Terms of Service
ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON MERCHANT UPON EXECUTION OF THE SUBSCRIPTION SERVICES AGREEMENT. MERCHANT SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
Terms of Service
ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON MERCHANT UPON EXECUTION OF THE SUBSCRIPTION SERVICES AGREEMENT. MERCHANT SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
Section Headings and Numbers.
Certain Sections may have been renamed and/or renumbered in this document for convenience only and such renaming and/or renumbering shall not affect the validity, construction or interpretation of the Agreement. References in the Subscription Services Agreement to any Section names or numbers under this document shall be deemed to be a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent possible under applicable law.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists.
“Confidential Information” means, except as set forth in the following paragraph: (a) Merchant Data; (b) the terms of this Agreement and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. Notwithstanding the foregoing, the following shall not be Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by Multiable or on behalf of Multiable regarding Multiable’s products and services (for purposes of providing or improving Multiable products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personal information and other Merchant-specific information.
“Consumers” means the people who have visited or made a purchase from a Merchant’s KOPAPRO-powered store.
“Merchant” means the person signing up for the Service by opening an Account, who will be the contracting party for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding Account we may provide to the Merchant in connection with the Service. If you are signing up for the Services on behalf of your employer, your employer shall be the Merchant. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Terms of Service.
“Merchant Data” means all electronic data or information submitted to and stored in the Service by Users.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“SaaS Contract” means an Multiable quotation, renewal notification or order form in the name of and executed by Merchant or its Affiliate and accepted by Multiable which specifies the Service, and any Support Services and/or Professional Services to be provided by Multiable subject to the terms of this Agreement.
“Help Documentation” means the online English language help center documentation describing the Service features, including User Guides which may be updated from time to time.
“Professional Services” means the general consulting, implementation and/or training services to be provided to Merchant pursuant to (i) a Professional Services Agreement, and (ii) a Statement of Work (as defined in such professional services agreement).
“Service” means, collectively, the KOPAPRO (and any optionally procured modules) (the “M18 Service”) as described in the applicable User Guides that is procured by Merchant from Multiable in the SaaS Contract and any subsequent SaaS Contract from time to time, including associated offline components, but excluding Third Party Applications, Support Services and Professional Services.
“Support Services” means the supplemental, fee-based technical support services to be provided to Merchant pursuant to the terms for a (i) Support Services Agreement, and (ii) scopes of services (as defined in such support services agreement).
“System Availability” means the average percentage of total time during which the production version of the Service is available to Merchant during a calendar month, excluding (i) any maintenance windows (including any maintenance windows defined in a supplement to this Agreement); (ii) delays due to conditions beyond the reasonable control of Multiable; (iii) delays caused by systems outside of the Service, including, but not limited to, Merchant’s network, equipment and systems; (iv) micro outages (meaning an inaccessibility that lasts less than fifteen (15) minutes, provided that there are no more than three (3) micro outages within a calendar month); and (v) inaccessibility due to Merchant’s requests or where Merchant approved the same in advance; (vi) delays caused by usage of third-party products and services.
“Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Multiable, as further described in Section 2.4 (“Third Party Applications”) that interoperate with the Service, including but not limited to those listed on www.multiable.com and www.KopaPro.com .
“Users” means individuals who are authorized by Merchant or its Affiliate to use the Service pursuant to this Agreement or as otherwise defined, restricted or limited in an SaaS Contract or amendment to this Agreement, for whom subscriptions to a Service have been procured. Users exclude Consumers. Users include but are not limited to Merchant’s and Merchant’s Affiliates’ employees, consultants, contractors and agents.
“User Guides” mean the online English language user guides for the Service, accessible via login at http://www.KopaPro.com , as updated from time to time. Merchant acknowledges that it has had the opportunity to review the User Guides within a period of complimentary Service made available by Multiable.
“URL Terms” means the terms with which Merchant must comply, which are located at a URL, referenced in this Agreement and are hereby incorporated by reference.
- Terms of Service
Merchant acknowledges and agrees to the following terms of service, which together with the terms of the Subscription Services Agreement entered into between Merchant and Multiable, shall govern Merchant’s access and use of the Service (collectively, the “Agreement”). Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Agreement.
