Melon AD, a company incorporated under the Bulgarian Law, VAT Number BG200515657, having its registered seat and address at: 20 Kosta Lulchev str., Sofia, Bulgaria (the “Contractor”), gives you (“Licensee”) a license (“Software License”) to install and use Melon LEARNING within Microsoft Teams software (“Software”) on the terms and conditions stated in this document (“Agreement”).
Scope of License. The Software is licensed, not sold. Except for the license expressly granted in this Agreement, Melon, on behalf of itself and its licensors and suppliers, retains all right, title, and interest in and to the Software and in all related content, materials, copyrights, trade secrets, patents, trademarks, derivative works and any other intellectual and industrial property and proprietary rights, including moral rights, registrations, applications, renewals and extensions of such rights. This Agreement gives Licensee the right to install and use the Software only. All other rights are expressly reserved to Melon AD. Licensee may use the Software only as expressly permitted in this Agreement. Licensee must comply with any technical limitations in the Software that allow Licensee to use it in certain ways such as training and e-Learning. The Software License is also restricted to use by the number of users, accounts, software edition and its included modules listed in Description of product section.
Description of Product, Price and Payments
The Melon LEARNING within Microsoft Teams APP can be obtained through Microsoft Marketplace. It requires registration.
Melon LEARNING within Microsoft Teams is hosted at Melon's premises in Sofia, Bulgaria.
Application and database are backed up daily and back-ups are retained for a period of one month.
Version 1.0 of the Melon LEARNING within Microsoft Teams includes the following functionalities:
1) Adding the app allows access to your Melon Learning trainings and catalog
2) Adding trainings as tabs in Microsoft Teams, channels and chats inside Microsoft Teams
3) Posting in a channel/chat about a training being added
4) Using Microsoft Teams comments functionalities to discuss, ask questions and exchange information on a given training
5) Completing trainings and tests entirely from inside Microsoft Teams
|
Module |
License |
|
Melon Learning App |
Free of charge |
|
Content – ready to use e-learning materials |
Free of charge |
|
Add trainings to Microsoft Teams channels and chats |
Free of charge |
No implementation services are included. The app installation is provisioned for self-service
Invoices to and payments by Licensee of the Price shall be made in accordance with this agreement.
Melon AD may change its license fee, implementation services, at any time and from time to time during the term of this Agreement by providing written notice to Licensee.
Users:
A user (“User”) is an individual who is licensed to access the Software and who has an active user name and password within the Software. The Software is licensed for use by unlimited Microsoft Teams Users and unlimited adding a training as tabs in teams, channels and chats inside Microsoft Teams.
Users undertake that:
Melon AD reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Licensee, which notice may be provided by e-mail or by posting in the Service. If Licensee does not agree to the modification of the fees or charges, Licensee may terminate its account by providing notice at least thirty (30) days before the price modification is to take effect. Fees for other services, including Support Services and Installation Services, will be charged on an as quoted basis. All pricing terms are confidential, and Licensee shall not disclose them to any third party.
Limitations on Use. Licensee MAY NOT: 1) work around any technical limitations in the Software; 2) reverse engineer, decompile or disassemble the Software; 3) make copies of the Software and the training content than specified in this Agreement; 4) publish the Software and training content for others to copy; 5) use the Software and training content in any way that is against the law; 6) rent, lease or lend the Software and training content; or 7) use the Software and training content for commercial services.
In addition Users shall not upload, store, distribute or transmit any Viruses, or any material during the course of your use of the Melon Services that: (1) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (2) facilitates illegal activity; depicts sexually explicit images; (3) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (4) causes damage or injury to any person or property;
and Melon reserves the right, without liability to you or prejudice to its other rights, to disable your access to any material that breaches the provisions of this clause.
Copies. Licensee may make and install up to two additional copies of the Software solely for the purposes of testing, provided, however, that the additional copies may in no event be used for the live production import, processing and export of data; and further provided that the copies are marked as the proprietary property of Melon AD.
Documentation. The Software is accompanied by one or more manuals, video tutorials and other documents associated with the Software (“Documents”). The Documents may be used in conjunction with the Software only and may not be given to any third party for any reason whatsoever. Licensee shall destroy the Documents on the termination of the Software Licensee. Licensee may make copies of the Documentation for Licensee’s sole use.
