Terms of Service
Last updated on April 29, 2020
The Customer acknowledges that the Terms of Service of this Agreement have been made available to the Customer and have been reviewed by the Customer prior to the Customer requesting the performance of services by Marvel & Snap. The Customer further acknowledges that submission of the Order constitutes acceptance of this Agreement and will bind the Customer to all of the Terms of Service hereof.
Marvel & Snap reserves the right to update and change the Terms of Service by posting updates and changes to the Marvel & Snap website. If Marvel & Snap makes any material changes, an e-mail will be sent to the Customer at the e-mail address listed on the Order. Any changes to the Terms of Service will be effective immediately for new Customers and will be effective thirty (30) days after posting such changes to the Marvel & Snap website for existing Customers, provided that any material changes shall be effective for existing Customers upon the earlier of thirty (30) days after posting such changes on the Marvel & Snap website or thirty (30) days after dispatch of an e-mail notice of such changes to such Customers. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you and if you do not accept such amendments, you must cease using the Services.
In consideration of the mutual promises and covenants made herein, the parties agree as follows:
1. Fees and Services
Subject to the terms and conditions of this Agreement, Marvel & Snap will provide the Services (the “Services“) specified in the Order (the “Order”) attached as Exhibit A hereto and incorporated into this Agreement by reference. All our Managed Web Services plans are available on monthly prepaid, non-refundable contracts. All contracts will automatically renew for the same term using the payment method on file unless the client changes or discontinues the service.
2. Ownership; Rights; Proprietary Information; Publicity
The Customer shall own all right, title and interest for work completed during each Billing Period (the “Billing Period”) after invoice for that Billing Period is paid in full to Marvel & Snap. The Billing Period starts from the first day of the month and ends on the last day of the month for the duration of the working Agreement.
3. Service Levels
The following sections provide relevant details on service availability, support of service requests and related components.
3.1. Service Availability
Coverage parameters specific to the Services specified in the Order are as follows:
- Telephone support: 9:00 A.M. to 5:00 P.M. EST Monday – Friday
- Calls received out of office hours will be forwarded to a mobile phone and best efforts will be made to answer / action the call, however there will be a backup answer phone service
- Email support: Monitored 9:00 A.M. to 5:00 P.M. EST Monday – Friday
- Emails received outside of office hours will be collected, however no action can be guaranteed until the following business day
- Video conference meetings guaranteed within 72 hours during the business week
3.2. Service Requests
In support of the Services outlined in the Order, Marvel & Snap will respond to service related requests submitted by the Customer within the following time frames (during regular business hours):
- Within 6 hours for support requests under our Startup plan.
- Within 4 hours for support requests under our Business Small plan.
- Within 3 hours for support requests under our Business Medium plan.
- Within 2 hours for support requests under our Business Large and Extra Large plans.
- Within 1 hour for support requests under our Enterprise plan.
- Support assistance will be provided in-line with the above timescales dependent on the complexity of the support request.
Subject to the qualifications and limitations contained herein, Marvel & Snap warrants that the Services will, in all material respects, conform to the description of Services provided in the Order. Except as set expressly forth in this Agreement, Marvel & Snap and its contractors hereby disclaim all warranties of any kind, expressed or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement. Neither Marvel & Snap nor its contractors makes any warranty that the Services or the Customer’s website(s) will be error free, free of viruses or other harmful components, or that access thereto will be continuous or uninterrupted. Marvel & Snap does not represent or warrant but will make commercially reasonable efforts to ensure that the services are uninterrupted or error-free, that defects will be corrected, or that any servers used for Marvel & Snap’s Hosting Services will be free of viruses or other harmful components. You understand that the use of the Services is at your own discretion and risk.
The terms of this Agreement shall commence on the Service Start Date listed in the Order and shall continue until the Service has been terminated, as expressly set forth herein. Marvel & Snap may terminate the Service at any time: (i) if the Customer materially breaches any provision of this Agreement; or (ii) if the Customer ceases to do business, or otherwise terminate their business operations without a successor; or (iii) if the Customer becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding; or (iv) if the Customer is in default of payment; or (v) if Marvel & Snap is required to do so by Law (for example, where the provision of the Services to the Customer is, or becomes, unlawful). Notwithstanding the preceding, either party may terminate this Agreement at will upon thirty (30) days written notice to the other party.
6. Limitation of Liability
Neither party shall be liable for any special, punitive, indirect, or consequential losses or damages, including loss of profit, even if advised of the possibility thereof, for any claim arising under this Agreement, regardless of the cause of action. EXCEPT FOR LIABILITY OR BREACH RELATED TO BODILY INJURY, REAL OR TANGIBLE PROPERTY DAMAGE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE CUSTOMER TO MARVEL & SNAP FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO NOTICE OF THE CLAIM.
The Customer agrees to indemnify and save harmless Marvel & Snap and its directors, officers, and employees, from third party liabilities, costs and expenses, including reasonable legal costs, to the extent directly arising out of the Customer’s material breach of this Agreement by the Customer or its users/clients. Marvel & Snap agrees to indemnify and save harmless the Customer and its directors, officers, and employees, from third party liabilities, costs and expenses, including reasonable legal costs, to the extent directly attributable to Marvel & Snap material breach of this Agreement. If a party seeks indemnification hereunder, that party will promptly notify the other party, provide the other party reasonable, non-monetary assistance, and sole control over any litigation or settlement proceedings.
8. Relationship of Parties
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
9. Confidentiality of Client Information
Marvel & Snap and Customer acknowledge that during the course of normal account administration, information which is confidential to Customer may be accessed by Marvel & Snap. Marvel & Snap agrees that such Confidential Information is the exclusive property of Customer and agrees to treat confidentially all such information and, unless legally compelled, shall not disclose any such information to any third party during the term of this Agreement. Except where demanded by law, upon termination of this Agreement Marvel & Snap will destroy all records, software, data and other information and media that it may have in its possession. This does not include Customer records, such as contact and billing information, required for administrative purposes by Marvel & Snap.
(i) This Agreement, including any and all documents incorporated herein by reference, constitutes the entire Agreement between the Customer and Marvel & Snap relating to provision of Services. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Marvel & Snap and the Customer (ii) Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement. (iii) Either party’s failure to insist on or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision, term, condition or right of that party contained in this Agreement. (iv) If any of the terms, conditions or provisions of this Agreement are determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, the same shall be severable from the rest of this Agreement and such determination shall not affect the remaining provisions contained in this Agreement. (v) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts of such province shall have exclusive jurisdiction to adjudicate any claim or dispute relating to this Agreement. (vi) Neither this Agreement nor any rights hereunder may be assigned by either party, without the prior written consent of the other party, such consent not to be unreasonably withheld. (vii) Customer may not make any re-sale of any of the Services provided hereunder without the express prior written consent of Marvel & Snap. (viii) Marvel & Snap shall not be liable for any delay or failure in performance of Services due to events beyond Marvel & Snap’s direct control, including war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, acts of God, government intervention or action, supplier or vendor failure (“Force Majeure Events”).