2.1. Accuracy of Merchant’s Contact Information
Merchant shall provide accurate, current and complete information on Merchant’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2.2. Users: Passwords, Access, And Notification
Merchant shall authorize access to and assign unique passwords and user names to the number of Users procured by Merchant on the SaaS Contract. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be permanently reassigned to another User as needed. Merchant will be responsible for the confidentiality and use of User’s passwords and user names. Merchant will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Merchant Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Merchant’s account. Multiable will act as though any Electronic Communications it receives under Merchant’s passwords, user name, and/or account number will have been sent by Merchant. Merchant shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Multiable of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
2.3. General Restrictions
Merchant is responsible for all activities conducted under User logins and for Users’ compliance with this Agreement. Merchant must not use, and must ensure that Affiliates do not use, the Service to provide a service bureau or outsourced service, and may not rent, resell, sublicense, or permit the concurrent use of a single User login, or timesharing of the Service. Merchant shall not and shall not permit any Affiliate, User or other third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed in the Help Documentation; (b) access or use the Service to circumvent or exceed Service account limitations or requirements; (c) use the Service for the purpose of building a similar or competitive product or service, (d) obtain unauthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (e) use the Service in a manner that is in violation of any third party rights of privacy or intellectual property rights; (f) issue or participate in any press release or other public statement related to this Agreement or the Service without prior written consent of Multiable; (g) publish, post, upload or otherwise transmit Merchant Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (h) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Merchant shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement, including without limitation those related to privacy, electronic communications and anti-spam legislation.
Merchant is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall not store credit card and social security data in the Service except in the designated encrypted fields for such data.
Merchant shall comply with the export laws and regulations of the United Nations and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Merchant represents that it is not named on any United Nations list of persons or entities prohibited from receiving exports, (ii) Merchant shall not permit Users to access or use the Service in violation of any United Nations export embargo, prohibition or restriction, and (iii) Merchant shall comply with all applicable laws regarding the transmission of technical data exported from Singapore and the country in which its Users are located. Merchant will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Merchant may not, and may not cause or permit others to: (a) use the Service to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the Service; or (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Service (the “Acceptable Use Policy”). In addition to other rights that Multiable has in this Agreement and Merchant SaaS Contract, Multiable has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Merchant agrees not to access the Service by any means other than through the interfaces that are provided by Multiable. Merchant shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Merchant will not in any way express or imply that any opinions contained in Merchant’s Electronic Communications are endorsed by Multiable. Merchant shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User shall be deemed an action or breach by Merchant.
Merchant agrees that: (i) Multiable is not acting on Merchant’s behalf as a Business Associate or subcontractor; (ii) the Service may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Service will not be used in any manner that would require Multiable or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.
2.4. Third Party Applications
Multiable or third party providers may offer Third Party Applications. Except as expressly set forth in the SaaS Contract, Multiable does not warrant any such Third Party Applications, regardless of whether or not such Third Party Applications are provided by a third party that is a member of a Multiable partner program or otherwise designated by Multiable as “Built For M18,” “certified,” “approved” or “recommended.” Any procurement by Merchant of such Third Party Applications or services is solely between Merchant and the applicable third party provider. Merchant may not use Third Party Applications to enter and/or submit transactions to be processed and/or stored in the Service, unless Merchant has procured the applicable subscription to the Service for such use and access.
Multiable is not responsible for any aspect of such Third Party Applications that Merchant may procure or connect to through the Service, or any interoperation, descriptions, promises or other information related to the foregoing.
No procurement of such Third Party Applications is required to use the Service.
If Merchant was referred to Multiable by a member of one of Multiable’s partner programs, Merchant hereby authorizes Multiable to provide such member or its successor entity with access to Multiable’s business information related to the procurement and use of the Service pursuant to this Agreement, including but not limited to User names and email addresses, support cases and billing/payment information.
2.5. Transmission of Data
Merchant understands that the technical processing and transmission of Merchant’s Electronic Communications is fundamentally necessary to use of the Service. Merchant is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service. Merchant expressly consents to Multiable’s interception and storage of Electronic Communications and/or Merchant Data as needed to provide the services hereunder, and Merchant acknowledges and understands that Merchant’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Multiable. Merchant further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting Multiable’s applicable obligations under Sections 2.8 (Security) or 2.9 (Confidentiality), Multiable is not responsible for any Electronic Communications and/or Merchant Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Multiable, including, but not limited to, the Internet and Merchant’s local network.
2.6. Service Level
Multiable warrants at least ninety-nine percent (99%) System Availability over any calendar month. Should Multiable fail to achieve ninety-nine percent (99%) System Availability over a calendar month, Merchant shall have the right to receive a credit equal to two percent (2%) of its subscription fees for the Service for that month, for each one percent (1%) (or portion thereof) by which Multiable fails to achieve such level, up to one hundred percent (100%) of the fees for such month. This is Merchant’s sole and exclusive remedy for any breach of this service level warranty. Claims under this service level warranty must be made in good faith and by submitting a support case within ten (10) business days after the end of the relevant period.