GDPR Data Processing . For any Licensee affected by GDPR, Melon AD requires customer to accept Melon AD’s standard GDPR protections and provides the necessary information for GDPR compliance, included in Privacy Policy.
Limited Warranty. Melon AD warrants that it shall use commercially reasonable endeavours to make the Melon LEARNING within Microsoft Teams will perform as described in its documentation.
If you reasonably determine that the Melon LEARNING within Microsoft Teams does not perform to specification you will give Melon AD written notice, which shall include details of the non-performance.
No Other Warranties. THE LIMITED WARRANTY IS THE ONLY DIRECT WARRANTY FROM MELON AD. MELON AD GIVES NO OTHER EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. WHERE ALLOWED BY YOUR LOCAL LAWS, MELON AD EXCLUDES IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation on and Exclusion of Damages. YOU CAN RECOVER FROM MELON AD ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE MELON LEARNING APP. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
Termination. This Agreement shall terminate automatically upon the violation of its terms by Licensee or upon Licensee’s written notice of termination to Melon AD, whichever occurs first.
Export Restrictions. The Melon LEARNING within Microsoft Teams Software is subject to Republic of Bulgaria laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Melon LEARNING APP. These laws include restrictions on destinations, end users and end use.
Entire Agreement. This Software License (including the warranty above) constitutes the entire agreement for the Melon LEARNING within Microsoft Teams and any associated maintenance and support services that you may elect to pay for either as part of a subscription license fee or through a separate and active annual maintenance and support fee.
Applicable Law. This Software License Agreement shall be subject to and construed and interpreted in accordance with the laws of the Republic of Bulgaria shall be subject to the jurisdiction of the Courts in Sofia, Bulgaria.
1. Definitions
1.1. Terms
For the purposes of this Agreement, the terms listed below are defined as follows:
“Access Authorization” means any certificates, user names, passwords or other security mechanisms issued to Client by Melon AD to enable Client to access the Product.
“Account” is one defined account within the Product that is in use in channels and chats in one specific Microsoft Team.
"Additional Services” means the services provided by Melon AD pursuant to the agreement.
“Agreement” means this agreement for the provision of software products and services in a hosted environment.
“Client” means the party identified in the Microsoft Marketplace.
“Client Data” means all data or information submitted by or on behalf of Client to the Melon Learning app.
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary.
“Documentation” means the Product documentation as provided by Melon AD online.
“Effective Date” means the date at which the Melon Learning all was installed by the client.
“Implementation Services” means the services provided by Melon AD pursuant to an agreement.
“Intellectual Property” means any Melon AD Products, e-learning content or materials (including, but not limited to, manuals, instructions, or presentations) which have obtained or are in the process of obtaining, copyright, patent or trademark protection under the laws of any jurisdiction.
“Price” means the amount Client agrees to pay for Melon AD Product and services as stated in an Agreement.
“Production Environment” means the copy of the Product provided by Melon AD and used for live production import and processing of Client Data.
“Product” means the Melon LEARNING within Microsoft Teams listed in the agreement including corresponding documentation, updates, upgrades or modifications to the software.
"Service" means the online, web-based software-as- a-service application made available to Client by Melon AD, as described in an Agreement.
“Support Services” means the services provided by Melon AD pursuant to this Agreement.
2. Product and Services
2.1. Product
License Limitations. Client does not acquire under this Agreement any right or license to use the Service in excess of the scope or duration, or both, of the Services stated in the agreement. Upon the end of the Services ordered, Client’s right to access and use the Services terminates.
2.2. Services
2.2.1. Implementation Services. Melon AD will provide Client with Implementation Services as specified in the agreement.
2.2.2. SLAs and Support Services. Subject to the Client’s paying to Melon AD all fees under this Agreement.
2.2.3. Changes to Services. Melon AD may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the term of this Agreement, including to reflect changes in technology, industry practices, patterns of system use, and availability of third party content. The Services are subject to change at Melon AD’s discretion.
2.3. Hosting
2.3.1. Security. Melon AD shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Melon AD shall not (i) modify Client Data, (ii) disclose Client Data except as compelled by law or as expressly permitted in writing by Client, or (iii) access Client Data except to provide the Service and prevent or address service or technical problems, or at Client’s request in connection with Product support matters.
