized to distribute the Client Application to End Clients, the Client is free to set the fees payable for use of the Services by the End Clients.

‍

3. Exclusion of additional services 

‍

Fees payable by the Client pursuant to article 5.1 above do not include any additional fees that may be payable for additional support services, such as for the installation or configuration of the API with the Client’s systems, configuration of a Client Application, training for the use of the Platform, which may be the subject of a separate agreement independent from this Agreement. 

‍

4. Taxes and currency

‍

The sums payable to Mindee are expressed exclusive of all tax and, in particular, exclusive of value added tax. The Client will be responsible for the payment of all applicable taxes in effect at the date of the invoice.

‍

All payments will be made in the currency indicated on the invoice issued by Mindee.

‍

5. Payment terms

‍

Mindee will invoice the fees payable by Client for the provision of the Services as set out in the Order Form. Regularization invoices for exceeding the number of Pages Processed set out in the Order form will be sent according to the same frequency or quarterly, the earliest date shall apply. 

‍

Sums payable under this Agreement are payable by bank transfer within thirty (30) days from the date of issuance of the invoice by Mindee. 

‍

Moreover, should the Client fail to pay the adequate fees more than thirty (30) calendar days after the payment due date, Mindee reserves the right to suspend as of right access to the Platform as well as the supply of Services and/or to terminate as of right the Agreement in accordance with article “TERMINATION OF THE AGREEMENT” below, without prejudice to any compensation that Mindee may claim. 

‍

For any subscription made by an Affiliated Entity under an Order Form, the Client remains jointly and severally liable with the Affiliated Entity to pay the fees due under that Order Form. 

‍

6. RIGHT OF USE 

‍

1. Use for internal purposes 

‍

In consideration of the Client’s compliance with the terms of the Agreement and the specifications set in the Documentation, Mindee grants to the Client, for the term of the Agreement, a personal, worldwide, non-exclusive, non-transferable, licence allowing Users:

(i) to access the Platform to embed the API into a Client Application; and

(ii) to use the Services embedded into the Client Application for internal purposes for the needs of the Client and/or the Affiliated Entities, including for the purposes of processing Incoming Data, development, testing or maintenance of the Client Application.

‍

2. Use for distribution purposes 

‍

In consideration of the Client’s compliance with the terms of the Agreement and the specifications set in the Documentation, Mindee grants to the Client, for the duration of the Agreement, a personal, worldwide, non-exclusive, non-transferable, licence, without the right to sub-license, allowing: 

(i) Users to access the Platform to embed the API into a Client Application; and 

(ii) to distribute, directly or indirectly through Affiliated Entities, the Services embedded into the Client Application to End Clients solely for use of the Client Application by the End Clients for internal purposes.

‍

The Client acknowledges and accepts that the Client Application shall not solely provide the functionalities of the Platform, nor shall it be intended to compete with the Platform. The Client Application shall provide added value to the Users and/or aux End Clients compared to the Platform and the Services.

‍

The Client may freely choose its distribution model of the Client Application, such as an on-premises model and/or to host, directly or through Affiliated Entities or a Third Party Service Provider, the Client Application to allow End Clients to access and use the Client Application remotely (such as through a SaaS, PaaS, IaaS or other model). 

‍

Any distribution and sub-license of the Services authorized pursuant to the Agreement shall be made under a Distribution Agreement entered between the Client and the End Client, which shall:

1. protect Mindee’s (and those of its suppliers) property rights in the Services under conditions that are at least as protective as those provided in this Agreement;
2. authorize access to and use of the Services solely from the Client Application;
3. contain restrictions on access and use of the Services from the Client Application that are at least as strict as those provided in this Agreement;
4. not include any undertaking or warranty from Mindee towards the End Client.

‍

7. ACCESS TO THE PLATFORM

‍

1. Connection to the Platform 

‍

Access to and use of the Platform requires an internet connection, at the Client’s expense, and prior registration on the Platform by creating a personal account. When the Client wishes to use the Services on its own behalf, on behalf of the Affiliated Entities and/or the End Clients, the Client is authorized to allow Users to create several Client accounts, it being understood that the number of Processed Pages will be calculated on the basis of the overall use under these Client accounts. Mindee reserves the right at any time to merge the Client accounts into one administrator account accessible by authorized Users. Access to the Client account requires a login and a password to be entered by the Client. The Client is responsible for ensuring that the User IDs remain confidential, and are not communicated to third parties. Client remains liable for any use of the Platform with the Client’s User IDs.

