General conditions for services of:
Johan Huizingalaan 400
1066 JS Amsterdam
hereinafter referred to as "the user"
Article 1 Definitions
- In these terms and conditions, the following terms have the following meanings unless expressly stated otherwise.
User: the user of the general requirements.
Client: the user's counterparty.
Agreement: the agreement for the provision of services.
Article 2 General
- These terms and conditions apply to every offer, quotation, and agreement between the user and a client to which the user has declared these conditions applicable, insofar as these conditions have not deviated explicitly and in writing by the parties.
- These conditions also apply to all agreements with the user, for the implementation of which third parties must be involved.
- Any deviations from these general terms and conditions are only valid if they have been expressly agreed in writing.
- The applicability of any purchase or other conditions of the client is expressly rejected.
- If one or more of the provisions in these general terms and conditions are null and void or should be annulled, the other provisions of these general terms and conditions remain fully applicable.
User and client will then enter into consultation in order to replace new provisions of the void or nullified provisions to be agreed, whereby if and for as much as possible the purpose and intent of the original provision are observed.
Article 3 Offers and quotations
- All offers are without obligation unless the offer contains a term for acceptance.
- The offers made by the user are without obligation; they are valid for 30 days unless otherwise indicated. The user is only bound by the offers if the acceptance thereof by the other party will be confirmed in writing within 30 days unless stated otherwise.
- The prices in the aforementioned offers and quotations are exclusive of VAT and other levies of government, as well as any costs to be incurred under the agreement, including shipping and handling costs, unless otherwise indicated.
- If the acceptance differs (on minor points) from the offer included in the quotation user not bound to it. The agreement will then not come in accordance with this derogation acceptance established unless the user indicates otherwise.
- A compound quotation does not oblige the user to perform part of the assignment at a corresponding part of the stated price.
- Offers or quotations do not automatically apply to future assignments.
Article 4 Execution of the agreement
- The user will perform the agreement to the best of his knowledge and ability and in accordance with the requirements of good performance craftsmanship. All this on the basis of the current state of science.
- If and insofar as required for the proper execution of the agreement, the user has the right to have certain activities performed by third parties.
- The client shall ensure that all data, which the user indicates are necessary or which the client should reasonably understand to be necessary for the execution of the agreement, are provided to the user in a timely manner. If the information required for the execution of the agreement has not been provided to the user in time, the user has the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay in accordance with the usual rates.
- User is not liable for damage, of whatever nature, because the user has assumed incorrect and/or incomplete information provided by the client unless this is incorrect or incompleteness should be known to the user.
- If it has been agreed that the agreement will be executed in phases, the user can suspend implementation of those parts that belong to the next phase until the client has approved the results of the preceding phase in writing.
- If by the user or third parties engaged by the user in the context of the assignment activities are performed at the location of the client or by a client designated location, the client will take care of the employees within reason desired facilities.
- The client indemnifies the user against any claims from third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.
Article 5 Changes to the agreement
- If during the execution of the agreement it appears that it is for a decent implementation is necessary to change or supplement the work to be performed, the parties will adjust the agreement accordingly in time and in mutual consultation.
- If the parties agree that the agreement will be changed or supplemented, the time of completion of the performance is affected. The user will inform the client of this as soon as possible.
- If the amendment or addition to the agreement will have financial and/or qualitative consequences, the user will inform the client about this in advance.
- If a fixed fee has been agreed, the user will indicate to what extent the amendment or supplement to the agreement will result in this fee being exceeded.
- Contrary to paragraph 3, the user will not be able to charge additional costs if the change or addition is the result of circumstances that can be attributed to the user.
Article 6 Contract duration
- The agreement between the user and a client is entered into for an indefinite period unless the nature of the agreement dictates otherwise or the parties expressly and in writing differently agree.
- If a term has been agreed within the term of the agreement for the completion of certain activities, this is never a strict deadline. If the execution term is exceeded, the client must therefore give the user written notice of default.
Article 7 Indexation
- The User is entitled, during the agreement, to increase the rates annually on 1 July based on the price index figures (consumer price index for all households) as determined and published by the Dutch Statistics Agency (CBS) with a minimum indexation of 2%.
Article 8 Fee
- Parties can agree on a fixed fee when the agreement is concluded.
- If no fixed fee is agreed upon, the fee will be determined on the basis of hours actually spent. The fee is calculated in accordance with the user's usual hourly rates, applicable for the period in which the work is performed unless a deviating hourly rate has been agreed.
- The fee is and any cost estimates are exclusive of VAT.
- For assignments with a term of more than three months, the costs owed will be charged periodically.
- If the user agrees to a fixed fee or hourly rate with the client, the user is nevertheless entitled to increase this fee or rate.
