Last update: Jan 4th 2023
By using the Services, as defined in an applicable Order Form, whether througha paid subscription or a free trial, you agree to be bound by these terms ofservice (“Terms”). These Terms are between you and Marvl Technoligies Inc., aToronto Corporation with a place of business at 175 Bloor Street East #1800,South Tower, Toronto, ON M4W 3R8 , doing business as “Marvl” (“Marvl,” “we,”or “us”). “You” means the entity you represent in accepting these Terms or, ifthat does not apply, you individually. If you are accepting on behalf of anotherentity, you represent and warrant that: (i) you have full legal authority to bindsuch entity to these Terms; (ii) you have read and understand these Terms; and(iii) you agree to these Terms on behalf of the party that you represent.
Your Order Form is created (1) following your purchase of one of our services; or
(2) after registering for a free trial and includes any order confirmation or
ordering documents, related to the Services sent to you and it will specifically
reference these Terms . It contains all of the relevant details about you and your
purchase, including the entity you represent or who you are, your Initial Service
Term, a description of the Services purchased, and, if applicable, your Service
If you do not agree to these Terms or to any other portion of the Agreement youmust not use the Services or register for a free trial.
Capitalized terms used in these Terms are defined throughout these Terms andthe Order Form. The Agreement takes effect when you create a customeraccount on the Marvl website and you click a box indicating acceptance of theseTerms, whichever is earlier, and will remain in effect during the relevantsubscription term or until terminated as specified in these Terms.
1.1 Subscription Services. Marvl will use commercially reasonable efforts to
provide you the Services and applicable support services pursuant to this Agreement. The Services are purchased for the Services Fees as subscriptions for the Initial Service Term, as stated in the Order Form, and are renewable.
1.2 Software and Software License. Marvl will also provide you software,applications, and documentation for implementing or supporting the Services(“Software”) pursuant to this Agreement as part of the subscription. Withrespect to any Software provided to you for use on your devices, we grant you alimited non-exclusive, non-transferable, non-sublicensable license to use suchSoftware during the Term, as defined below, only in connection with theServices.
2.1 Free Trial. If you register for a free trial, Marvl will make the Services andSoftware available to you, under the terms of this Agreement, on a trial basisfree of charge until the earlier of (a) the end of the free trial period for which youregistered, or (b) the start date of any purchased Services subscription that youorder, or (c) the termination of the free trial by us in our sole discretion.Additional trial terms and conditions may appear on the trial registration webpage. Any such additional terms and conditions are incorporated into thisAgreement by reference and are legally binding. A free trial period may beextended upon mutual agreement by Marvl and you.
2.2 No Warranty. Indemnification and Liability for a Free Trial. A free trial is
provided “AS IS.” Marvl MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE
TRIAL. Marvl SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE Marvl’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS US $1,000.
4.1 Usage Restrictions. You will not, directly, or indirectly:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discoverthe source code, object code or underlying structure, ideas, know-how oralgorithms relevant to the Services or Software.
(ii) modify, translate, or create derivative works based on the Services or anySoftware (except to the extent expressly permitted by us or authorized withinthe Services);
(iii) use the Services or Software for timesharing or service bureau purposes orotherwise for the benefit of a third party; or
(iv) modify, remove, or obstruct any proprietary notices or labels.
4.2 Export Control. You may not remove or export from the Canada or allow theexport or re-export of the Services, Software, or anything related thereto inviolation of any export restrictions, laws or regulations of the CanadianDepartment of Commerce, the Canadian Department of Treasury Office ofForeign Assets Control, or any other Canadian or foreign agency or authority.
4.3 Customer Compliance. You represent, covenant, and warrant that you willuse the Services and Software only in compliance with all applicable laws andregulations.
4.4 Consent for Personally Identifiable Information. If you provide us with anypersonally identifiable information about another person, whether through atelephone or video conference recording or otherwise, you represent andwarrant that (1) you have that person’s consent to do so; and (2) such person hasgiven consent, whether explicit or implicit, consent for you to transfer thatpersonally identifiable information if required by any applicable laws, rules, andregulations. You are responsible for ensuring that your (and any of yourpersonnel or representatives, if applicable) use, control, processing andtreatment of such information are in compliance with all applicable laws, rulesand regulations.
4.5 Customer Shall Obtain and Maintain Equipment. You shall be responsiblefor obtaining and maintaining any equipment and ancillary services needed toconnect to, access or otherwise use the Services, including, without limitation,modems, hardware, servers, software, operating systems, networking, webservers and the like (collectively, “Equipment”). You shall also be responsible for(a) maintaining the security of the Equipment, your customer account,passwords (including but not limited to administrative and user passwords) andfiles, and (b) for all uses of your account or the Equipment with or without yourknowledge or consent.
4.6 Non-compliant Use of the Services. Although Marvl has no obligation tomonitor your use of the Services, Marvl may do so and may prohibit any use ofthe Services that it believes may be (or alleged to be) in violation of yourresponsibilities and requirements in this Section 3.