‍

The Client is not authorized to allow End Clients to access the Platform directly, nor to open a Client account. End Clients can only access the Services indirectly, through the Client Application.

‍

2. Prerequisites 

‍

The Client acknowledges and agrees that use of the Platform requires in-depth technical knowledge and skills in development and software integration in order to make the API work with the Client Application and the systems of the Client, the Affiliated Entities and/or the End Clients. 

‍

3. Activation of the Key 

‍

The right granted to access, install and use the API pursuant to this Agreement, is subject to the activation of one or more Keys generated by the Client from its Client account.

‍

4. Installation and use of the API 

‍

The Client is solely responsible for the installation and use of the API by Users and/or End Clients in accordance with the Documentation.

‍

5. Compliance with terms by Users and End Clients 

‍

The Client is solely responsible for the access to and use of the Platform, directly and/or indirectly through the Client Application, by Users and End Clients. It is its responsibility to ensure that each of the Users and End Clients complies with the terms of the Agreement or the Distribution Agreement, as applicable, and the Documentation.

‍

8. RESTRICTIONS ON USE

‍

1. Restriction of rights 

‍

The Client is only authorized to use and allow use of the Platform under the terms and conditions expressly set in the Agreement. Mindee reserves all other rights.

‍

Except for the rights expressly set in the Agreement, the Client undertakes not to, and to ensure that End Clients are not authorized to (i) copy, make available and/or distribute in whole or in part in any way whatsoever the Platform and the Services to third parties other than the Users and/or the End Clients having entered into a Distribution Agreement; (ii) assign, sell, lease, lend, sub-license, distribute, outsource or transfer the rights that have been granted to it under the Agreement; (iii) adapt, modify, including for correction purposes, or translate the Platform, the API or the Software; (iv) disassemble, decompile the Platform, perform reverse engineering, or otherwise attempt to discover or reconstitute its source code, except as specifically authorized by applicable law; (v) alter, destroy or delete notices relating to intellectual property rights or any other reference to Mindee’s ownership appearing on the Platform, the API as well as in the Documentation; (vi) distribute all or part of a software created in whole or in part with the Platform other than the Client Application; (vii) use the Platform for the purposes of benchmarking, or communicate to third parties the results of software performance tests obtained from using the Platform.

‍

2. Restriction on number of Requests and Nominal Use. 

‍

Use of the Platform, directly or indirectly by Users and/or End Clients, is limited to compliance with Nominal Use and the conditions set in the Documentation. The Client undertakes that the Users and End Clients will not make unreasonable and excessive use of it and, generally, that their use will not affect the stability, safety and quality of the Platform.

‍

The SLA does not apply for Requests sent above the limitations for Nominal Use. 

‍

9. INTELLECTUAL PROPERTY

‍

1. Property of Mindee

‍

Mindee and its licensors are and will remain owners of all of the material and intellectual property rights attached to the Platform, the API and the Software. The Agreement does not include any transfer of property to the Client except the temporary right of use granted hereto. The Client undertakes not to infringe, directly or indirectly (such as through the Users and/or End Clients) the property rights of Mindee and its licensors.

‍

2. Property of Client 

‍

The Client, the Affiliated Entities and/or the End Clients as applicable, are and will remain sole owners of the Incoming Data. The Client grants to Mindee a worldwide, for the duration of protection granted by applicable law, license to use the Incoming Data, whether it is supplied by the Client, the Affiliated Entities and/or the End Clients, in order to enable their processing and their storage for processing the Requests and the performance of the Agreement, including without limitation the analysis of Services performance, their improvement and the development of new services. 

‍

10. PERSONAL DATA

‍

Mindee processes Personal Data in accordance with Mindee's Privacy Policy on the Platform, which is incorporated into the Master Agreement by reference. 

‍

Mindee processes Personal Data in accordance with the Data Protection Agreement, which can be accessed at this address: https://www.mindee.com/legals/data-processing-agreement 

‍

11. SERVICES

‍

1. Hosting of the Platform 

‍

During the term of the Agreement, Mindee will host the Platform and the Software on servers located, by default, in the United States. Subject to compliance with the terms of the Agreement and a Nominal Use, Mindee ensures the remote accessibility of the Platform and its availability according to the SLA throughout the term of the Agreement.