- Furthermore, the user is entitled to pass on price increases if the rates with regard to wages, for example, have increased between the time of offer and delivery.
- In addition, the user may increase the fee if during the performance of the work it appears that the originally agreed or expected amount of work was estimated to such an extent when the agreement was concluded, and this is not attributable to the user, that the user cannot reasonably be expected to may be expected to perform the agreed work for the originally agreed fee. In that case, the user will inform the client of the intention to increase the fee or rate. In doing so, the User will state the extent of and the date on which the increase will take effect.
Article 9 Payment
- Payment must be made within 30 days of the invoice date, in a manner to be indicated by the user in the currency in which the invoice is made. Objections to the amount of the invoices do not suspend the payment obligation.
- If the client fails to pay within the period of 30 days, the client is legally in default. In that case, the client owes an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest applies. The interest on the amount due and payable will be calculated from the moment that the client is in default until the moment of payment of the full amount.
- In the event of liquidation, bankruptcy, seizure, or suspension of payment of the client, the claims of the user on the client are immediately due and payable.
- User has the right to have the payments made by the client go first of all to reduce the costs, then to reduce the interest due, and finally to reduce the principal sum and the current interest. User can, without being in default, as a result, refuse an offer of payment if the client designates a different order for the allocation. The User may refuse full repayment of the principal if the outstanding and accrued interest, as well as the costs, are not also paid.
- User has the option to charge a credit restriction fee of 2%. This surcharge is not due if payment is made within 7 days of the invoice date.
Article 10 Retention of title
- All goods delivered by the user, possibly including designs, sketches, drawings, films, software, (electronic) files, etc., remain the property of the user until the client has fulfilled all the following obligations under all agreements concluded with the user.
- The client is not authorized to pledge the goods that are subject to retention of title nor to object in any other way.
- If third parties seize the goods delivered subject to retention of title or wish to establish or enforce rights thereon, the client is obliged to inform the user of this as soon as can reasonably be expected.
- The client undertakes to insure and keep insured the goods delivered subject to retention of title against fire, explosion, and water damage as well as against theft and to make the policy of this insurance available for inspection on the first request.
- Goods delivered by the user, which are subject to retention of title pursuant to the provisions under 1. of this article, may only be resold in the context of normal business operations and may never be used as a means of payment.
- In the event that the user wishes to exercise his property rights referred to in this article, the client already now grants unconditional and irrevocable permission to the user or third parties to be designated by him to enter all those places where the user's property is located and to take back.
Article 11 Collection costs and fines
- If the client is in default or fails to fulfill one or more of its obligations, then all reasonable costs incurred in obtaining payment out of court will be borne by the client. If the client fails to pay a sum of money on time, he forfeits an immediately due and payable fine of 15% on the amount still owed. This with a minimum of € 50.00.
- If the user has incurred higher costs, which were reasonably necessary, these also qualify for compensation.
- Any reasonable judicial and execution costs incurred will also be borne by the client.
- The client owes interest on the collection costs incurred.
Article 12 Research, complaints
- Complaints about the work performed must be reported to the user in writing by the client within 8 days after discovery, but no later than 14 days after completion of the work in question. The complaint must contain as detailed a description as possible of the shortcoming so that the user is able to respond adequately.
- If a complaint is justified, the user will still perform the work as agreed, unless this has become demonstrably pointless for the client in the meantime. The latter must be made known in writing by the client.
- If the performance of the agreed work is no longer possible or useful, the user will only be liable within the limits of article 15.
Article 13 Cancellation
Both parties may terminate the agreement in writing at any time.
- If the agreement is terminated prematurely by the client, the user is entitled to compensation for the resulting and plausible loss of occupancy, unless the termination is based on facts and circumstances that can be attributed to the user. Furthermore, the client is then obliged to pay the invoices for work performed up to that point. The provisional results of the work performed up to that point will therefore be made available to the client subject to reservation.
- If the agreement is terminated prematurely by the user, the user will, in consultation with the client, arrange for the transfer of work still to be performed to third parties, unless the termination is based on facts and circumstances that can be attributed to the client.
- If the transfer of the work entails additional costs for the user, these will be charged to the client.
Article 14 Suspension and dissolution
User is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if:
- The client or user does not or not fully comply with the obligations arising from the agreement.
- After concluding the agreement, the user becomes aware of circumstances that give good grounds to fear that the client will not fulfill its obligations. If there are good grounds to fear that the client will only partially or not properly comply, the suspension is only permitted insofar as the shortcoming justifies it.
- When concluding the agreement, the client was requested to provide security for the fulfillment of its obligations under the agreement and this security is not provided or is insufficient.