5.1 Ownership. You own all right, title and interest in and to any data providedby you for use of the Services (“Customer Data”). You grant to Marvl anon-exclusive, transferable, sublicensable, worldwide, and royalty-free licenseto use and exploit Customer Data to provide the Services.
5.2 Security. Marvl will maintain appropriate administrative, physical, andtechnical safeguards to protect the security, confidentiality, and integrity ofCustomer Data. Those safeguards will include, but will not be limited to,measures designed to prevent unauthorized access or disclosure of CustomerData.
5.4 Deletion or Return of Customer Data. Upon termination or expiration of this
Agreement, Marvl shall, upon your discretion, delete or make available to you
for retrieval all relevant Customer Data in Marvl’s possession, with the exception of (i) any Customer Data that Marvl is required to retain by an applicable law; and (ii) any Customer Data that is aggregated or anonymized data such that it is not personal information or personal data, as defined by any applicable data privacy laws or regulations.
6.1 Confidential Information. “Confidential Information” means all informationdisclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”),whether orally or in writing, that is designated as confidential or that reasonablyshould be understood to be confidential given the nature of the information andthe circumstances of disclosure. Confidential Information of Marvl includesnon-public information regarding features, functionality and performance of theService, and the terms of this Agreement (including pricing). Your ConfidentialInformation includes Customer Data.
6.2 Exceptions. Notwithstanding anything to the contrary contained herein,Confidential Information shall not include any information that the ReceivingParty can document (i) is or becomes generally available to the public, (ii) was inits possession or known by it prior to receipt from the Disclosing Party, (iii) wasrightfully disclosed to it without restriction by a third party, or (iv) wasindependently developed without use of any Confidential Information of theDisclosing Party.
6.3 Protection of Confidential Information. The Receiving Party agrees: (i) to takereasonable precautions to protect such Confidential Information, and (ii) not touse (except in performance of the Services or as otherwise permitted herein) ordivulge to any third person any such Confidential Information.
6.4 Compelled Disclosure. The Receiving Party may disclose ConfidentialInformation of the Disclosing Party to the extent compelled by law to do so,provided the Receiving Party gives the Disclosing Party prior notice of thecompelled disclosure (to the extent legally permitted) and reasonableassistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contestthe disclosure.
6.5 Confidentiality Term. The confidentiality obligations set forth in this Section5 shall survive for a period of five (5) years from the date of the initial disclosureof the applicable Confidential Information.
The Services and Software are made available on a limited access basis, and noownership right is conveyed to you under this Agreement. Marvl shall own andretain all right, title and interest in and to (a) the Services and Software, (b) allimprovements, enhancements or modifications thereto, and (c) all intellectualproperty rights related to any of the foregoing.
8.1 Fees. You are responsible for paying Marvl the applicable Service Feesdescribed in the Order Form in accordance with the terms therein. Marvlreserves the right to change the Service Fees at the end of the Initial ServiceTerm or then-current renewal term, upon thirty (30) days prior notice to you.
8.2 Invoicing and Payment. Marvl may choose to bill through an invoice, inwhich case, full payment for invoices issued in any given month must bereceived by Company within thirty (30) days the invoice date. Unpaid amountsare subject to a finance charge of 1.5% per month on any outstanding balance, orthe maximum permitted by law, whichever is lower, plus all expenses ofcollection and may result in immediate termination of Service.
8.3 Taxes. The Service Fees do not include any local, state, federal or foreigntaxes, levies, duties or similar governmental assessments of any nature,including value-added, use or withholding taxes (collectively, “Taxes”). You areresponsible for paying all Taxes associated with the purchase of any Services(excluding taxes based on Marvl’s net income or property) unless you provideMarvl with a valid tax exemption certificate authorized by the appropriate taxingauthority. The limitations of liability set forth in Section 10 shall not apply to yourpayment obligations under this Section 7.
9.1 Term and Renewal. Subject to earlier termination as provided below, thisAgreement is for the Initial Service Term as specified in the Order Form, and shallbe automatically renewed for additional periods of the same duration(collectively, the “Term”).
9.2 Notice of Non-Renewal. Unless otherwise specified in your Order, toprevent renewal of your subscription, you or Marvl must give written notice ofnon-renewal at least 30 days prior to the end of the Term.
9.3 Termination. Marvl, at its sole discretion, may terminate this Agreement andclose your customer account(s) in the event you commit any material breach ofthis Agreement and fail to remedy that breach within (30) days after Marvlprovides written notice of that breach to you. You may also terminate thisAgreement in the event Marvl commits a material breach of this Agreement andfails to remedy that breach within (30) days after you provide written notice ofthat breach to Marvl. In the event of any termination, you are still responsible forpaying in full for the Services up to and including the last day on which theServices are provided.
9.4 Survival. The following provisions will survive any termination or expirationof these Terms: Sections 4 (Customer Responsibilities and Requirement), 6(Confidentiality), 7 (Intellectual Property), 8 (Payment of Fees), 10.2 (Disclaimers),11 (Limitation of Liability), 12 (Indemnification), 13 (Non-Solicitation Agreement),14 (Governing Law and Dispute Resolution), and 15 (General Provisions).
