MIVA Service Club
Standard Terms and Conditions
1. Scope.
These MIVA Small Business Standard Service Terms (the "Agreement") govern the
Services provided by MIVA Small Business ("MIVA") to you ("Customer") within
the United States and Germany. By clicking on the "Accept" button at the
point of ordering or otherwise placing an order itself, Customer agrees that
this Agreement governs if Customer is purchasing Services from MIVA via: (a)
MIVA.com website or a third-party affiliate site; and (b) any other
mechanism (including phone order), unless the order is for any Services for
which Customer has already signed a separate service agreement with MIVA, in
which case that separate purchase agreement governs the transaction.
2. Definitions
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 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 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 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. Payment.
4.1 In all cases, Customer will pay cash in advance of performance.
4.2 For purchases via MIVA.com site:
(a) MIVA accepts these payment methods: U.S. credit card (Visa,
MasterCard, AMEX), cashier's check, wire transfer, and personal checks.
(b) MIVA reserves the right in its sole discretion to place Customer on
credit hold, in which event MIVA 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 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;
(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 will accept orders for Services submitted on MIVAÕs 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 may require a purchase order in connection with
certain orders and MIVA 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://smallbusiness.miva.com/support/services/servclub.html). MIVA 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 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 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 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 and Customer agree that the Services are provided "AS IS" and that
MIVA makes no warranty as to the Services whatsoever. MIVA 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'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 within ten (10)
days of performance of the Services at issue.
8. Import and Export Laws.
Services and technical data delivered by MIVA 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 Trademarks, provided
that such reference is not misleading and complies with MIVA'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 Trademarks, nor may it co-logo or co-brand
Services. Customer agrees that any use of MIVA Trademarks by Customer will
inure to the sole benefit of MIVA. Customer agrees not to incorporate any
MIVA Trademarks into Customer's trademarks, service marks, company names,
internet addresses, domain names, or any other similar designations.
10. Publicity.
Unless Customer is an individual person, MIVA 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 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 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. Indemnification
12.1 Customer will defend, indemnify and hold harmless MIVA 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 shall
promptly notify Customer in writing of any claim and allow Customer to
control, and fully cooperate with MIVA in, the defense and all related
settlement negotiations. Customer shall additionally defend, indemnify and
hold MIVA 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 MIVAÕs expenses, as provided above, MIVA shall have the
right to defend itself, and in that case, Customer shall reimburse MIVA for
all of its reasonable attorneysÕ fees, costs and damages incurred in
settling or defending such claims within thirty (30) days of each of MIVAÕs
written requests.
13. Software Support.
13.1 Customer Sites. Services will be delivered to the sites ("Customer
Sites.") Customer will give MIVA 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) to diagnose and resolve software issues with
direction by MIVA, 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;
(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'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-specified
minimum release levels or configurations necessary to keep a Covered System
within the terms of MIVA'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. Services that MIVA delivers as a
result of an Excluded Event will be invoiced separately at MIVA'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 personnel with reasonable access to all systems
as required by MIVA to perform purchased Services. Any additional services
which MIVA 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, Customer
shall not recruit any personnel assigned by MIVA 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
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. General.
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'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.
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 personnel and facilities and/or may be subject to additional
costs or terms and conditions or to payment of minimum applicable fees. MIVA
may modify the Service Listing at any time; provided, however, that MIVA
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 may use subcontractors in the performance of its
obligations under this Agreement, in which case MIVA 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.
16.12 Entire Agreement and Survival. This Agreement and the MIVA Terms of
Use (at http://www.miva.com/support/services/service.termsofuse.html), as
applicable, are the parties' entire agreement relating to their subject
matter. They supersede all prior or contemporaneous oral or written
communications, proposals, conditions, representations and warranties and
prevail over any conflicting or additional terms of any quote, order,
acknowledgment or other communication between the parties relating to their
subject matter during the term of this Agreement and the MIVA Terms of Use.
Rights and obligations under this Agreement which by their nature should
survive, will remain in effect after termination of this Agreement.
MIVA Service Club
1. Scope
In this fixed-price service, the Customer receives at one previously
licensed Product located at one Site, one of the following: MIVA Service
Club "Silver" ‹ Telephone and e-mail support as described on the web site of
MIVA and MIVA Mailer Silver. MIVA Service Club "Gold" ‹ Priority telephone
and e-mail support as described on the web site of MIVA, VIP identification
in our support system and MIVA Mailer Gold. MIVA Service Club "Platinum" ‹
Priority telephone and e-mail support as described on the web site of MIVA,
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 Empresa (if required) as they become available and at
the request of Customer and MIVA Mailer Platinum. Note for all service
levels: Customer may only down grade MIVA Service Club levels at the
expiration of the term of this agreement. MIVA 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 Project Manager
will follow standard change control procedures described in Section 3 below.
MIVA will complete all work authorized under change control on a
time-and-materials basis at MIVA'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 to maintain project momentum;
b. Provide information and resources in a timely manner as needed by MIVA
to enable MIVA to complete the tasks described in this SERVICE LISTING;
c. Be readily available when required by MIVA for the duration of the
Service.
Customer shall provide MIVA with the following:
d. Internet access and access to relevant internal and external systems
with any applicable passwords and related information as needed.
3. Changes
If Customer requests a material change in the scope of this Service Listing,
as determined by MIVA in its sole discretion ("Change"), MIVA and Customer
will review the Change through the change control process set forth as
follows:
When MIVA determines a change is material, MIVA will complete the Change
Request Form (the "Form") and provide the completed Form to Customer. Both
MIVA 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 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. 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 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 reserves the right to modify the price,
scope, or schedule of the Service via the Process.
1. A MIVA representative will be assigned to this engagement and will
coordinate project management activities with Customer's project manager.
The MIVA 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
for this Service.
2. Customer staff assigned to support MIVA 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's use of the
software as well.
4. Customer must be performing backups on a regular basis at the proposed
Site prior to MIVA 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 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's normal local business
hours, excluding public holidays.
7. Service schedule estimates represent MIVA's best technical judgment
based on information available. Actual Service duration may vary.
8. MIVA 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 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.
12. MIVA will not perform the Service on any backup server and client
systems where the server and client are separated by a firewall.
13. MIVA will not review any media that contain backup information to
validate that the backups were done accurately.
14. MIVA will not design or implement backup and restore policies and
schedules under this service nor will MIVA review existing backup and
restore Customer policies and schedules.
5. Term
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. Fees and Expenses
This is a fixed-price engagement. The fee for MIVA Service Club "Silver" is $399 per year. The fee for MIVA Service Club "Gold" is $699 per year. The fee for MIVA Service Club "Platinum" is $999 per year. For payment of the annual contract, Customer agrees to a single charge on Customer's credit card for the applicable amount due for the entire term. Upon termination of the contract term (twelve months), Customer may consider renewal of the membership, in accordance with any revised pricing that may be in effect at that future date.
7. Contract Requirements
In the event that Customer purchases the above-described Service from MIVA,
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 ("Agreement"). MIVA is not obligated to perform the Services
described in this Service Listing unless Customer has an existing services
Agreement with MIVA and has received an order confirmation from MIVA
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. The Services described above are subject to availability
and unless otherwise stated, are only available within the above-referenced
country.
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