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BY BECOMING A MARKVISS CUSTOMER AND UTILIZINGF ITS SERVICE YOU SIGNUP TO THE MARKVISS SERVICE AGREEMENT.
PLEASE READ THIS AGREEMENT BEFORE USING MARKVISS’S SERVICES.
Following is an excerpt and overview of what the contract outlines:
1. You purchase services on a monthly basis from Markviss in the form of access to software where you can store your data. No ownership of any kind of software is purchased or becomes yours by this contract.
2. The data you enter into the system is yours and your responsibility. We will never use or give anyone access to your data. That includes your email.
3. You will have access to the services for the period you have paid the subscription for. We cannot reimburse paid subscription and you cannot expect access to unpaid services.
4. Our system and your data is stored within the Amazon cloud services. One of the biggest and most secure cloud services out there. Check out https://aws.amazon.com/security/ for further information.
BY ACCESSING OR USING Markviss’S SERVICES, YOU ("the Customer") SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
This Software as a Service Agreement ("Agreement") is entered into between Customer and Markviss LLC. a
Delaware corporation (" Markviss"), with its principal place of business at
16192 Coastal Highway,
Lewes, Delaware 19958
County of Sussex
Markviss and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
"Customer Content" means all data and materials provided by Customer to Markviss or entered into the services in connection with the SaaS Services.
"Software" means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.
"SaaS Services" refer to the specific Markviss’s internet-accessible Software that is hosted by Markviss or its services provider and made available to Customer over a network on a term-use basis.
"Subscription Term" shall mean that period during which Customer will have on-line access and use of the Software through Markviss’s SaaS Services.
2. SAAS SERVICES
2.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for customer’s internal business operations subject to the terms of this Agreement.
2.2 Customer acknowledges that this Agreement is a services agreement and Markviss will not be delivering copies of the Software to Customer as part of the SaaS Services.
Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Markviss shall own all right, title and interest in and to the Software, services, documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Markviss.
4. CUSTOMER RESPONSIBILITIES
4.1 Compliance with Laws.
Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Markviss exercises no control over the content of the information transmitted by Customer through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.2 Unauthorized Use
Customer shall: (a) notify Markviss immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Markviss immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer, and (c) not provide false identity information to gain access to or use the SaaS Services.
4.3 Customer Input.
Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Markviss immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Markviss immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use the Service.
4.4 License from Customer.
Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to Markviss a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
4.5 Ownership and Restrictions.
Customer retains ownership and intellectual property rights in and to its Customer Content. Markviss or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Markviss programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Markviss and not under the Agreement.
Markviss shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer relating to the operation of the SaaS Services.
5. ORDERS AND PAYMENT
Customer shall order SaaS Services online through the SaaS services. All services acquired by Customer shall be governed exclusively by this SaaS Agreement.
5.2 Invoicing and Payment.
Markviss shall invoice Customer for all fees in accordance with the period purchased. Customer shall pay all undisputed invoices within 15 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to Markviss in United States Dollars.
Customer will reimburse Markviss for its reasonable, out-of-pocket travel and related expenses incurred in performing other Services as requested by customer. Markviss shall notify Customer prior to incurring any such expense. Markviss shall comply with Customer’s travel and expense policy if made available to Markviss prior to the required travel.
Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on Markviss’s net income, capital or corporate franchise.
6. TERM AND TERMINATION
6.1 Term of SaaS Agreement.
The term of this SaaS Agreement shall begin on the Date Customer creates an account with Markviss and shall continue until terminated by either party as outlined in this Section.
Either party may terminate this SaaS Agreement at any time.
6.3 Suspension for Non-Payment.
Markviss reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Markviss under this SaaS Agreement. Suspension of the SaaS Services shall not release Customer of its payment obligations under this SaaS Agreement. Customer agrees that Markviss shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services.
6.4 Suspension for Ongoing Harm.
Markviss reserves the right to suspend delivery of the SaaS Services if Markviss reasonably concludes that Customer use of the SaaS Services is causing immediate and ongoing harm to Markviss or others. In the extraordinary case that Markviss must suspend delivery of the SaaS Services, Markviss shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Markviss shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services.
Nothing in this Section 6.4 will limit Markviss’s rights under Section 6.5 below.
6.5 Effect of Termination.
(a) Upon termination of this SaaS Agreement or expiration of the Subscription Term, Markviss shall immediately cease providing the SaaS Services and all usage rights granted under this SaaS Agreement shall terminate.
(b) If Markviss terminates this SaaS Agreement due to a breach by Customer, then Customer shall immediately pay to Markviss all amounts then due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement.
Markviss represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation.
Markviss warrants that the saas services will perform in all material respects in accordance with the documentation. Markviss does not guarantee that the saas services will be performed error-free or uninterrupted, or that Markviss will correct all saas services errors. Customer acknowledges that Markviss does not control the transfer of data over communications facilities, including the internet, and that the saas service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
Neither Markviss nor any of its licensors or other suppliers warrant or guarantee that the operation of the subscription service will be uninterrupted, virus-free or error-free, nor shall Markviss or any of its service providers be liable for unauthorized alteration, theft or destruction of customer’s or any user’s data, files, or programs.
9.LIMITATIONS OF LIABILITY
Neither party (nor any licensor or other supplier of Markviss) shall be liable for indirect, incidental, special or consequential damages, including, without limitation, damages for lost business, profits, data or use of any service, incurred by either party or any third party in connection with this agreement, regardless of the nature of the claim (including negligence), even if foreseeable or the other party has been advised of the possibility of such damages. Neither party’s aggregate liability for damages under this agreement, regardless of the nature of the claim (including negligence), shall exceed the fees paid or payable by customer under this agreement during the subscribed period preceding the date the claim arose.
"Confidential Information" means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as "confidential" or "proprietary," (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be "confidential" or "proprietary" within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this SaaS Agreement, Customer Content is deemed Confidential Information of Customer. Markviss software and documentation are deemed Confidential Information of Markviss.
During the term of this SaaS Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
11.1 Non-Exclusive Service.
Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Markviss’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
11.2 Personal Data.
Customer hereby acknowledges and agrees that Markviss’s performance of this SaaS Agreement may require Markviss to process, transmit and/or store Customer personal data or the personal data of Customer employees and Affiliates. By submitting personal data to Markviss, Customer agrees that Markviss and its Affiliates may process, transmit and/or store personal data. In relation to all Personal Data provided by or through Customer to Markviss, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using Markviss services. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Content, including any information which any Markviss User shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by Markviss under this Agreement, including that such processing according to Customer’s instructions will not place Markviss in breach of applicable data protection laws.
11.3 Force Majeure.
Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.
11.5 Entire Agreement.
This Agreement contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement.
Markviss may include Customer’s name and logo in its customer lists and on its website.
11.7 Export Regulations.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS
Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
11.8 No Third Party Beneficiaries.
This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
11.9 Independent Contractor.
The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
11.10 Statistical Information.
Markviss may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
11.11 Governing Law.
This Agreement shall be governed by the laws of the State of Delaware.
This Agreement is accepted by the customer as he creates an account and uses the Markviss services.