Multiable shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Merchant Data.
Multiable shall perform an annual ISO 27001 audit (or similar security standard), under the International Organization for Standardization (ISO) 27001 standard. Additionally, No more than once per year, Merchant may submit one request for a copy of Multiable’s final ISO 27001 certificate. If similar third party audits, standards and/or certifications become available in the future, Multiable may choose to perform such audit and/or certify to such established industry standard selected by Multiable in place of those in the preceding sentences.
Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Merchant. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Additionally, Merchant must input credit card information and social security numbers only in the fields designated for such data in the Service. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
2.9. Ownership of Merchant Data
As between Multiable and Merchant, all title and intellectual property rights in and to the Merchant Data is owned exclusively by Merchant. Merchant acknowledges and agrees that in connection with the provision of the Service, Multiable may store and maintain Merchant Data for a period of time consistent with the Multiable standard business processes. Following expiration or termination of the SaaS Contract or a Merchant account Multiable may deactivate the applicable Merchant account(s) and delete any data therein.
2.10. Multiable Intellectual Property Rights
All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by Multiable) are owned exclusively by Multiable or its licensors. Except as provided in this Agreement, the rights granted to Merchant do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Merchant grants Multiable a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Merchant or any Users related to the operation or functionality of the Service. Any rights in the Service or Multiable’s intellectual property not expressly granted herein by Multiable are reserved by Multiable.
Multiable, M18 marks, logos and product and service names are marks of Multiable (the “Multiable Marks”). Merchant agrees not to display or use the Multiable Marks in any manner without Multiable’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Merchant is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
Privacy policies explain how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that Multiable can use such data in accordance with our privacy policies.
- Warranties, Disclaimers and Exclusive Remedies
3.1. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. Multiable warrants that during the subscription term, Multiable will perform the Service using commercially reasonable care and skill in all material respects as described in the User Guides and that Multiable will not materially decrease the functionality described in the User Guides during the then-current subscription term. If the Service provided to Merchant was not performed as warranted, Merchant must promptly provide Multiable with a written notice that describes the deficiency in the Service (including, as applicable, the service request number notifying Multiable of the deficiency in the Service).
3.2. MULTIABLE DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT MULTIABLE WILL CORRECT ALL SERVICE ERRORS, OR THAT THE SERVICE WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS. MULTIABLE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICE THAT ARISE FROM MERCHANT DATA OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
3.3. FOR ANY BREACH OF THE WARRANTY, MERCHANT’S EXCLUSIVE REMEDY AND MULTIABLE’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICE THAT CAUSED THE BREACH OF WARRANTY, OR, IF MULTIABLE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, MERCHANT MAY END THE DEFICIENT SERVICE AND MULTIABLE WILL REFUND TO MERCHANT THE FEES FOR THE TERMINATED SERVICE THAT MERCHANT PRE-PAID TO MULTIABLE FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
3.4. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE, BUT IN THE EVENT OF A BREACH OF SECTION 2.9 OF THIS AGREEMENT, SUCH MAXIMUM AGGREGATE LIABILITY SHALL BE INCREASED TO TWO (2) TIMES THE TOTAL SUBSCRIPTION FEES PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE.
BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 2.3 OF THESE TERMS OF SERVICE; OR (C) EITHER PARTY’S DEFENSE AND INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 5 (“Indemnification”) BELOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
Subject to the terms and conditions set forth in this Section (“Indemnification”), Multiable shall, at its own expense, defend Merchant from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify Merchant from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Multiable will have no liability for Claims or Losses to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Multiable notifies Merchant to discontinue use because of an infringement claim, (c) modifications to the Service not made by Multiable or made by Multiable based on Merchant specifications or requirements, (d) use of the Service in combination with any non-Multiable software, application or service, or (e) services offered by Merchant or revenue earned by Merchant for such services. If a Claim of infringement as set forth above is brought or threatened, Multiable shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Merchant against such Claim without cost to Merchant; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Merchant a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Merchant under this Section 6.1 state Multiable’s entire liability, and Merchant’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
5.2. Merchant’s Indemnity
Subject to the terms and conditions set forth in this Section 5, Merchant shall, at its own expense, defend Multiable from and against any and all Claims (i) alleging that the Merchant Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or violates applicable law ;and shall indemnify Multiable from and against liability for any Losses to the extent based upon such Claims.
5.3. Indemnification Procedures and Survival
In the event of a potential indemnity obligation under this Section 5, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 5 are expressly conditioned upon the indemnified party’s compliance with this Section 5.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 5 but such obligations shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 5 shall survive termination of this Agreement for one year.
