Miva Merchant Service Club
Standard Terms and Conditions
In this fixed-price service, the Customer receives at one previously licensed Product located at one Site, the following: Miva Merchant Service Club includes Telephone and e-mail support as described on the web site of Miva Merchant. Miva Merchant will not perform an in-depth review as part of this Service. Should Customer want to make any addition or change that is set forth in this SERVICE LISTING, the Miva Merchant Project Manager will follow standard change control procedures described in Section 3 below. Miva Merchant will complete all work authorized under change control on a time-and-materials basis at Miva Merchant's then current rates.
2.1 "Confidential Information" means any information disclosed by one party to another under any Agreement which is, prior to or at the time of disclosure, identified in writing as confidential or proprietary.
2.2 "Intellectual Property Rights" means intellectual property rights, including patents, trademarks, design rights, copyrights, database rights, trade secrets and all rights of an equivalent nature anywhere in the world.
2.3 "Product" means Miva Merchant Software.
2.4 "Services" means the services described in any Service Listing.
2.5 "Service Listing" means any offering in Miva Merchant Service List (available at http://www.miva.com/support/services/servclub.html) (a hard copy of which is available to Customer on request), together with such other standard service offerings as the parties may agree from time to time.
2.6 "Software" means: (a) any software programs listed for license or use on http://www.miva.com as published by Miva Merchant from time to time, (b) any Updates, and (c) any related user manuals or other documentation.
2.7 "Updates" means subsequent releases and error corrections for Software previously licensed, as listed for license or use on http://www.miva.com as published by Miva Merchant from time to time.
3. Confidential Information.
A party receiving Confidential Information (the "Recipient") may use it only for the purposes for which it was provided under the Agreement, and may disclose it only to employees or contractors obligated to the Recipient under similar confidentiality restrictions and only for the purposes for which it was provided under the Agreement. These obligations do not apply to information which: (a) is rightfully obtained by the Recipient without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the Recipient; (c) the Recipient develops independently without using Confidential Information of the other party; or (d) is disclosed in response to a valid court or governmental order, if the Recipient has given the other party prior written notice and provides reasonable assistance so as to afford it the opportunity to object.
4.1 In all cases, Customer will pay cash in advance of performance.
4.2 For purchases via www.mivamerchant.com site:
(a) Miva Merchant accepts these payment methods: U.S. credit card (Visa, MasterCard, AMEX), cashier's check, wire transfer, and personal checks.
(b) Miva Merchant reserves the right in its sole discretion to place Customer on credit hold, in which event Miva Merchant will promptly inform Customer and may cancel, delay or reschedule Customer orders.
4.3 Prices and license fees for Services are exclusive of all sales and other taxes based upon the value of the Services. Customer is responsible for payment of all such taxes.
4.4 The prices for Services are as set forth in the applicable price list, shopping cart, or Service Listing. Miva Merchant may modify its prices: (a) for educational Services, at any time ninety (90) days after Customer's order; (b) upon renewal of any Support Services or annually in the absence of renewals, or (c) for any new order.
4.5 Except as provided otherwise in the Service List, all prices for Services are exclusive of:
(a) reasonable travel expenses in the amount actually incurred by Miva Merchant;
(b) reasonable and necessary out-of-pocket expenses associated with Services;
(c) costs incurred by Customer or its employees in connection with their participation in educational services;
(d) transportation and insurance charges; and
(e) the costs of operating supplies and accessories.
5. Acceptance and Delivery.
5.1 Miva Merchant will accept orders for Services submitted on Miva Merchant's website or other mechanism, by issuing a schedule, acknowledgment and/or invoice (each a "Confirmation") to Customer. Each Confirmation, together with this Agreement and the applicable Service Listings constitute a separate, integrated agreement. Miva Merchant may require a purchase order in connection with certain orders and Miva Merchant will notify Customer within 2 business days of any such requirement. miva will perform tasks subject to the terms of this Agreement and in accordance with the Services descriptions contained in the applicable Service Listings (available at: http://www.mivamerchant.com/support/services/servclub.html). Miva Merchant may make substitutions and modifications in Services that do not cause a materially adverse effect in overall Service performance.