- Furthermore, the user is authorized to dissolve the agreement (or have it dissolved) if circumstances arise that are of such a nature that fulfillment of the agreement is impossible or can no longer be required according to standards of reasonableness and fairness, or if other circumstances arise of such a nature. that unaltered maintenance of the agreement cannot reasonably be expected.
- If the agreement is dissolved, the user's claims against the client are immediately due and payable. If the user suspends the fulfillment of the obligations, he retains his claims under the law and the agreement.
- The user always reserves the right to claim compensation.
Article 15 Return of goods made available
- If the user has made goods available to the client during the execution of the agreement, the client is obliged to return the delivered goods within 14 days in their original condition, free of defects and in full. If the client does not comply with this obligation, all costs arising from this shall be for his account.
- If the client, for whatever reason, after a reminder to that effect, still fails to comply with the obligation referred to under 1., the user has the right to recover the resulting damage and costs, including the costs of replacement, from the client.
Article 16 Liability
- If the user is liable, then this liability is limited to what is in this determination is arranged.
- If the user is liable for direct damage, then that liability is limited to a maximum of twice the invoice amount, at least that part of the assignment to which the liability relates, at least to a maximum of € 1,000 (in words: one thousand euros). The liability is at all times limited to a maximum of the amount of the payment to be made by the user's insurer in the appropriate case.
- Notwithstanding the provisions under 2. of this article, in the case of an assignment with a duration longer than six months, the liability is further limited to the fee part owed over the last six months.
- Direct damage is exclusively understood to mean:
- The reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions;
- Any reasonable costs incurred to have the defective performance of the user comply with the agreement unless these cannot be attributed to the user;
- Reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions
- User is never liable for indirect damage, including consequential damage, lost profit, lost savings, and damage due to business interruption.
- The limitations of liability for direct damage included in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of the user or his subordinates.
Article 17 Indemnities
- The client indemnifies the user against claims from third parties with regard to intellectual property rights on materials or data provided by the client, which are used in the execution of the agreement.
- If the client provides the user with information carriers, electronic files or software, etc., it guarantees that the information carriers, electronic files, or software are free of viruses and defects.
Article 18 Transfer of risk
- The risk of loss or damage to the goods that are the subject of the agreement transfers to the client at the moment when they are legally and/or actually delivered to the client and thus under the control of the client or of a third party to be designated by the client.
Article 19 Force majeure
- Parties are not obliged to fulfill any obligation if they are prevented from doing so as a result of a circumstance that is not due to fault, and is not for their account under the law, a legal act, or generally accepted views.
- In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in the law and jurisprudence, all external causes, foreseen or unforeseen, which the user cannot influence, but as a result of which the user is unable to fulfill its obligations. This includes strikes in the user's company.
- The user also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment occurs after the user should have fulfilled his obligations.
- The parties can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party.
- Insofar as the user has partially fulfilled or will be able to fulfill his obligations under the agreement at the time of the occurrence of force majeure, and the part fulfilled or to be fulfilled has independent value, the user is entitled to separately fulfill the part already fulfilled or to be fulfilled. to declare. The client is obliged to pay this invoice as if it were a separate agreement.
Article 20 Confidentiality
- Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information.
- If, on the basis of a statutory provision or a court decision, the user is obliged to also provide confidential information to third parties designated by the law or the competent court, and the user cannot invoke a legal or competent court recognized in this regard. or permitted right of non-disclosure, then the user is not obliged to pay compensation or indemnification and the other party is not entitled to dissolve the agreement on the basis of any damage caused by this.
Article 21 Intellectual property and copyrights
- Without prejudice to the other provisions of these general terms and conditions, the user reserves the rights and powers vested in that user under the Copyright Act.
- All documents provided by the user, such as reports, advice, agreements, designs, sketches, drawings, software, etc., are exclusively intended to be used by the client and may not be reproduced, published, or published by him without the user's prior consent. to third parties, unless the nature of the documents provided dictates otherwise.
- User reserves the right to use the knowledge gained through the performance of the work for other purposes, insofar as no confidential information is disclosed to third parties.
Article 22 Samples and models
- If a sample or model has been shown or provided to the client, it is presumed to have been provided only as an indication, unless it is expressly agreed that the product to be delivered will correspond to this.
- In the case of an order relating to immovable property, mention of the surface or other dimensions and indications is also presumed to be only intended as an indication, without the product to be delivered having to correspond to this.
Article 23 Non-takeover of personnel
- During the term of the agreement and one year after its termination, the client and user will in no way whatsoever, except after proper business consultation has taken place with the user, employees of the user, or of companies that the user has called upon for the execution of this agreement, and who are (or have been) involved in the execution of the agreement, hire them or otherwise, directly or indirectly, have them work for them.
- If the client or user violates the provisions of Article 22.1, an immediately due and payable fine of EUR 2,500 will apply for each violation.