‍

Prior to any Maintenance Periods and except in cases of emergency maintenance, Mindee undertakes to inform the Client in advance by all means (such as by e-mail or via a notification on the Platform) that the Platform will be unavailable. The Client acknowledges being informed of the hazards inherent to the internet network and the consequences it may have on the availability and accessibility of the Platform. Mindee will in no event be held liable for the temporary inaccessibility of the Platform due to the Client’s hardware, the Client Application, the End Clients’ hardware or a failure of the internet network. 

‍

2. Security Measures 

‍

The Key to be activated by Client constitutes a technical measure of protection of the API implemented by Mindee. Mindee also endeavours to secure the transmission of Requests that are sent and Results that are generated by the Software through the use of a secure transmission channel (https protocol). 

‍

3. Stockage des Données Client 

‍

Mindee does not store any Client Data on behalf of the Client, the Affiliated Entities and/or the End Clients. Client shall be responsible to ensure the storage and archiving, where applicable, of the Incoming Data sent to Mindee and the Results transmitted by the Platform. Mindee will not be liable in any way whatsoever for any loss or destruction of Client Data.

‍

Data processing operation by Mindee:

• When the API is used in “synchronous” mode, i.e. where initiated Requests are designed to wait for an immediate response from the server before continuing with other operations:

(i) Incoming Data are deleted from Mindee's servers within a few seconds of the Results being provided,

(ii) Results are deleted from Mindee's servers within a few seconds of being communicated to the Client Application.

• When the API is used in “asynchronous” mode, i.e. where initiated Requests are designed not to wait for an immediate response from the server before continuing with other operations:

(i) Incoming Data are deleted from Mindee's servers within a few seconds of the Results being delivered,

(ii) Results are deleted from Mindee's servers at the end of a 30-day period following their communication to the Client Application.

‍

It is the Client’s responsibility to ensure the storage and archiving, where applicable, of Incoming Data communicated to Mindee and Results transmitted by the Platform.

‍

4. Maintenance 

‍

As part of the Services, Mindee undertakes to provide Platform support and maintenance services.

‍

Mindee will ensure that Maintenance does not materially downgrade the functionality of the Software, the API or the Platform compared to the version of the Services available at the effective date of the Agreement. 

‍

1. Corrective support and maintenance 

‍

Corrective support and maintenance services include the following undertakings from Mindee towards the Client:

1. unlimited telephone or e-mail support during Business Hours in French or in English in order to answer questions concerning use of the Platform;
2. Taking Into Account Anomalies;
3. diagnosis and Correction of Anomalies once they have been reproduced by Mindee, according to the SLA.

In case of disagreement between the Client and Mindee over the qualification of an Anomaly, the qualification made by Mindee after its first assessment will prevail.

‍

The Client undertakes to comply with the following Reporting procedure:

• by email,
• by using the messaging tool on the Platform,
• by telephone. 

‍

An Anomaly reported by the Client by telephone and not confirmed by e-mail does not constitute a valid Report. Reporting of an Anomaly requires from Client to provide all information that is useful or requested by Mindee to enable Mindee to assess and reproduce the Anomaly. 

‍

The Client acknowledges and agrees that Mindee undertakes to make its best commercial efforts to provide a Correction, according to the rules of the art. The Correction of an Anomaly means a first technical analysis of the Anomaly to attempt to resolve it and is accompanied by a response from Mindee. The Correction does not include a final resolution of the Anomaly but may come, where applicable, with the provision of a patch or a workaround solution. 

‍

Corrective support and maintenance services do not cover situations where the anomaly results from (i) hardware or software that has not been supplied by Mindee, (ii) Client’s connectivity default, (iii) use of the Platform that is not in conformity with the Agreement and its Documentation, or by unauthorized third parties, (iv) unreasonable and excessive use of the Services, (v) corrupted Incoming Data, (vi) the correction of Results in order to obtain a higher score of confidence, or (vii) Report sent by an un authorized person.

‍

The Client is solely responsible for the maintenance of its Client Application and the supply of maintenance services to its Users and End Clients, it being understood that Mindee expressly reserves the right to correct Anomalies affecting the Platform.

‍

If the efforts undertaken by Mindee reveal that the Anomaly is not from the Platform or within the scope of Maintenance services, Mindee reserves the right to invoice the Client for the time spent at the applicable rate.

‍

2. Evolutive Maintenance 

‍

Evolutive maintenance includes the following undertakings from Mindee towards the Client:

1. the installation of Updates at Mindee’s discretion; and
2. making available Upgrades to the Client.

‍

The Client acknowledges and accepts that installation of an Update is likely to result in the Platform being unavailable during a Maintenance Period.