6.1. Suspension for Delinquent Account
Multiable reserves the right to suspend Merchant’s and any Merchant Affiliates’ access to and/or use of the Service and/or Support Services if any payment is due but unpaid but only after Multiable has provided Merchant two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Merchant agrees that Multiable shall not be liable to Merchant or to any Merchant Affiliate or other third party for any suspension pursuant to this Section.
6.2. Suspension for Ongoing Harm
Multiable may with reasonably contemporaneous telephonic notice to Merchant suspend access to the Service if Multiable reasonably concludes that Merchant’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Merchant’s Service is causing immediate, material and ongoing harm to Multiable or others. In the event Multiable suspends access to the Service, Multiable will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Merchant to resolve the issues causing the suspension of Service. Merchant agrees that Multiable shall not be liable to Merchant nor to any third party for any suspension of the Service under such circumstances as described in this Section. Any suspension under this section shall not excuse Merchant from Merchant’s obligation to make payments under this Agreement.
6.3. Termination for Cause, Expiration
Either party may immediately terminate this Agreement and all SaaS Contracts issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be as set forth in Section 6.4. Upon termination or expiration of this Agreement, Merchant shall have no rights to continue use of the Service. If this Agreement is terminated by Merchant for any reason other than a termination expressly permitted by this Agreement, then Multiable shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Multiable’s breach of this Agreement, then Merchant shall be entitled to a refund of the pro rata portion of any subscription fees paid by Merchant to Multiable under this Agreement for the terminated portion of the Term.
Any legal notice required under this Agreement shall be provided to the other party in writing. If Merchant has a legal dispute with Multiable or if Merchant wishes to provide a notice under the Indemnification Section of this Agreement, or if Merchant becomes subject to insolvency or other similar legal proceedings, Merchant will promptly send written notice to: Multiable Pte Ltd, located at 10 Anson Road, #17-17, International Plaza, Singapore, Attention: General Counsel, Legal Department.
- Modifications; Discontinuation of Service
7.1 To the Service
Multiable may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Merchant of any material modifications. Multiable reserves the right to discontinue offering the Service at the conclusion of Merchant’s then current subscription term for such Service. Multiable shall not be liable to Merchant nor to any third party for any modification of the Service as described in this Section.
7.2 To Applicable Terms
If Multiable makes a material change to any applicable URL Terms, then Multiable will notify Merchant by either sending an email to the notification email address or posting a notice to the administrator in Merchant’s account. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant must so notify Multiable via email@example.com within thirty days after receiving notice of the change. If Merchant notifies Multiable as required, then Merchant will remain governed by the URL Terms in effect immediately prior to the change until the end of the then current subscription term for the affected service(s). If the affected service(s) is renewed, it will be renewed under Multiable’s then current URL Terms.
- Service Monitoring and Analyses
8.1 Multiable continuously monitors the Service to facilitate Multiable’s operation of the Service; to help resolve Merchant service requests; to detect and address threats to the functionality, security, integrity, and availability of the Service as well as any content, data, or applications in the Service; and to detect and address illegal acts or violations of the Acceptable Use Policy. Multiable monitoring tools do not collect or store any Merchant Data residing in the Service, except as needed for such purposes. Multiable does not monitor, and does not address issues with, non-Multiable software provided by Merchant or any of Merchant’s Users that is stored in, or run on or through, the Service. Information collected by Multiable monitoring tools (excluding Merchant Data) may also be used to assist in managing Multiable’s product and service portfolio, to help Multiable address deficiencies in its product and service offerings, and for license management purposes.
8.2 Multiable may (i) compile statistical and other information related to the performance, operation and use of the Service, and (ii) use data from the Service in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Multiable may make Service Analyses publicly available; however, Service Analyses will not incorporate Merchant Data, personal information or Confidential Information in a form that could serve to identify Merchant or any individual. Multiable retains all intellectual property rights in Service Analyses.
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
- No Endorsement
You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or your Content.
- Governing Law
This Agreement shall be governed by the laws of Singapore, excluding its conflict of law provisions. Unless contrary to the law where you reside, all disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of Singapore and you expressly consent to the exercise of personal jurisdiction in the courts of Singapore in connection with any such dispute. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
About these Terms
We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.
If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
These terms control the relationship between Multiable and you. They do not create any third party beneficiary rights.
If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of Singapore, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in Singapore, and you and Multiable consent to personal jurisdiction in those courts.
For information about how to contact Multiable, please visit our contact page.