Article 24 Disputes
- The judge in the place of business of the user has exclusive jurisdiction to hear disputes, unless the subdistrict court has jurisdiction. Nevertheless, the user has the right to submit the dispute to the competent court according to the law.
- The parties will only appeal to the courts after they have made every effort to settle a dispute in mutual consultation.
Article 25 Applicable law
- Dutch law applies to every agreement between the user and the client.
Article 26 Change, explanation, and location of the conditions
- These terms and conditions have been filed at the office of the Chamber of Commerce in Amsterdam.
- In the event of an explanation of the content and purport of these general terms and conditions, the Dutch text thereof is always decisive.
- The most recently filed version or the version that applied at the time of the conclusion of the agreement is always applicable.
Article 27 Restrictions
- The client will not access, store, distribute and transmit any material while using the services that:
- Contains a virus;
- Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive;
- Facilitates illegal activity;
- Depicts sexually explicit images;
- Promotes unlawful violence;
- Causes damage or injury to any person or property.
- The user reserves the right, without liability to the client, to withdraw the client's access to any material in violation of the provisions of this clause.
The user may utilize the client's name and brand logo in digital and print advertising materials, including but not limited to its owned websites, newsletters, and brochures. If the client notifies the preference, the user will agree to request prior permission.
These general terms and conditions (V23.02) apply to contracts concluded after February 16, 2023. Older versions:
- Version 22.08 - August 24, 2022 to February 16, 2022
- Version 22.06 - June 22, 2022 to August 24, 2022
- Before June '22
Marvia BV. Johan Huizingalaan 400 JS Amsterdam The Netherlands
Marvia Corp. 228 E 45TH ST RM 9E New York, NY 10017, United States
hereinafter referred to as "Marvia".
Article 1 Definitions
- In this Agreement, the following terms have the following meanings unless expressly stated otherwise.
User: Marvia of the general requirements.
Client: the person or entity that subscribes to or purchases products or services from Marvia of any kind (“Services”) or receives an offer or quotation for Services.
Article 2 Scope
- This Agreement applies to each offer, quotation, or agreement between Marvia and a Client to which Marvia has declared these conditions applicable, insofar as these conditions have not deviated explicitly and in writing by the parties.
- This Agreement also applies to all written and executed agreements with Marvia, for the implementation of which third parties must be involved.
- Any deviations from the terms and conditions herein are only valid if expressly stated agreed in writing between Marvia and Client.
- The applicability of any purchase other terms or conditions of the Client not executed in writing between the parties hereto are expressly rejected.
Article 3 Offers and quotations
- Marvia shall deliver to Client an offer or quotation to perform Services in one or more Statements of Work (or “SOW”), each governed by the Agreement.
- The offers made by Marvia are without obligation unless the offer contains a term for acceptance. Offers are valid for 30 days unless otherwise indicated. Marvia is only bound by the offer if the acceptance thereof by Client is confirmed in writing within 30 days unless stated otherwise. Unless Marvia agrees otherwise in writing, Client’s acceptance must match the offer or quotation as delivered by Marvia to be effective.
- The prices listed in offers and quotations are exclusive of sales or use taxes, VAT, and other levies of government, as well as any costs to be incurred under the Agreement, including shipping and handling costs, unless otherwise indicated.
- A compound quotation does not oblige Marvia to perform part of the assignment at a corresponding part of the stated price.
- Offers or quotations only apply to the stated scope of work, and shall not be interpreted to apply to future assignments unless agreed in writing by the parties.
- During the term of an applicable Statement of Work, the Client may from time to time, purchase from Marvia additional exports for additional costs and fees as stated in the applicable SOW.
- Marvia will provide Client with the templating and customer development services as agreed upon in the applicable SOW. The Client will pay for any additional templating or customer development services in excess of the agreed scope of work at the rates set forth in the applicable SOW.
- Marvia will use commercially reasonable efforts to provide the support services in accordance with Marvia’s support services policy. Support services shall be available to Client during the normal business hours up to a maximum of the included number of support services hours specified in the applicable SOW. The Client may purchase additional support services at the current rates.
Article 4 Performance of the Agreement
- Marvia will perform the Agreement according to a reasonable and customary standard of workmanship for its industry.
- Marvia may delegate any or all of its rights and obligations herein to third party sub-contractors and vendors.
- Client shall ensures that Marvia promptly and timely receives any and all information and materials necessary, as indicated by Marvia, to perform the Agreement. If Client does not so provide necessary information to Marvia, Marvia reserves the right to suspend the performance of the Agreement or charge Client additional fees for the resulting delay in performance at the rate stated in the applicable SOW. Client is solely responsible for the accuracy, correctness and completeness of all such information, and Marvia is not and shall not be responsible nor liable in any manner for any outcome arising from incorrect or incomplete information provided by Client to Marvia.