6. Remote Services.
6.1 Customer agrees that Miva Merchant may access Products remotely at Customer's site in order to monitor, manage and service them.
6.2 If Customer purchases any Services that are delivered remotely, Customer will:
(a) procure and maintain a gateway allowing Miva Merchant access which is appropriate to the systems or networks involved, at Customer's expense; and
(b) assume responsibility for all telecommunications and Internet access charges related to the remote Services.
6.3 If Customer fails to permit or facilitate remote Services, Miva Merchant may decline to deliver such Services and assess additional charges or other conditions for the delivery of Services which would otherwise be provided remotely, or revoke applicable warranties.
7. No Warranty.
7.1 Miva Merchant and Customer agree that the Services are provided "AS IS" and that Miva Merchant makes no warranty as to the Services whatsoever. MIVA MERCHANT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE SERVICES, THAT THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER, THE RESULTS OF ITS PERFORMANCE AND THIS AGREEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. Some jurisdictions do not allow limitations, so the above limitation may not apply to Customer.
7.2 Customer's sole and exclusive remedy and Miva Merchant's entire liability under this agreement specified in this Section 7 will be the reperformance of Services. Any claim must be in writing and delivered to Miva Merchant within ten (10) days of performance of the Services at issue.
8. Import and Export Laws.
Services and technical data delivered by Miva Merchant may be subject to U.S. export controls or the trade laws of other countries. Customer will comply with all such laws and obtain all licenses to export, re-export or import as may be required after delivery to the Customer. Customer will not export or re-export to entities on the most current U.S. export exclusion lists or to any country subject to U.S. Embargo or terrorist controls as specified in the U.S. export laws. Customer will not use or provide Services or technical data for nuclear, missile, or chemical biological weaponry end uses.
9. Trademarks, Logos and Product Designs.
Customer may refer to Services by the associated Miva Merchant Trademarks, provided that such reference is not misleading and complies with Miva Merchant's Trademark and Logo Policies, which are located at: http://www.miva.com/policies/trademarks (a hard copy of which is available to Customer on request). Customer may not remove or alter any Miva Merchant Trademarks, nor may it co-logo or co-brand Services. Customer agrees that any use of Miva Merchant Trademarks by Customer will inure to the sole benefit of Miva Merchant. Customer agrees not to incorporate any Miva Merchant Trademarks into Customer's trademarks, service marks, company names, internet addresses, domain names, or any other similar designations.
Unless Customer is an individual person, Miva Merchant may use Customer's name in promotional materials, including press releases, presentations and customer references regarding the sale of Products or Services. These permissions are free of charge for worldwide use in any medium. Miva Merchant will obtain Customer's prior approval for publicity that contains claims, quotes, endorsements or attributions by Customer.
11. Damages Limitation.
11.1 Each party acknowledges the full extent of its own liability, arising from: (a) its negligent acts or omissions; or (b) breach of any applicable license grant. Additionally, the nonexcludable statutory rights of consumers (for example, under laws providing for strict product liability) are not affected.
11.2 IN NO EVENT SHALL MIVA MERCHANT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO OR ARISE OUT OF THIS AGREEMENT, THE BREACH THEREOF, THE SERVICES, THE SITE, THE USE OR INABILITY TO USE ANY SOFTWARE, SERVICE, OR HARDWARE, OR ANY DERIVATIVES, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. THE PARTIES FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES AND SHALL BE SEPARATELY ENFORCED.
11.3 Customer agrees that it shall have the sole responsibility for protecting its data used in connection with the Services.
11.4 Except for breach of any applicable license grant and to the extent not prohibited by applicable law:
(a) except for claims of nonpayment, each party's maximum aggregate liability to the other for claims relating to this Agreement, whether for breach or in tort, including negligence, is limited to U.S. $2,000,000; and
(b) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.5 Liability for damages will be limited and excluded, even if any exclusive remedy provided for in this Agreement fails of its essential purpose.
11.6 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer.
