- Customer shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to provide and gain data access, to use Domo and for paying all third-party fees and agreed access charges per the terms of the agreement.
- MARTEC360 does not own and shall not be responsible for any data, information or material that you authorize us to retrieve or submit to Domo in the course of using the service. You, not MARTEC360, shall be solely responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and MARTEC360 shall not be responsible or liable for the correction, destruction, damage, loss, deletion or failure to store any Customer Data.
Account and Password
- Customer will receive credentials to log in to Domo. Customer shall have sole responsibility for all activities relating to such Customer’s account and shall immediately inform MARTEC360 of any unauthorized use of the Customer’s account.
Terms & Fees
- Subscriber agrees to a 12-month term, effective beginning the date of first payment.
- You are expressly agreeing that MARTEC360 is permitted to bill you the applicable fees and any other charges you may incur with MARTEC360 in connection with your use of ERP BI and Domo Services and that the fees will be billed to the credit card you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. Subscription fees are payable in U.S. Dollars and based on Services purchased and not on actual usage. You will provide MARTEC360 with valid and updated credit card information and you authorize MARTEC360 to charge such credit card for all purchased subscriptions and renewals. Refer to table for monthly subscription fee schedule.
- Unless otherwise stated, MARTEC360 fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).
- If Customer is in breach of this Section, MARTEC360 shall be entitled to charge default interest on the outstanding fees in the maximum amount allowable by law and/or suspend or terminate access to Domo at its sole option, with or without notice to Customer. Additional claims for payment default remain reserved.
- In the event, MARTEC360 materially breaches this DOMO/BI Agreement, and such breach remains uncured for a period of thirty (30) days after notice from Customer, Customer shall be entitled to a pro-rata refund for the portion of the then-current term that has been pre-paid and is subject to the material breach and remains uncured.
- The Business Intelligence subscription will automatically renew for additional one year, successive subscription periods unless you terminate your subscription prior to the next renewal period. You acknowledge and agree that MARTEC360 will automatically charge your credit card on record with MARTEC360 for the then-current subscription period upon the commencement of any renewal period. You may terminate your subscription following the full duration of your 12-month subscription, with at least sixty (60) days with written notice prior to the automatic renewal to MARTEC360. Without written notice on file, thirty days (30) prior to renewal DOMO will commit the licenses with MARTEC360 for the next renewal period thereby locking in the subscription.
- Subject to applicable law, the content of all MARTEC360 Business Intelligence services, modules, suites, data processing, data management, data fetching, data modeling, and data transformation, except for the content created by users and third parties if any, including without limitation, software, code, forms, text and other materials, trademarks, service marks or logos contained therein (“Marks”), are owned by or licensed to MARTEC360 and/or Domo. Customer’s use of MARTEC360 services is limited to the rights granted to Customer under this Agreement and reserves all rights not expressly granted herein.
Liability and Warranty
- To the maximum extent permitted by applicable law, either party’s total, aggregate liability arising out of or in connection with this Agreement shall in no event exceed the total amount of payments due by Customer to MARTEC360 during the initial term or the then applicable renewal term of the Agreement.
- To the maximum extent permitted by applicable law, in no event shall either party be liable for any, indirect, incidental, special, consequential or exemplary damages, however caused and under any theory of liability arising out of or in connection with this Agreement. This shall include, but not be limited to, any loss of; profit, goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
- MARTEC360 warrants that it has the legal power and authority to enter into this Agreement. Except as provided herein, MARTEC360 provides Domo “as is” without any warranty or condition of any kind, express or implied. MARTEC360 does not guarantee uninterrupted, secure or error-free operation of Domo. MARTEC360 makes no representation or warranty as to the accuracy, timeliness, quality, completeness, suitability or reliability of any information or data accessed on or through Domo. No information obtained from MARTEC360 or through Domo, whether oral or written, shall create any warranty not expressly stated in this Agreement.
Operating Hours and System Maintenance
- MARTEC360 shall use commercially reasonable efforts to ensure that the Customer receives uninterrupted and continuing service throughout the term of the Agreement. MARTEC360 may need to carry out routine maintenance or urgent maintenance or Domo may become unavailable for reasons not within MARTEC360 control. In such case, MARTEC360 shall use commercially reasonable efforts to inform the Customer of any downtime and restore Domo access as soon as reasonably practicable. MARTEC360 business hours are 9:00 a.m. to 5:00 p.m., Monday through Friday.