‍

3. Versions under Maintenance 

‍

Mindee undertakes to provide the Maintenance of the Platform, including Updates and Upgrades according to the terms of the Agreement.

From the time a new version of the API is made available to all customers, Mindee undertakes to continue Maintenance for the immediately preceding version of the API for a period of 12 months in accordance with the terms of the SLA. Beyond this period, the SLA does not apply to the previous version, and Mindee does not guarantee the availability of the API beyond this period.

‍

12. WARRANTIES

1. The Client acknowledges and agrees that the Platform and the Services are provided on an “as is” basis, and without warranty from Mindee. Mindee expressly disclaims any warranty of conformity, of compatibility and of fitness for Client’s particular purposes. The Results are predictions given with a score of confidence set between 0 and 1. Mindee does not warrant that the Results will be error free or that the Platform will operate without interruption. The Client expressly agrees to assume all risks inherent to the access to and use of the Platform and its Results.

‍

2. The Client warrants that the Client Data, transmitted by Users and/or End Clients, do not (i) violate applicable laws; (ii) infringe intellectual property rights or trade secrets of third parties; (iii) contain illegal, hateful, obscene, abusive, threatening or defamatory content; (iv) contain Malicious Code that could harm or corrupt the Platform, and/or (v) constitute an unlawful processing of Personal Data. The Client undertakes, at its expense, to defend and hold Mindee harmless from any action or claim made by a third party (including without limitation claim of infringement, unfair competition, free riding, Personal Data breach) concerning the use of Client Data by Mindee under the Agreement. The Client shall indemnify Mindee for all expenses (including lawyers’ fees), losses and damage that Mindee may incur, together with the amount of any settlement and/or compensation for which Mindee may be held liable. 

‍

13. LIABILITY

‍

Client is responsible to ensure that the Client Data, the Client Application and its hardware are suitably protected. 

‍

The Client shall ensure and represent that Users (including Affiliated Entities and Third Party Service Providers) and End Clients will comply with the terms and conditions of the Agreement. Client remains liable toward Mindee for any breach of the Agreement by a User or an End Client. 

‍

Mindee excludes all liability for inaccuracy, loss or alteration of Customer Data or for consequential damages as defined by Article 1231-4 of the French Civil Code.

‍

To the fullest extent permitted by applicable law, the aggregate amount of Mindee's liability is strictly limited to the amount of the sums paid and due by the Customer under the Agreement during the last twelve (12) months for the API concerned. 

‍

14. FORCE MAJEURE

‍

Except for payment obligations, none of the Parties can be held liable for breach of its obligations under the Agreement, if such breach results from a force majeure event as defined in article 1218 of the French Civil Code and interpreted by French case law, including without limitation in case of a government decision such as the withdrawal or suspension of authorisations whatever they may be, a total or partial strike, internal or external to the company, fire, natural disaster, act of terrorism, war, total or partial interruption or blockage of the telecommunications or electricity network, computer piracy (“Force Majeure”).

‍

The Party reporting a Force Majeure event shall, without delay and by any means, inform the other Party of its impossibility to perform its obligations. The Force Majeure event will suspend performance of obligations. In case of a Force Majeure event lasting more than thirty (30) calendar days, each Party will be free to terminate as of right (ipso jure) the Agreement. Termination will be effective from the day following the notice of termination.

‍

15. ASSIGNMENT AND CHANGE OF CONTROL 

‍

1. Assignment

‍

The Client is not authorized to assign or to transfer, for any reason whatsoever (including without limitation internal reorganization, merger, transfer of assets or by operation of law), the Agreement to a third party without the prior written agreement of Mindee. By exception and subject to the provisions set in article 16.2 below, the Client is authorized to assign or transfer the Agreement in full to any of its Affiliated Entities. Assignment will be effective towards Mindee upon receipt of a notice from Client.

‍

The Client expressly acknowledges and agrees that Mindee reserves the right to assign or to transfer, whether free of charge or not and for any reason whatsoever, the Agreement to (i) any company of the group to which it belongs or (ii) to any third party pursuant to a merger or a transfer (whether in full or in part) of assets or of its business. The assignment will release for the future the assignor from its obligations and liabilities under the Agreement towards the Client. This clause constitutes agreement by the Client within the meaning of articles 1216 and 1216-1 of the French Civil Code. 

‍

The Client acknowledges and agrees that Mindee appoints third party service providers for the purposes of hosting the Platform and providing the Services. Notwithstanding the delegation of all or part of Mindee’s obligations to these third party service providers, Mindee remains liable towards the Client for any breach of the Agreement by its third party service providers according to the conditions set out in article “LIABILITY” above.