10.1 Warranties. Marvl shall use reasonable efforts consistent with prevailingindustry standards to maintain the Services in a manner which minimizes errorsand interruptions in the Services. Services may be temporarily unavailable forscheduled maintenance or for unscheduled emergency maintenance, either byMarvl or by third-party providers, or because of other causes beyond Marvl’sreasonable control, but Marvl shall use reasonable efforts to provide advancenotice in writing of any scheduled service disruption.
10.2 Disclaimers. Marvl DOES NOT WARRANT THAT THE SERVICES WILL BEUNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY ASTO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ANDSOFTWARE ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR APARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY ORCORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL ORCONSEQUENTIAL DAMAGES;
(C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR
(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATEDWITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TOCOMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHSPRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE,WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES.
DDITIONALLY, AS SET FORTH IN SECTION 1.3, Marvl SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE Marvl’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS US $1,000.
12.1 Indemnification for Non-Compliance. You agree to indemnify and holdMarvl harmless from and against any Claims that arise from an alleged violationof your responsibilities and requirements under Section 3 or any otherunauthorized use of the Services. “Claims” means all third-party demands,claims and actions, as well as all associated liabilities, losses, costs, damages,and expenses, including, but not limited to, reasonable attorneys’ fees andexpenses.
12.2 Mutual Indemnification. Each party shall indemnify and hold harmless theother party, and its successors and assigns, from and against any and all Claimsasserted against, imposed upon or incurred by the party resulting from or arisingout of negligence or breach of this Agreement. Notwithstanding the foregoing,as set forth in Section 1.2, Marvl has no indemnification obligation with respectto a free trial.
You agrees that for a period of one (1) year from and after the termination of this Agreement, you shall not directly or indirectly engage, hire, employ, or solicit any employee of Marvl or otherwise induce or attempt to induce any employee, of Marvl to leave the employment of Marvl and, in the event of an unsolicited approach by a current employee, you will not communicate with that individual concerning employment opportunities and will not hire or influence others to hire the individual who is or has been so employed by Company.
14.1 Governing Law. This Agreement shall be governed by the laws of the stateof Ontario without regard to its conflict of laws provisions.
14.2 Dispute Resolution. The parties waive their rights to seek remedies in courtin any jurisdiction, and will resolve any and all claims, disputes, or controversiesrelating in any way to this Agreement ("Disputes") as set forth in this Section.Nothing in this Section will be construed to waive any rights or timelyperformance of any obligations under this Agreement.
(a) The party raising the Dispute will promptly provide the other party with awritten notice reasonably detailing the Dispute (a "Dispute Notice"). The partieswill attempt to resolve the Dispute during the 30-day period after a party'sreceipt of a Dispute Notice.
(b) If the parties cannot timely resolve the Dispute through negotiation, before resorting to arbitration, the parties will try in good faith to settle the Dispute by mediation before a mutually agreed upon mediator. The mediation will be conducted in English and administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. If the parties are unable to agree upon a mutually acceptable mediator, the AAA will appoint a qualified mediator. The mediation proceeding will take place on the earliest practicable date following the submission of a request for mediation by either party, which request will be submitted within sixty (60) days after a party’s receipt of a Dispute Notice.
(c) If the Dispute is not resolved through mediation, the parties will submit theDispute to final and binding arbitration administered under by the AAA under itsCommercial Arbitration Rules. The arbitration will be conducted by a mutuallyagreed panel of 3 neutral arbitrators (or a panel of 3 selected by the AAA if theparties cannot agree). The arbitrators' award may be entered and enforced inany court with competent jurisdiction. The costs of the arbitration proceeding,including reasonable attorneys' fees and costs, will be determined by thearbitrators, who may apportion costs equally, or in accordance with any findingof fault or lack of good faith of either party.
15.1 Severability. If any provision of this Agreement is found to be unenforceableor invalid, that provision will be limited or eliminated to the minimum extentnecessary so that this Agreement will otherwise remain in full force and effectand enforceable.
15.2 Assignment. This Agreement is not assignable, transferable orsublicensable by you except with Marvl’s prior written consent. Marvl maytransfer and assign any of its rights and obligations under this Agreementwithout consent.
15.3 Entire Agreement. This Agreement is the complete and exclusive statementof the mutual understanding of the parties and supersedes and cancels allprevious written and oral agreements, communications and otherunderstandings relating to the subject matter of this Agreement, and that allwaivers and modifications must be in a writing signed by both parties, except asotherwise provided herein.
15.4 Relationship. No agency, partnership, joint venture, or employment iscreated as a result of this Agreement and you do not have any authority of anykind to bind Marvl in any respect whatsoever.
15.5 Notice. All notices under this Agreement will be in writing and will bedeemed to have been duly given
(i) when received, if personally delivered;
(ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail;
(iii) the day after it is sent, if sent for next day delivery by recognized overnightdelivery service; and
(iv) upon receipt, if sent by certified or registered mail, return receipt requested.
15.6 Public Relations. You agree that Marvl may identify you as a customer ofMarvl in advertising, media relations, trade shows, the website, and other similarpromotional activities, using your name and trademarks in accordance with yourtrademark guidelines.