12.1 Customer will defend, indemnify and hold harmless Miva Merchant and its officers, employees and agents from and against any claims, liability losses, damages, costs, and expenses including, but not limited to, reasonable attorneysÕ fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arise out of or relate to (a) this Agreement; (b) alleged defects, problems, damages or other losses resulting or occurring from the Services; (c) alleged defects, problems, damages or other losses resulting or occurring from any products created by Customer resulting or in any manner relating to the Services; (d) CustomerÕs transactions with its customers or any other parties; (e) the negligent or willful acts or omissions of Customer; (f) representations or misrepresentations made by Customer; (g) any loss of data or other damage to an end-userÕs computer or other hardware device caused by use of any modifications or alterations to any service, software or hardware created through or pursuant to the Services; provided, however, that Miva Merchant shall promptly notify Customer in writing of any claim and allow Customer to control, and fully cooperate with Miva Merchant in, the defense and all related settlement negotiations. Customer shall additionally defend, indemnify and hold Miva Merchant harmless from all claims, losses, and damages which may arise therefrom. This Section shall survive any termination or expiration of this Agreement. In the event Customer fails to promptly indemnify and defend such claims and/or pay Miva Merchant's expenses, as provided above, Miva Merchant shall have the right to defend itself, and in that case, Customer shall reimburse Miva Merchant for all of its reasonable attorneysÕ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of Miva Merchant's written requests.
13. Software Support.
13.1 Customer Sites. Services will be delivered to the sites ("Customer Sites.") Customer will give Miva Merchant at least thirty (30) days' written notice prior to relocating Customer Site to a new host, which notice must specify the new host. Support of relocated systems is subject to availability and may be subject to additional fees.
13.2 Qualified Personnel. Requests for support may be made only by Customer personnel who (a) possess the necessary expertise and training (as from time to time defined by Miva Merchant) to diagnose and resolve software issues with direction by Miva Merchant, and (b) are designated as "Contacts" in accordance with the applicable Service Listing.
13.3 Exclusions. Support Services do not include support required due to the following events ("Excluded Events"):
(a) improper use, abuse, accident, or neglect;
(b) alterations, modifications, or attempts to repair Covered Systems not authorized by Miva Merchant;
(c) causes external to a Covered System, such as failure to maintain environmental conditions within the operating range specified by the manufacturer;
(d) attachment of a Covered System to equipment, software, or other items not listed on Miva Merchant's then current Enterprise Services price list;
(e) relocations or attempts to relocate Covered Systems; or
(f) failure to maintain software and/or Covered Systems at Miva Merchant-specified minimum release levels or configurations necessary to keep a Covered System within the terms of Miva Merchant's then-current end of life support policy, or to properly install remedial replacement parts, patches, software updates or subsequent releases as directed by Miva Merchant. Services that Miva Merchant delivers as a result of an Excluded Event will be invoiced separately at Miva Merchant's applicable time and materials rates, and are subject to the terms and conditions of this Agreement.
13.4 Eligible Products. Systems and support are available only for Products which are covered by a valid software license and are in good working condition.
14. Customer Obligations.
14.1 General. The delivery of Services is conditioned upon Customer's fulfillment of all applicable Customer requirements. In addition to those requirements specified elsewhere in this Agreement and the Service List, Customer will provide Miva Merchant personnel with reasonable access to all systems as required by Miva Merchant to perform purchased Services. Any additional services which Miva Merchant provides as a result of Customer's failure to fulfill its requirements will be billed separately.
14.2 No Recruiting. Without the prior written consent of Miva Merchant, Customer shall not recruit any personnel assigned by Miva Merchant to perform any Services designated as consulting services for Customer until one (1) year after completion of the applicable Services. "Recruit" means to initiate personal contact for the purposes of hiring, but does not include responding to an unsolicited application, responding to an advertisement without direct contact by Customer, or receiving candidates who are, without Customer involvement, presented to Customer by a recruiting firm. If Customer hires personnel in violation of this provision, Customer immediately will pay Miva Merchant liquidated damages in an amount equal to the hired employee's projected total compensation for the six (6) months preceding the date of hiring.
15. Term & Termination.
15.1 Term. This Agreement is effective as of its acceptance (the "Effective Date"), and continues in effect for so long as an accepted order is in effect hereunder.