2.3.2. Backups. Application and database are backed up daily and backups are retained for a period on one month with the sole use to minimize data loss in the event of an incident. Backups are stored at the primary site used to provide the Service, and may also be stored at an alternate location for retention purposes in encrypted format. A backup is typically retained for a period of 30 days after the date that the backup is made.
2.3.3. Destruction of Client Data. Once Client Data is destroyed by Melon AD as provided in this Agreement, Melon AD shall have no further obligation with respect to the Client Data to Client or any third party.
3. Client Obligations
3.1. Users
Client is responsible for Users’ compliance with this Agreement which shall include any subcontractors or agents with whom Client contracts.
3.2. Access
It is Client’s responsibility: (i) to provide all software, including internet browser software, hardware and communication links necessary to remotely access and use the Product via the secure website address provided by Melon AD , (ii) to ensure that there is no attempt to gain unauthorized access to the Product or related systems or networks , (iii) to ensure that the total number of licensed Users and Accounts is not exceeded, and (iv) to notify Melon AD upon request of all Locations where the Product is being used.
3.3. Responsibility
Client is solely responsible for all activity occurring under Client’s User accounts and with all applicable laws, rules and regulations relating to Client’s use of the Software, including those related to the protection of Intellectual Property, data privacy, international communications and the transmission of technical or personal data.
3.4. Restrictions
Client Internal Business. Client will use the Melon LEARNING within Microsoft Teams only for Client's internal business operations in accordance with the terms of the Agreement and not in direct competition with Melon AD.
Restrictions on Use. Client shall not (i) license, sublicense, sell, resell, transfer, assign, reverse engineer, distribute or otherwise commercially exploit or make available to any third party the Product in any way; (ii) modify or make derivative works based upon the Product; (iii) create internet “links” to the Product or “frame” or “mirror” any content on any other server or wireless or internet- based device; or (iv) access the Product in order to build a competitive product or service, or (v) modify, adapt or translate the Product; or (vi) transmit or share identification or password codes to persons other than Users; (vii) access the app for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; and (viii) use any automated tool (e.g. robots, spiders) to access or use the app.
Compliance with Laws. Client agrees that its use of the Service will be in a manner consistent with this Agreement and that complies with all applicable laws and regulations, including without limitation, all Privacy Laws, copyright, trademark, patent, trade secret and export control laws, as well as those laws prohibiting the use of telecommunications facilities to transmit illegal, obscene, threatening, harassing, or other offensive messages. Client acknowledges that Melon AD shall not be responsible and shall have no liability for any use or misuse of the Service by Client or its Users, employees or contractors.
4. Proprietary Rights
4.1. Reservation of Rights.
Except for the rights expressly granted herein, all rights, titles and interests to any and all proprietary rights and intellectual property rights, including but not limited to copyright and patent rights, in the Service including, without limitation, the Product and any Document, will remain with, and be the exclusive property of, Melon AD. Except as expressly stated herein, these Terms do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Melon Services. You shall have no rights to the Services when your Subscription terminates.
You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, (1) access all or any part of the Melon Services in order to build a product or service which competes with the Melon Services; (2) use the Melon Services to provide services to third parties; (3) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Melon Services available to any third party, or (4) attempt to obtain, or assist third parties in obtaining, access to the Melon Services.
4.2. Client Data.
Except for the rights expressly granted to Melon AD in this Agreement, all Client Data shall remain the sole property of Client and is deemed to be Confidential Information.
4.3. Client Use Data
Client acknowledges and agrees that Melon AD may obtain and aggregate technical and other data about Client’s use of the Service excluding any personally identifiable data with respect to Client. Melon AD may use the Client Use Data to analyze, improve, support and operate the app during and after the term of this Agreement. This section does not give Melon AD the right to identify Client as the source of any Client Use Data.
5. Confidentiality and Privacy
5.1. Protection
Client acknowledges that the Product embodies logic, design and coding methodology that constitute valuable Confidential Information that is proprietary to Melon AD. Client will safeguard the right to access the Service, using the same standard of care that Client uses for its own confidential materials, being at least a reasonable standard of care. Client Data will be held as confidential by Melon AD and will not, without the prior written consent of Client, or as required by applicable law, be disclosed or be used for any purposes other than as expressly permitted herein or the performance of this Agreement.