‍

2. Change of control 

‍

The Client undertakes to notify Mindee as soon as possible in case of a change of Control of the Client and/or of an Affiliated Entity user of the Services. Mindee reserves the right to terminate as of right the Agreement and/or the Master Agreement upon prior sixty (60) calendar days notice from the receipt of Client’s notification. 

‍

Notwithstanding the foregoing, when an Affiliated Entity is authorized to use the Services, directly or through the Client Application, if the Affiliated Entity ceases to be under the Control of (i) the Client or (ii) the company Controlling the latter, the rights to access and use the Services will immediately terminate as of right. The Client is bound to ensure that the former Affiliated Entity ceases all use of the Services, directly or indirectly through the Client Application, and remains liable for any act or omission of the former Affiliated Entity.

‍

16. TERMINATION OF THE AGREEMENT

‍

1. Termination for cause 

‍

Without prejudice to the other cases of termination of a contract referred to in article 1224 of the French Civil Code, the contract may be terminated by application of this clause in any of the following cases:

• Failure by the Customer to pay the sums due to Mindee, subject to the prior application of the conditions agreed between the parties,
• Failure to comply with the “CONFIDENTIALITY” article,

‍

In the event of the occurrence of one of the aforementioned cases and in the event of possible remediation, the creditor of the obligation breached will notify the defaulting debtor of a formal notice to remedy within thirty (30) calendar days, which will expressly mention the present resolutory clause. Should the non-performance persist, or in the event of impossible remedy, the aforementioned creditor may notify the defaulting debtor of the termination of the present contract by email. This will take effect on expiry of the aforementioned period.

‍

With regard to the other cases of termination of a contract referred to in article 1224 of the French Civil Code, and subject to their seriousness, the creditor of an obligation not referred to in the first paragraph above may, at its own risk, in accordance with the terms and conditions of article 1226 of the same Code, terminate the present contract by notice, subject, except in emergencies, to a reasonable period of time allowing the defaulting debtor to remedy its breach if such remedy is possible.

‍

In accordance with article 1230 of the French Civil Code, termination shall not affect clauses relating to the settlement of disputes, or those intended to be effective even in the event of termination, such as confidentiality or warranty clauses.

‍

2. Termination of the Master Agreement

‍

Termination of one or more Order Forms, for any reason whatsoever, does not automatically trigger termination of the Master Agreement.

‍

The Master Agreement can be terminated under the conditions set out herein. In the event of termination of the Master Agreement, all Order Forms entered pursuant to the Master Agreement shall terminate as of right.

‍

3. Consequences of termination 

‍

In case of termination of the Agreement, for any reason whatsoever, the rights granted to the Client to allow access and use of the Platform by Users and/or End Clients shall immediately terminate and the Client shall cease and have ceased all use of the Services by the Users and the End Clients. Termination shall not affect any rights and obligations of the Parties that have accrued up to such termination. The provisions of the Agreement that are meant to remain into effect (including without limitation the Client’s payment obligations and articles 9, 10, 12 to 14, 18 and 20) shall survive termination.

17. CONFIDENTIALITY

‍

Each Party undertakes, with regards to information of a technical (including without limitation the Platform, the API, the Software and the Documentation), financial, business or otherwise sensitive nature (the “Confidential Information”) of the other Party that it may have had knowledge of prior to or during the performance of the Agreement, to (i) keep it strictly confidential, (ii) not to copy, communicate or make it available to third parties except to their legal representatives, agents, Third Party Service Providers and counsel with a need to know to complete the tasks assigned and provided that they have signed a confidentiality agreement or are bound to professional secrecy obligations guaranteeing a level of protection that is at least equivalent to the provisions of this article, and (iii) not to use it, directly or indirectly, for a purpose other than the performance of this Agreement. 

‍

Each Party will ensure and represent that the parties listed in (ii) above will comply with the obligations of confidentiality.

‍

The obligations of confidentiality do not apply to Confidential Information for which the receiving Party is able to prove that it (i) had fallen into the public domain on the date it was disclosed or at a later date without any breach from the receiving Party, (ii) had been lawfully obtained from a third party not bound by an obligation of confidentiality, (iii) had been developed independently by the receiving Party without breaching the Agreement, (iv) had been disclosed by the disclosing Party or the party to which it belonged, or (v) had been disclosed by the receiving Party with the prior written agreement of the disclosing Party. 