15.2 Termination for Cause. Either party may terminate an accepted order: (a) immediately upon written notice to the other party of a non-remedial material breach; or (b) immediately, by written notice to the other party, if the other party fails to cure any remedial material breach within thirty (30) days of being notified of such breach, provided, however, that no right of cure shall apply to Customer's failure to timely pay all amounts due.
15.3 Effect of Termination. Neither party shall be liable for any damages arising out of the termination of this Agreement, any purchase order or Confirmation in accordance with its terms, but such termination shall not affect any right to recover: (a) damages sustained by reason of material breach; or (b) any payments which may be owing under this Agreement or any applicable Confirmation.
16.1 Severability. If any provision of this Agreement is held invalid by any U.S. law or regulation or by any U.S. court having valid jurisdiction, such invalidity will not affect the enforceability of other provisions.
16.2 Force Majeure. A party is not liable under this Agreement for nonperformance caused by events or conditions beyond that party's control if the party makes reasonable efforts to perform. This provision does not relieve Customer of its obligation to make payments then owing.
16.3 All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt or acknowledgment and will be effective upon receipt. Except for modifications to this Agreement, each notice communicated in electronic form will be considered to be written.
16.4 This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
16.5 Compliance with Data Privacy Laws. Customer shall comply with all applicable laws regarding the collection and use of any personal data compiled under this Agreement, and hereby consents to Miva Merchant's use and processing of Customer's data and that of its employees for all purposes contemplated under this Agreement.
16.6 Waiver or Delay. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of nonenforcement.
16.7 Governing Law. California law and controlling U.S. federal law govern any action related to this Agreement. Neither the choice of law rules of any jurisdiction nor the United Nations Convention on Contracts for the International Sale of Goods apply. The venue for litigation will be the appropriate courts located in San Diego County, California.
16.8 Assignment. Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Miva Merchant.
16.9 Availability. Services may not be available in certain locations, and Services may vary between locations. Services are subject to availability of qualified Miva Merchant personnel and facilities and/or may be subject to additional costs or terms and conditions or to payment of minimum applicable fees. Miva Merchant may modify the Service Listing at any time; provided, however, that Miva Merchant will continue to provide Services as set forth in the Service Listing in effect on the date the relevant Confirmation was issued.
16.10 Subcontractors. Miva Merchant may use subcontractors in the performance of its obligations under this Agreement, in which case Miva Merchant will remain responsible for the delivery of Services.
16.11 Order of Precedence. If any inconsistencies arise between the provisions of this Agreement, any Service Listing and/or Confirmation, the following order of precedence shall apply in order of priority:
(1) this Agreement;
(2) the applicable price list, Service Listing; and
(3) the applicable Confirmation.
Miva Merchant Service Club
In this fixed-price service, the Customer receives at one previously licensed Product located at one Site, one of the following: Miva Merchant Service Club "Silver" ‹ Telephone and e-mail support as described on the web site of Miva Merchant and Miva Merchant Mailer Silver. Miva Merchant Service Club "Gold" ‹ Priority telephone and e-mail support as described on the web site of Miva Merchant, VIP identification in our support system and Miva Merchant Mailer Gold. Miva Merchant Service Club "Platinum" ‹ Priority telephone and e-mail support as described on the web site of Miva Merchant, VIP identification in our support system, two 2 free installations for the single licensed copy of the Product, two (2) ten-Point E-Commerce Tune-ups for the single licensed copy of the Product, tune-ups are described on http://www.miva.com, unlimited upgrades and updates for one license copy of the Product and Miva Merchant Empresa (if required) as they become available and at the request of Customer and Miva Merchant Mailer Platinum. Note for all service levels: Customer may only down grade Miva Merchant Service Club levels at the expiration of the term of this agreement. Miva Merchant will not perform an in-depth review as part of this Service. Should Customer want to make any addition or change that is set forth in this SERVICE LISTING, the Miva Merchant Project Manager will follow standard change control procedures described in Section 3 below. Miva Merchant will complete all work authorized under change control on a time-and-materials basis at Miva Merchant's then current rates.
2. Customer Responsibilities
Customer must assign a project manager ("Project Manager") to:
a. Provide direction and guidance to Customer's personnel as required by Miva Merchant to maintain project momentum;
b. Provide information and resources in a timely manner as needed by Miva Merchant to enable Miva Merchant to complete the tasks described in this SERVICE LISTING;
c. Be readily available when required by Miva Merchant for the duration of the Service.