- If Client and Marvia agree that Marvia (or its third-party vendors) will perform any portion of the Agreement at Client’s premises, Client shall provide Marvia with access to and reasonable accommodation at the Client’s premises.
Article 5 Term; Amendments
- This Agreement commences on the date accepted by the Client and continues until terminated by either party as permitted herein.
- Each Statement of Work follows the term set forth in such Statement of Work, unless no term is stated therein, in which case the term of such Statement of Work follows the term of this Agreement. Performance milestones, if any, are as stated in the applicable Statement of Work.
- This Agreement may not be modified or amended, except in a writing signed by authorized representatives of both parties hereto.
- If the Agreement is so modified or amended, the parties agree that the time of completion of the performance or the costs and fees may also be affected as determined by Marvia. Marvia shall promptly notify the Client in writing of discovery of any such changes to timing and/or cost and fees.
- If the applicable Statement of Work was agreed to on a fixed fee basis, Marvia will indicate any change to such fixed fee as the result of the Agreement modification or amendment.
Article 6 License Grant
- Marvia owns all rights, title, and interest, including all related intellectual property rights, in and to the Services, which includes without limitation (i) all of Marvia’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) (ii) reports, advice, agreements, designs, sketches, drawings, software; and (iii) any and all improvements, maintenance, repairs, modifications or changes to the Services, whether or not developed or implemented in response to a Client request or to meet a specific need of Client ("Customizations"). No rights are granted to Client hereunder other than as expressly set forth herein or as otherwise expressly detailed in a specific Statement of Work.
- Marvia hereby grants Client a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted by this Agreement) license to access and use the Services (including any Customizations thereto) for the purposes specified in the applicable Statement of Work (“License”). Client’s rights under this section are non-transferable and non-sublicensable without Marvia’s prior written consent. No rights are granted to Client other than as expressly set forth herein. Client shall promptly notify Marvia upon discovery of unauthorized access, use or disclosure of the Services or any component thereof by a third party.
- Subject to this Agreement, Client hereby grants to Marvia: (i) a worldwide, non-exclusive, royalty-free license during the term of this Agreement to use, reproduce, store, archive, and index Client Data for the purpose of Marvia providing the Services to Client, developing Customizations, and for Marvia’s internal business purposes. Subject only to the limited license expressly granted in this paragraph, Marvia acquires no right, title, or interest from Client in or to Client Data, including any intellectual property rights therein.
- In the event that Client requests that Marvia develop and deliver custom content or deliverables as part of the Services pursuant to a SOW (“Custom Content”), and Marvia agrees to such request, the parties agree that any such Custom Content shall be considered “work made for hire” as defined in 17 U.S.C. Section 101 or was otherwise intended by the parties hereto to be solely and exclusively owned by Client upon payment in full by Client to Marvia for the agreed-to fees for such Custom Content pursuant to the applicable SOW. In the event that any Custom Content does not qualify as a work made for hire, or Marvia has otherwise acquired rights in such Custom Content, Marvia hereby irrevocably assigns and agrees to assign, without additional consideration, all right, title, and interest in and to all such Custom Content to Client. Title to Custom Content, and all related risks related thereto, shall pass to Client at the time of delivery.
- The License to use the Services set forth in paragraph 2 of this article does not include the right to: (i) sell, provide access to, resell, distribute or sublicense the Services to a third party except as expressly authorized in this Agreement or an SOW; (ii) use the Services to provide any product or service to a third party in any manner not anticipated by this Agreement; (iii) use the Services to develop a similar or competing product or service; (iv) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only with prior notice to Marvia); (v) modify or create derivative works of the Services in violation of state and federal intellectual property laws; (vi) copy any element of the Services; or (vii) remove, obscure or modify in any way any proprietary or other notices or attributions in the Services.
Article 7 Client License
- Marvia provides the Services as a multiple seat license for Client use (“Client License”) through which Client may authorize individual users to access, download, install, or use the Services (each an “Authorized User”). Client may use the Services specified in the applicable SOW to allow download, installation, access, and use of such Services on the number of devices and for the term set forth in the applicable SOW.
- Client may not permit a greater number Authorized Users to install or use the Services than the number of seats or above the access limit specified in the applicable Statement of Work. Shared and simultaneous use of the same seat by multiple Authorized Users is not permitted. Multiple individual users using a shared single email address will be treated as multiple authorized users.
- The Client may, at its option, purchase additional seats or increase Client’s Service access limits to accommodate additional authorized users at the price stated in the applicable SOW. Marvia shall invoice Client for additional fees and costs for additional seats or access limit increase and such amount is due and payable as stated on the invoice. If such additional fees and costs are incurred by Client part way through the initial term or any renewal period (as applicable), Marvia will carry out a true- up exercise and invoice the customer accordingly.