‍

If the Party receiving the Confidential Information is bound to disclose it pursuant to legal or regulatory provisions, a court order or other competent administrative authority, that Party shall first and as soon as possible inform the other Party, in order that allow this latter to object to the disclosure. 

‍

The Parties’ obligations with regard to Confidential Information will remain effective throughout the term of the Agreement and for as long as the information concerned is considered as being information protected by trade secret within the meaning of article L151-1 of the Commercial Code.

‍

Upon termination of the Agreement, each Party undertakes to return or destroy, at the request of the disclosing Party, the other Party’s Confidential Information in its possession or under its control.

‍

18. MISCELLANEOUS

‍

1. Independence. The Parties are and will remain throughout the term of the Agreement independent contracting Parties. The Agreement does not constitute, in any way, an agency agreement, a partnership, a working agreement or a joint-venture between the Parties.

‍

2. Entire Agreement. The Agreement constitutes the entire agreement between the Client and Mindee relating to its subject matter, it supersedes all prior agreements or declarations, whether made in writing or orally. No modification can be made to the Master Agreement without a written amendment signed by the Parties.

‍

3. Notice. Any notice required under the Agreement shall be made in writing and can be delivered by hand or sent by express mail, correctly labelled to the address of the other Party as stated on the first page of the Agreement. Notices (i) delivered by hand will be deemed to have been made at the time of their delivery, (ii) sent by recorded delivery with acknowledgement of receipt will be deemed to have been made upon their first presentation, and (iii) sent by express mail will be deemed to have been made upon their first presentation against signature. Either Party can change its address by sending notice to the other Party.

‍

4. Non-waiver. Failure of either Party to enforce against the other Party any term or condition of the Agreement shall not be deemed to be a waiver or in any way prejudice any right of that Party under the Agreement. Any waiver shall be in writing signed by an authorized representative of the relevant Party.

‍

5. Business reference. The Client expressly authorizes Mindee to use and reproduce, for business reference purposes, the Client’s name, trading name, trademark and/or logos, and make reference to the contractual relationship with the Client on all promotional vectors used by Mindee.

‍

6. Severability. If any provision of the Agreement is determined to be void, inapplicable or unenforceable by virtue of law or by any final court ruling, the remainder of the Agreement shall remain in full force and effect. 

‍

7. Electronic Data. In the event of dispute, the Parties expressly agree, as a convention of proof, that the information collected by Mindee concerning the use of the Platform and the Services by the Client, the Users and/or the End Clients will constitute valid evidence and will be admissible and enforceable between the Parties.

‍

8. Electronic Signature. When the Parties agree to rely on the use of an electronic signature means, whatsoever, made available by a third party for the execution of the Master Agreement and/or any Order Form, the Parties expressly agree that affixing their electronic signature constitutes evidence of their consent to the content of the agreement so that this latter will be enforceable and legally binding to the same extent as if it was received, executed and stored in paper-base format. The Parties acknowledge and accept that computer data recorded by Mindee and/or the provider of the electronic signature means and services relating to the electronic version of the agreement, as well as all technical information related to the use of the electronic signature means will prevail between the Parties and constitute valid evidence that are admissible and enforceable in any proceedings.

‍

19. APPLICABLE LAW AND JURISDICTION 

‍

The Master Agreement and Order Forms are governed by the law of the United States. 

‍

In the event of a dispute between the Parties relating to the Agreement that cannot be solved amicably, the Parties agree to submit to the exclusive jurisdiction of the courts of the county of Santa Clara, California, notwithstanding plurality of defendants or warranty claims, including urgent or interim proceedings, whether they are summary proceedings or application proceedings.

‍

Annex 1 - Definitions

Annex 2 - SLA

‍

Annex 1 to the Master Agreement

-

Definitions

‍

“Affiliated Entity” means any entity that, directly or indirectly, (i) Controls the Client or (ii) is Controlled by (i) and/or by the Client, as long as this Control remains effective during the term of the Agreement. It is understood that the term “Control” has the meaning ascribed by article L233-3 of the French Commercial Code.

‍

“Agreement” means the combination of the Master Agreement and the Order Form(s).

‍

« Anomaly » means a non-conformity with the Documentation, a malfunction or an error affecting the Software and which has been reported by the Client. Anomalies are classified into three levels of severity: Blocking, Major or Minor.

‍

“API” means any program interface provided by Mindee from the Platform for the processing of Requests, as well as Updates and Upgrades made available by Mindee to the Client as part of the Maintenance.