Customer shall provide Miva Merchant with the following:
d. Internet access and access to relevant internal and external systems with any applicable passwords and related information as needed.
If Customer requests a material change in the scope of this Service Listing, as determined by Miva Merchant in its sole discretion ("Change"), Miva Merchant and Customer will review the Change through the change control process set forth as follows:
When Miva Merchant determines a change is material, Miva Merchant will complete the Change Request Form (the "Form") and provide the completed Form to Customer. Both Miva Merchant and Customer will have to provide written approval of the Change detailed in the Form, including the impact of the Change on the schedule, resources, and the price of the Service, before Miva Merchant will make the Change. When Customer accepts the Change set forth in the Form, Customer will modify its P.O. or other forms for payment as requested by Miva Merchant. If Customer does not accept the Change as set forth in the Form (including the impact on the schedule, resources, or price), the Parties will complete their obligations with respect to this Service as set forth in this Service Listing.
4. Customer Responsibilities
Miva Merchant will rely on the following requirements of Customer, together with those stated elsewhere in this Service Listing, in performing the Service. Should any of these assumptions prove to be incorrect or incomplete or should Customer fail to comply with any of the Customer Responsibilities set forth in this Service Listing, Miva Merchant reserves the right to modify the price, scope, or schedule of the Service via the Process.
1. A Miva Merchant representative will be assigned to this engagement and will coordinate project management activities with Customer's project manager. The Miva Merchant representative will have primary responsibility for coordinating all activities for this service, including scheduling resources, and confirming project activities, as well as being the point of contact at Miva Merchant for this Service.
2. Customer staff assigned to support Miva Merchant staff must be properly trained in their area of responsibility (e.g. such as Administrator access to the server).
3. Customer will have valid licenses for all software covered by the Service at CustomerÕs Site, which licenses must cover Miva Merchant's use of the software as well.
4. Customer must be performing backups on a regular basis at the proposed Site prior to Miva Merchant providing the Service. It is presumed that a proper cycle of testing was done during the implementation. This Service will not include end-to-end testing.
5. Miva Merchant shall have no obligation under this Agreement to correct any bugs, defects or errors in any software or hardware at the Site or to otherwise support or maintain any software or hardware at the Site.
6. This Service will be conducted during Miva Merchant's normal local business hours, excluding public holidays.
7. Service schedule estimates represent Miva Merchant's best technical judgment based on information available. Actual Service duration may vary.
8. Miva Merchant reserves the right to use subcontractors in those roles it deems appropriate.
9. The Services described in this SERVICE LISTING will be deemed accepted by Customer upon delivery.
10. Customer agrees that it shall have the sole responsibility for protecting its data used in connection with the Services.
11. The Services or Products or supplemental materials and documents may contain Miva Merchant confidential and proprietary information which is subject to the limitations on use and disclosure as set forth in the Agreement, defined below, between Customer and Miva Merchant.
12. Miva Merchant will not perform the Service on any backup server and client systems where the server and client are separated by a firewall.
13. Miva Merchant will not review any media that contain backup information to validate that the backups were done accurately.
14. Miva Merchant will not design or implement backup and restore policies and schedules under this service nor will Miva Merchant review existing backup and restore Customer policies and schedules.
This agreement is effective for one year from the Effective Date. This Agreement shall renew automatically for additional one-year terms unless either party provides written notice to the other of its intention to terminate this Agreement at least thirty (30) days prior to the expiration of the then-current term.
6. Contract Requirements
In the event that Customer purchases the above-described Service from Miva Merchant, this Service Listing is incorporated by reference in and subject to the terms of the services agreement most recently entered into between Customer and Miva Merchant ("Agreement"). Miva Merchant is not obligated to perform the Services described in this Service Listing unless Customer has an existing services Agreement with Miva Merchant and has received an order confirmation from Miva Merchant accepting Customer's purchase order or electronic order for the Services. This Service Listing does not constitute an offer by or invitation to contract with Miva Merchant. The Services described above are subject to availability and unless otherwise stated, are only available within the above-referenced country.