Article 8 Fees
- Client agrees to pay the costs and fees for the Services as set forth in the applicable Statement of Work or as otherwise agreed by the parties in writing.
- Marvia provides some Services on a fixed fee basis, while other fees for other Services are calculated on the basis of hours actually spent performing the Services according to Marvia’s hourly rates. The fee(s) for specific Services are set forth in the applicable Statement of Work or as otherwise agreed by the parties in writing.
- Fees and any cost estimates are exclusive of sales or use taxes, VAT, or other levies of government.
- Pricing, fees (fixed or hourly), and costs for Statements of Work performed for a period exceeding three months are subject to periodic change at Marvia’s sole discretion.
- Marvia reserves the right to adjust fees if: (i) Marvia experiences an increase in prices or costs (e.g., rates or wage increases) in the period between the date of offer or quotation and the date of delivery; (ii) Client requests a change to the scope of work changes from what is stated in the applicable SOW; or (iii) the scope of work was inaccurately estimated by any party other than Marvia. In any such case, Marvia will inform the Client of the fee adjustment amount and date to take effect.
Article 9 Payment
- Payments are due within 30 days of the invoice date, along with any sales and use taxes, VAT or other government levies. Fees are stated and payable in United States Dollars unless otherwise stated by Marvia.
- If the Client fails to pay an invoice by the due date, the Client is in default by operation of law. If any payment is not received within 30 days after the due date, Marvia may charge Client a late fee of $50 and Marvia may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. .
- If Client’s unpaid fees are referred to an attorney or collections agency Client shall pay all reasonable attorney’s fees or collections agency fees. Returning Customers must pay any unpaid balance, including any late fees, before receiving Services.
- In case of liquidation, bankruptcy, attachment, or suspension of payment of the Client, the claims of Marvia on the Client immediately due and payable.
Article 10 Deliverables; Objections
- Marvia shall deliver the Services as set forth in the applicable SOW. Upon delivery of the Services in whole or in part, Client shall promptly review and evaluate the delivered Services to determine whether it meets the applicable requirements in the SOW (the “Deliverable Requirements”).
- If Client believes that the delivered Services do not comply with the Deliverable Requirements, Client shall promptly, in no case more than 14 days following delivery, notify Marvia in writing of Client’s discovery an objection to the delivered Services (an “Objection Notice”). The Objection Notice must be as detailed as possible stating the reasons for the objection so that Marvia may respond adequately.
- If Marvia determines, in its sole discretion, that the objection is well-founded, Marvia will attempt to modify the delivered Services so as to comply with the applicable Deliverable Requirements and continue to perform this Agreement and the applicable Statement of Work.
- If it is no longer possible or useful for Marvia to perform the agreed scope of work, Marvia will only be liable within the limits of Article 13.
Article 11 Termination
- Either party may terminate this Agreement or a specific Statement of Work pursuant to the terms and conditions herein by notifying the other party in writing in writing of such termination.
- If Client terminates the Agreement prior to the conclusion of any Statement of Work, Client shall pay Marvia an early termination fee in an amount equal to all costs incurred by Marvia (e.g., wages, materials, fees, or other costs) in the performance of such Statement of Work up to the date of termination that are not yet paid by Client at the time of termination. Additionally, the Client shall be obliged to pay all invoices for the work performed by Marvia up to and including the date of termination. Any Custom Content completed as of the date of termination shall convey to Client upon receipt of payment by Marvia as required by this paragraph.
- If Marvia terminates the Agreement without cause prior to the conclusion of any Statement of Work, Marvia shall use commercially reasonable efforts to ensure that work remaining to be performed is transferred to third parties for continuation unless facts or circumstances underlying the termination make such assistance to Client impractical. If the transfer of the work involves additional costs for Marvia, these will be charged to the Client.
- Marvia reserves the right to immediately terminate this Agreement for cause or refuse to provide the Services to Client if: (i) Client breaches any of this Agreement; (ii) Client fails to pay any invoice on time; or(iii) Marvia determines, in its sole discretion, that the Services are not appropriate for Client’s business or purpose. The requirements of paragraph 2 of this article shall not apply to termination by Marvia pursuant to this paragraph.
- On termination, Client’s License hereunder shall expire and all fees and other amounts incurred hereunder are immediately due and payable to Marvia. Articles 6(1), 8, 12 through 20 and 22 shall survive termination.
- If Marvia makes goods available to the Client as part of Marvia’s performance of this Agreement, Client shall maintain such goods in their original condition and shall return such goods to Marvia within 14 days of the date of termination of this Agreement. Client shall pay Marvia the replacement cost of any goods not so returned immediately upon written demand by Marvia.