‍

“Blocking Anomaly” means an Anomaly which prevents to send to the Platform a Request or obtain from the Platform a Result that materially conforms to the Documentation.

‍

“Business Days (BD)” means to the days from Monday to Friday, excluding public holidays in mainland France.

‍

“Business Hours (BH)” means the hours between 9am and 8pm in mainland France during Business Days. 

‍

“Client Application” means any software, mobile application or online services created by the Client, which embeds an API, as a value-added service, for the use of the Services by Users and/or End Clients.

‍

“Client Data” means the Incoming Data and the Results.

‍

“Correction” means the efforts undertaken by Mindee, once Taken Into Account, to analyze an Anomaly and provide a patch or a workaround to resolve an Anomaly that has been reproduced on Mindee’s equipment.

‍

“Distribution Agreement” means, when the Client is authorized to distribute the Client Application to End Clients, the agreement entered between the Client and any End Client for the distribution and sub-licensing of the Services.

‍

“Documentation” means the user guide, description of the functionalities of the API and, more generally, any other document relating to the use of the Services and the Platform. The Documentation is available on the Platform from the Client account. 

‍

“End Client” means any third party authorized to use the Client Application for internal use and not for commercialisation, sale or distribution. End Clients do not include the Client, its Affiliated Entities or Third Party Service Providers.

‍

“Incoming Data” means any and all electronic documents and images imported by the Users and/or End Clients into the Platform, through the Client Application, to be processed as Requests.

‍

“Key” means one or several individual API keys delivered by Mindee to the Client for use of the API.

‍

“Maintenance” means the support and maintenance services of the API and Platform provided by Mindee.

‍

“Maintenance Period” means any period during which the Platform is unavailable due to maintenance of the Platform, the API, the Software or their host servers.

‍

“Major Anomaly” means an Anomaly that impairs the functioning of the Platform but does not affect the functionality for sending Requests or supplying Results from the Platform according to the Documentation.

‍

“Malicious Code” means any code, file, program or instruction that may infect or affect the operation of the Services.

‍

“Minor Anomaly” refers to an Anomaly that affects a minor functionality on the Platform or its aesthetics.

‍

“Master Agreement” means this Master Agreement for subscription to the Mindee Platform together with its annexes and any amendments thereto.

‍

“Nominal Use” means the limitations on files sent and the volume authorized for use of an API, as described in the Documentation

‍

“Order Form” refers to the paper-based or electronic-based document issued by Mindee and accepted by the Client describing notably each purchase of an API license, the volume of Processed Pages, the subscription period and the financial terms and conditions that apply. 

‍

“Personal Data” means any personal data within the meaning of applicable law.

“ Platform ” refers to the platform, owned and operated by Mindee, corresponding to a ‘back-office’ allowing the Client (i) to supervise APIs, users, statistics and (ii) to have access to the Results, accessible via a website.

“Processed Pages” means a page processed from Incoming Data. A digital image is considered as a single page.

‍

“Report” means the notification of an Anomaly made by the Client and sent to Mindee by email at support@mindee.co.

‍

“Request” means the order sent for the processing of an Incoming Data by the Software. 

‍

“Result” means the data extracted from Incoming Data following the processing of a Request by the Software.

“Services” means the hosting of the Software and the Incoming Data, the Software, the processing of a Request and the supply of Results as well as Maintenance.

“SLA” means the service levels to which Mindee commits for the provision of the Services, as detailed in Annex 2 to the Master Agreement.

‍

“Software” means any proprietary software developed by Mindee that contributes to the provision of the Services. This includes the Platform and API together.

‍

“Taking Into Account (TAI)” means the initial response of Mindee with effect from receipt of a Report.

‍

“Third Party Service Provider” means any third party authorized by the Client to access and use the Platform on behalf of the Client and/or the Affiliated Entities only. 

‍

“Update” means modifications, corrections, additions made by Mindee to the Software or the Platform to, notably, remedy an Anomaly or improve the functionalities and extraction performance of an API.

‍

“User” means any individual employed by the Client, Affiliated Entities and/or a Third Party Service Provider duly authorized by the Client to access and use the Platform only on behalf of that Client and/or the Affiliated Entities.

‍

“User ID” means the login to identify a Client and the User’s personal and confidential password, which allow the access to the Platform and the use of the Services.