5.2. Exclusions
The obligations of a party as recipient of the other party's Confidential Information to maintain confidentiality does not apply to such of the Confidential Information of the other party that: (i) is or becomes, through no act or failure to act on the part of the recipient party, generally known or available to the public; (ii) is known by the recipient party at the time of receiving such information as evidenced by its written records; (iii) recipient party by a third party, as a matter of right and without restriction on disclosure; or (v) is the subject of a written permission to disclose provided by the disclosing party.
5.3. Compelled Disclosures
The disclosure of Confidential Information will not be precluded if such disclosure: (a) is in response to a valid order of a court or other governmental body having jurisdiction over the recipient party; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
5.4. Privacy
Melon AD warrants and represents that, Melon AD is complying and will fully comply with, all applicable privacy laws throughout the term of this Agreement. Melon AD may collect, use, retain and disclose Personal Information as outlined in Melon AD's Privacy Policy that is posted, amended and updated from time to time as a link from the Service or on Melon AD's website. Client warrants and represents that Client is in compliance, and will fully comply, with all applicable privacy laws and will take all reasonable steps within Client's power to ensure that Client's Users, employees, contractors and Clients comply as well.
5.5. EU Data Protection Law
To the extent Client Data is protected by, or otherwise regulated by, EU Data Protection Law, the terms set out in the Privacy Policy.
5.6. Limitation of Liability
Limitation.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MELON AD HEREBY EXCLUDES FOR ITSELF, AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING WITHOUT LIMITATION, ANY THIRD PARTY PROVIDING THIRD PARTY SERVICES), ANY LIABILITY IN EXCESS OF THE FEES PAID BY CLIENT TO MELON AD DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OR ACT OR OMISSION GIVING RISE TO THE CLAIM (THE "COMPENSATION AMOUNT"), HOW EVER CAUSED, WHETHER BASED IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE.
Limited Liability. MELON AD SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ECONOMIC LOSS, LOSS OF REVENUE OR PROFITS OR INVESTMENT OR THE LIKE, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OF OTHER FINANCIAL LOSS, PROPERTY DAMAGE OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE SERVICES AND THE SOFTWARE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR MELON AD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MELON AD SHALL HAVE NO LIABILITY TO ANY THIRD PARTY OTHER THAN CLIENT CLAIMING RIGHTS UNDER THIS AGREEMENT. THERE ARE NO RIGHTS UNDER THIS AGREEMENT FOR ANY THIRD PARTY BENEFICIARY. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
6. Mutual Indemnities
6.1. Indemnification by Melon AD
Defense in Proceedings. Melon AD, at its expense, will defend and indemnify Client from and against any claims, proceedings, actions or demands which may be brought against Client by any third party alleging that Client's use of the Service or the Product infringes a patent or copyright, or misappropriates a trade secret of that third party. Melon AD shall have the right to assume full conduct of the defense against the claim in the name of Client, to appoint such legal counsel as Melon AD may elect, and to litigate, settle or compromise the claim as Melon AD may see fit in its sole discretion, provided that Melon AD will not settle or compromise the claim on a basis that results in an admission of liability by Client, or in Client having to pay any sum of money related to the claim, unless Client has first agreed in writing. Client will fully cooperate with Melon AD in the defense of the Claim at Melon AD's cost.
6.2. Limitation. The foregoing obligation of Melon AD to indemnify Client shall not apply to the extent that (a) Client has failed to give prompt written notice to Melon AD of the claim; (b) Client has modified the Service in a manner that makes the Service infringing where otherwise it would not be; (c) Client has combined the Service with other software, products or services in a manner that makes the Service infringing where otherwise it would not be; (d) the infringement arises, or is alleged to arise, from a modification to the Service or the Product developed or made by Melon AD for Client at Client's direction and to Client's specifications; or (e) the infringement is due to the actions, or failure to take action, of a third party.
Melon AD Right to Cure. In the event of a Claim, Melon AD, in its exclusive discretion, may elect to (i) modify the Service so that the Service no longer infringes or misappropriates; (ii) obtain a license for Client to continue to use the Service; or (iii) terminate this Agreement and refund to Client the unused portion of any pre-paid charges or fees. Melon AD's obligation to indemnify Client, shall be Melon AD's only obligation in the event of a third party claim of intellectual property infringement, and Client's exclusive remedy.