- Marvia reserves the right to terminate the Agreement immediately upon the occurrence of any event which makes it impossible for Marvia to fulfill the provisions of this Agreement.
Article 12 Disclaimer of Warranties
CLIENT USES THE SERVICES AT CLIENT’S OWN RISK. MARVIA MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY OR COMPLETENESS OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MARVIA DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF CLIENT’S REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT WITHIN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY MARVIA SHALL CREATE A WARRANTY WITHOUT A WRITING SIGNED BY MARVIA REFLECTING THE CREATION OF SUCH WARRANTY.
Article 13 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARVIA BE LIABLE TO CLIENT OR ANY THIRD PARTY UNDER ANY THEORY OF LIABILITY - WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), AGENCY, WARRANTY, STATUTE, OR OTHERWISE - FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ANY LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, OR ANY OTHER LOSSES OR DAMAGES OF ANY KIND, HOWEVER ARISING, EVEN IF MARVIA KNEW OR SHOULD HAVE KNOWN THAT THERE WAS A POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT SHALL MARVIA BE LIABLE TO CLIENT FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE OF THE FEES PAID BY CLIENT TO MARVIA FOR SERVICES DURING THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR, IF NO FEES WERE PAID DURING SUCH THREE-MONTH PERIOD, ONE THOUSAND US DOLLARS ($1000), IN EACH CASE, WHETHER OR NOT MARVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 14 Indemnities
CLIENT AGREES TO DEFEND, INDEMNIFY, AND HOLD MARVIA, MARVIA’S SUBSIDIARIES AND MARVIA’S AFFILIATES, AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS, AND EMPLOYEES, HARMLESS FROM AND AGAINST ANY DIRECT OR THIRD- PARTY CLAIMS, LOSSES, LIABILITIES, COSTS, EXPENSES, DAMAGES, OR DEMANDS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES DUE TO, RELATING TO, OR ARISING OUT OF (I) CLIENT’S ACCESS TO OR USE OF THE SERVICES IN VIOLATION OF MARVIA’S TERMS; (II) MARVIA’S PROVISION OF THE SERVICES; (III) CLIENT’S USER GENERATED MATERIAL; (IV) CLIENT’S BREACH OR ALLEGED BREACH OF ANY REPRESENTATIONS OR WARRANTIES MADE BY CLIENT HEREUNDER OR CLIENT’S VIOLATION OF ANY OTHER PROVISION OF THESE TERMS; OR (V) CLIENT’S VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, MARVIA MAY SELECT ITS OWN LEGAL COUNSEL TO REPRESENT ITS INTERESTS WHEN DEFENDING AGAINST DIRECT OR THIRD-PARTY CLAIMS OR DEMANDS, AND CLIENT MUST (A) REIMBURSE MARVIA FOR ITS COSTS AND ATTORNEYS’ FEES IMMEDIATELY UPON REQUEST AS THEY ARE INCURRED, AND (B) REMAIN RESPONSIBLE TO MARVIA FOR ANY LOSS, LIABILITY, COST, EXPENSE, CLAIM, DAMAGES, OR DEMAND IDENTIFIED IN THIS SECTION.
Article 15 Force majeure
In no event shall Marvia be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that Marvia shall use reasonable efforts which are consistent with accepted practices in the software industry to resume performance as soon as practicable under the circumstances.
Article 16 Confidentiality
- Both parties are required to maintain the confidentiality of all confidential information that they provide under have obtained their agreement from each other or from another source. Information is considered confidential if this has been communicated by the other party or if this arises from the nature of the information.
- If, on the basis of a legal provision or a court decision, Marvia is obliged Confidential information to third parties designated by law or competent court and Marvia cannot invoke a statutory or competent authority in this regard judge recognized or permitted right of refusal, user is not obliged to compensation or compensation and the other party is not entitled to dissolve the agreement on the ground of any damage caused by this.
Article 17 Non-Solicitation
During the period commencing on the Effective Date and ending one year following termination of the Agreement, the Client shall not, without Marvia’s prior written consent, directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of Marvia; or (ii) hire, on behalf of Client or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with Marvia. During the period commencing on the date hereof through and ending one year following the Termination Date, the Company will not, whether for its own account or for the account of any other person, intentionally interfere with the relationship of Marvia with, or endeavor to entice away from the Marvia, any person who during the term of the Agreement is, or during the preceding one-year period, was a customer, investor, contractor, or affiliate of Marvia.