‍

Annex 2 to the Master Agreement

-

SLA

‍

Mindee undertakes towards the Client to make its best commercial efforts to reach the following service level targets: 

‍

1. Availability Rate 

‍

“Availability Rate” means the percentage calculated, per calendar month M, according to the following formula:

‍

Total number of minutes in month M - total duration in minutes of Interruptions over the month MTotal number of minutes in month M

‍

Where an “Interruption” means a situation where the Platform is neither accessible nor usable by the Client, as measured from Mindee’s network.

‍

Where applicable, during the first month of the subscription, the Availability Rate will be calculated prorata temporis to the subscription period. 

‍

The Availability Rate does not include Platform unavailability resulting from (i) Maintenance Periods, (ii) Force Majeure events, (iii) events that are not attributable to Mindee (such as internet network outage, unavailability of the Client’s network or its internet supplier’s network, use that does not comply with Nominal Use, unreasonable or excessive use affecting the stability or safety of the Platform); (iv) interruptions resulting from any act or omission by the Client, its Users, End Clients and/or third parties, (v) modifications made to the Services by the Client, Users, End Clients and/or third parties without the authorization of Mindee; (vi) use of equipment, terminals and/or software of the Client, the Users, or the End Clients that is incompatible.

‍

If Mindee fails to achieve the aforementioned objective at the end of a given month, the Client may claim, within a period not exceeding fifteen (15) calendar days after the end of the month concerned, the payment of penalties, calculated on the basis of the monthly fee for Services, as follows:

‍

Availability Rate - Synchronous Penalties

‍

‍

‍

Penalties are non-cumulative and are calculated quarterly

‍

2. Targets for TIA and Correcting Anomalies

‍

‍

‍

The Correction Target begins from the Taking Into Account and depends upon the Client’s cooperation and the provisions on due time of all the information requested by Mindee. Time running until the information is obtained by Mindee will be deducted from the Correction Target.If Mindee fails to achieve the above-mentioned Correction Target for a given API, the Client may claim, within a period not exceeding fifteen (15) calendar days after the end of the month in which the Anomaly was the subject of the Report, the payment of penalties, calculated on the basis of the monthly fee for the API concerned, in accordance with the terms set out above. The total amount of penalties, for all APIs combined, may not exceed 25% of the monthly fee for Services per month.The Targets for TIA and Correction of Anomalies do not apply in case (i) of failure by the Client to cooperate with Mindee on solving the Anomalies and supply notably information that is reasonably requested by Mindee, (ii) failure to comply with the conditions for Nominal Use of the Platform or with the Documentation, (iii) unauthorized changes to the Services by the Client, the Users, the End Clients or unauthorized third parties, (iv) use of an API version that is no longer maintained by Mindee, or (v) of Force Majeure event.

2.  Response Time Target

‍“Response Time” means the percentage calculated, per calendar month M and subject to compliance with Nominal Use, according to the following formula: Total number of Requests processed in Real Time over the course of month MTotal number of Requests sent over the course of month M according to Nominal Use

1. Response Time Target - API Synchronous 

Target: 95% of Requests must be processed in less than five (5) seconds per page.These times are measured from Mindee's network.If Mindee fails to meet the aforementioned objective at the end of a given month, the Client may claim, within a period not exceeding fifteen (15) calendar days after the end of the month concerned, the payment of penalties, calculated on the basis of the monthly fee for Services, as follows:

‍

‍

‍

The total amount of penalties, for all APIs combined, may not exceed 25% of the monthly fee for Services per month.The Response Time Target does not apply in the event of (i) Incoming Data that is corrupted or does not comply with the Documentation, (ii) unauthorized modification of the Services by the Client, Users, End Clients or unauthorized third parties, (iii) use of a version of the API not maintained by Mindee, or (iv) Force Majeure.

2. Response Time Target - API Asynchronous 

Target: 95% of Requests must be processed within the Async95 Time, defined as the greater of the following two times:

• One (1) minute per Document.
• Five (5) seconds per page.

These times are measured from Mindee's network.If Mindee fails to meet the aforementioned objective at the end of a given month, the Client may claim, within a period not exceeding fifteen (15) calendar days after the end of the month concerned, the payment of penalties, calculated on the basis of the monthly fee for Services, as follows:‍

‍

‍

The total amount of penalties, for all APIs combined, may not exceed 25% of the monthly fee for Services per month.
The Response Time Target does not apply in the event of (i) Incoming Data that is corrupted or does not comply with the Documentation, (ii) unauthorized modification of the Services by the Client, Users, End Clients or unauthorized third parties, (iii) use of a version of the API not maintained by Mindee, or (iv) Force Majeure.

‍

‍