- The Agreement will be governed by and interpreted in accordance with the laws of the state of Florida and the county of Hillsborough. To the extent allowed by law, Customer irrevocably agrees all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The language of the arbitral proceedings shall be English (or as determined between the parties). Judgment upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator is authorized to include in the award an allocation to any party of such costs and expenses, including reasonable attorneys’ fees, as the arbitrator shall deem reasonable.
- A party’s waiver of a breach or default by the other party of any provision of the Agreement shall not be construed as a waiver of any succeeding breach or default by the other party, nor shall a party’s failure to exercise or enforce any right or provision of the Agreement be deemed to be a waiver of such right or provision.
- Invalidity of any specific provision of this Agreement shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision, which comes as close as possible to the intent of the invalid provision.
- Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that both parties may assign this Agreement in whole without the other party’s prior consent to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates on condition that such successor in interest agrees in writing to comply with all terms and conditions of this Agreement.
- Both parties acknowledge and agree that this Agreement constitutes the entire agreement between the parties in regards to the subject matter herein. Any other terms and conditions, including, without limitation, terms and conditions on or attached to a purchase order, vendor registration documents, tenders or request for proposals are void and shall be of no force and effect regardless of whether they are delivered to MARTEC360 prior to, concurrently, or after the execution of this Agreement. Performance by MARTEC360 with respect to Domo shall not constitute acceptance of any additional or alternative terms and conditions nor shall a failure to act on said additional terms and conditions constitute acceptance of the provisions contained therein.
- This Agreement may only be amended in writing signed by authorized representative of both parties.
- Customer and MARTEC360 agree that notices may be sent by electronic mail, to the electronic mail address indicated in the Agreement, or then-current electronic mail address provided by a party to the other party and designated as the proper electronic mail address, and agree that notices are deemed received forty-eight (48) hours after transmission. Each party agrees that any electronic communication will satisfy any legal communication requirements, including all such communication required by applicable laws to be in writing.
- MARTEC360 does not represent that the Service are appropriate or available for use outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and are responsible for compliance with all applicable laws.
- MARTEC360 RESERVES THE RIGHT TO CHANGE CREDIT OR PAYMENT TERMS WHEN IN THEIR OPINION, THE FINANCIAL CONDITION OR PREVIOUS CUSTOMER PAYMENT RECORD SO WARRANTS.
- MARTEC360 RESERVES THE RIGHT TO CHARGE A LATE PAYMENT FEE OF $75.00 PER DAY AFTER 5 DAYS FROM PAYMENT DUE DATE.
- MARTEC360 RESERVES THE RIGHT TO DISCONTINUE ALL SERVICES FOR NON-PAYMENT OF ANY ACCOUNT OVER 30 DAYS WHICH MAY CAUSE CUSTOMER SUBSTANTIAL OPERATIONAL DISFUNCTION AND LOSS OF REVENUE. CUSTOMER WILL RECEIVE A 72 HOUR AND 24 HOUR WRITTEN DEMAND OF PAYMENT BEFORE ANY SERVICES ARE DISCONTINUED.
- EXPRESS WARRANTY: The liability of MARTEC360 is limited at our option to the replacement, re-repair or re-supply of the services or the payment of the cost of the services that we were contracted to perform. THIS EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES PROVIDED HEREUNDER.
- LOSS OF BUSINESS REVENUE: MARTEC360 shall not be liable for any loss or damage (DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, LOSS OF USE OR LOSS OF ECONOMIC BENEFIT) which you may suffer which is in any way attributable to any delay in performance or completion of our contract, however that delay arises. MARTEC360 RESERVES THE RIGHT TO DISCONTINUE ALL SERVICES FOR NON-PAYMENT OF ANY ACCOUNT OVER 30 DAYS WHICH MAY CAUSE CUSTOMER SUBSTANTIAL OPERATIONAL DISFUNCTION AND LOSS OF REVENUE.