Article 18 Dispute Resolution
- Client agrees that any dispute, controversy or claim between Client and Marvia arising out of or relating to: (i) this Agreement, or the breach thereof; (ii) Marvia’s provision of the Services; (iii) Client’s access to or use of the Services; or (iv) any alleged violation of any federal, state, or local law, statute, or ordinance (each such dispute, controversy or claim, a “Dispute”) will be governed by the arbitration procedure outlined below.
- Marvia wants to address Client concerns without the necessity of a formal legal case. Before filing a claim against Marvia, Client shall attempt to resolve the Dispute informally by contacting Marvia by email. Marvia will contact Client by email as part of a good faith effort to resolve the Dispute informally. If a Dispute is not resolved within 30 days after submission, Client or Marvia may bring a formal proceeding.
- Client and Marvia each agree to resolve any Disputes through final and binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in New York, New York, United States, or any other location Marvia agree to. The AAA rules will govern payment of all arbitration fees. Notwithstanding the foregoing, either Client or Marvia may assert claims, if they qualify, in small claims court in New York, New York or any United States county where Client is physically located. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of Marvia’s Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
- Client may only resolve Disputes with Marvia on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under this Agreement.
- Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Client’s use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim, or cause of action will be barred forever.
Article 19 Applicable law
Except as otherwise required by applicable law, this Agreement and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of New York, the Federal Arbitration Act, and applicable U.S. federal law, as applicable, in each case without regard to its conflict of laws principles. Except as otherwise required by applicable law, if the agreement to arbitrate is found not to apply to Client or its claim, the parties agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts in New York, New York, and Client and Marvia each agree to waive the right to a jury trial.
Article 20 Restrictions
- The Client shall not violate or attempt to violate Marvia’s security features, such as by: (i) accessing data not intended for Client or logging onto a server or an account which Client is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures unless Marvia expressly authorizes it in writing; (iii) attempting to interfere with service to any user, host or network, such as by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing” or “crashing”; or (iv) sending unsolicited email, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.
- Client hereby agrees not to use any device, software, or routine to interfere or try to interfere with the proper working of the Services or any activity being conducted via the Services.
- Client agrees not to use or try to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Services other than the search engine and search agents that Marvia makes available via the Services and other than the generally available third-party web browsers.
- If Client violates Marvia system or network security, Client may face civil or criminal liability. Marvia will investigate occurrences that may involve such violations. Marvia may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
Article 21 Promotion
The supplier may utilize the customer's name and brand logo in digital and print advertising materials, including but not limited to its owned websites, newsletters and brochures. If the customer notifies the preference the supplier will agree to request prior permission.
Article 22 Miscellaneous
- Client is solely responsible for ensuring that Client’s use of the Services complies with laws and regulations applicable to Client wherever Client is located and/or operates its business. Access to Marvia’s Services may not be legal by certain persons or in certain jurisdictions. The Services are void where prohibited.
- The parties’ relationship, as established by this Agreement, is solely that of independent contractors. These Terms do not create any partnership, joint venture, or similar business relationship between the parties. Neither party is a legal representative of the other party, and neither party can direct and control the day-to-day activities of the other, or assume or create any obligation, representation, warranty, or guarantee, express or implied, on behalf of the other party for any purpose whatsoever.
- Client may not assign, delegate, or transfer this Agreement, by operation of law or otherwise, without Marvia’s prior written consent, but Marvia may freely assign or transfer this Agreement without restriction. Any attempt by Client to assign or transfer this Agreement, without such consent, will be null. Notwithstanding the foregoing, either Party may, without consent, assign this Agreement to any successor to all or substantially all its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their successors, and permitted assigns.
- Except as otherwise stated herein, this Agreement and the agreements incorporated by reference herein constitute the entire and exclusive understanding and agreement between Marvia and y Client ou regarding the Services and supersede and replace any and all prior oral or written understandings or agreements between Marvia and Client regarding the Services.
- Marvia reserves the right (but is not required) to remove or disable Client’s access to Marvia’s Services, disable any username, password, or other identifier, whether chosen by y Client ou or provided by us, or remove any Content, or Client’s User Content at any time and without notice, and at Marvia’s sole discretion, if Marvia determine that Client’s use of Marvia’s Services is in any way objectionable or in violation of this Agreement. Certain violations of this Agreement, as determined by Marvia, may result in immediate termination of Client’s access to the Services without prior notice to Client. Marvia reserves the right to investigate violations of this Agreement and any conduct that affects Marvia’s Services, and in response may take any action Marvia may deem appropriate.
- Marvia’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. Except as expressly set forth herein, the exercise by either Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
- Any notices or other communications provided by Marvia under this Agreement, including those regarding modifications to this Agreement, will be given via email to Client’s email address on Client’s account or by posting to the Services. Notices from Client to Marvia will be given via email or to the mailing address posted on the Services. For notices made by email, the date of receipt on the message will be deemed the date on which such notice is transmitted.