6.2. Indemnification by Client. Client will defend Melon AD, its Affiliates, officers, directors, employees, agents, contractors, representatives, successors and assignees from and against any and all claims, proceedings, actions or demands which may be brought against Melon AD or another of the indemnified parties and Client shall indemnify and hold Melon AD and the other indemnified parties harmless from and against any and all losses, damages, liabilities, costs and expenses (including, but not limited to, legal fees on a solicitor and client basis) real or perceived, that occur, or that Melon AD may suffer, sustain or incur, as a result of (A) Client’s misuse of the Services, or (B) Client’s breach of this Agreement. Client will have sole control of the investigation, preparation, defense and settlement of any such claims and Melon AD shall make reasonable efforts to provide cooperation and assistance in any such investigation, preparation, defense and settlement. Melon AD may engage separate counsel to monitor the defense at Melon AD’s sole cost and expense. Client will indemnify the indemnified parties against any claim by a third party seeking to enforce rights under this Agreement. This section shall survive the termination or expiration of this Agreement.
7. Termination
Termination for Cause. Either party may terminate this Agreement for material breach by the other party which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied. Termination for breach will not preclude the terminating party from exercising any other remedies for breach available to it under applicable law. In the event that Client becomes insolvent, or is placed in receivership or equivalent status, or files or is petitioned into bankruptcy or similar protection from creditors under any statute, Melon AD may terminate this Agreement immediately. Upon termination or expiry of this Agreement, Client will cease to have any right to access or use the Service and Client will immediately return to Melon AD any Confidential Information of Melon AD provided to Client by Melon AD or on its behalf.
Effect of Termination. Following termination or expiry of this Agreement all licences granted under these Terms shall immediately terminate including any right of Users to access the Services.
Melon AD will retain Client Data for a period of up to thirty (30) days, following which Client Data may be destroyed by Melon AD without further notice, and without any liability to Client. Delivery of Client Data to Client following termination or expiry of this Agreement shall be subject to availability, solely at the discretion of Melon AD, and shall be subject to additional charges payable to Melon AD at its then-current rates for delivery of Client Data, and shall be by the means, and in the format, made available by Melon AD.
The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
Suspension of Service. Melon AD shall have the right, on notice to Client, to suspend access to the Service in the event Client has breached this Agreement or is in default of payment. Melon AD shall also have the right to suspend access to the Service without notice in circumstances where the Service is under threat, or subject to attacks, or subject to technical failures or events beyond the control of Melon AD, whether as a result of Client's conduct, the conduct of third parties, or otherwise, in order to avoid harm to the Service or the data of Melon AD's Clients, or to preserve the integrity of the Service or data available to Clients using the Service.
8. Other Terms and Conditions
Relationship. Melon AD is and at all times remains an independent contractor and is not responsible in any manner for the conduct, management or operation of Client’s business. Neither party may bind or obligate the other to any third party in any manner.
Non-Waiver. The failure by one party to require performance of any provision of this Agreement shall not affect that party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Force Majeure. Neither party is responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, war, epidemics, pandemics, shortage of power, or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event shall notify the other party promptly and use its best efforts to mitigate the effects of the force majeure on this Agreement.
Payment and Taxation. Client is responsible for the payment of all sales, use, value added and other taxes and duties levied by any taxing authority. Melon AD will invoice for, and Client will pay, all such taxes as required to be collected by Melon AD as a matter of law. In the event of Client being required to withhold taxes by any taxing authority in whose jurisdiction Client operates, Client agrees to remit to Melon AD the full amounts identified as payable and invoiced in accordance with the terms of the Order after deduction of such withholding tax.
Export Compliance. The Product and associated services, other technology Melon AD makes available, and derivatives thereof may be subject to export laws and regulations of the Republic of Bulgaria and other jurisdictions. Each party represents that it is not named on any government denied-party list.
Assignment. You shall not, without the prior written consent of Melon, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
Melon may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
8.1. Public Relations
Publicity. At the request of Melon AD and subject to any restrictions imposed by Client, Client agrees to participate in any one or more of the following activities: a press release; as a reference for other prospective users of the Product; assisting Melon AD in developing a case study which may be made available to prospective users or resellers of the Product in print or electronically or made available on the Melon AD public website, provided, however, that no Confidential Information of Client will be disclosed.
Identification of Client. Client consents to being identified as a Client of Melon AD and to the use by Melon AD of its name and logo for display on the Melon AD website and Melon AD promotional documentation including presentations to other prospective Melon AD Clients, client listings and brochures.