PEAK / CAMP / OIS Platform as a Service (PaaS) Terms
- 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 PEAK/CAMP 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 PEAK/CAMP 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 systems. 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 monthly term length, effective beginning the date of first payment and ending based on subscription length in signed agreement.
- 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 PEAK/CAMP 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, accessible 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 PEAK/CAMP at its sole option, with or without notice to Customer. Additional claims for payment default remain reserved.
- In the event MARTEC360 materially breaches this 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 prepaid and is subject to the material breach and remains uncured.
- The PEAK/CAMP subscription will automatically renew month-to-month, 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 24-month subscription, with at least thirty (30) days with written notice prior to the automatic renewal.
- Subject to applicable law, the content of all MARTEC360 PEAK/CAMP 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 PEAK/CAMP. 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 PEAK/CAMP “as is” without any warranty or condition of any kind, express or implied. MARTEC360 does not guarantee uninterrupted, secure or error-free operation of PEAK/CAMP. 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 PEAK/CAMP. No information obtained from MARTEC360 or through PEAK/CAMP, 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 PEAK/CAMP 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 PEAK/CAMP 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 PEAK/CAMP 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 $150.00 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 DYSFUNCTION 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 DYSFUNCTION AND LOSS OF REVENUE.
Website Project Terms
Last Modified 8/1/2018
- SUPPLY OF MATERIALS:You must supply all materials and information required by us to complete the work in accordance with any agreed specification. Such materials may include, but are not limited to, photographs, written copy, logos and other printed material. Where there is any delay in supplying these materials to us which leads to a delay in the completion of work, we have the right to extend any previously agreed deadlines by a reasonable amount.
- VARIATIONS: We are pleased to offer you the opportunity to make revisions to the design. However, we have the right to limit the number of design proposals to a reasonable amount and may charge for additional designs if you make a change to the original design specification.
Our website development phase is flexible and allows certain variations to the original specification. However any major deviation from the specification will be charged at the rate of $150 per hour.
- PROJECT DELAYS AND CLIENT LIABILITY: Any time frames or estimates that we give are contingent upon your full co-operation and complete and final content in photography for the work pages. During development there is a certain amount of feedback required in order to progress to subsequent phases. It is required that a single point of contact be appointed from your side and be made available on a daily basis in order to expedite the feedback process.
- APPROVAL OF WORK: On completion of the work and the project being set into UAT, you will be notified and have the opportunity to review it. You must notify us in writing of any unsatisfactory points within 14 days of such notification. Any of the work which has not been reported in writing to us as unsatisfactory within the 14-day review period will be deemed to have been approved.
- REJECTED WORK: If you reject any of our work within the 14-day review period, or not approve subsequent work performed by us to remedy any points recorded as being unsatisfactory, and we, acting reasonably, consider that you have been unreasonable in any rejection of the work, we can elect to treat this project as at an end and take measures to recover payment for the completed work.
- WARRANTY BY YOU AS TO OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS: You must obtain all necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trade marks, or any other material that you supply to us to include in your website or web applications.
You must indemnify us and hold us harmless from any claims or legal actions related to the content of your website.
- SEARCH ENGINES: We do not guarantee any specific position in search engine results for your website. We perform standard search engine optimization (details in website requirements) according to current best practices.
- LOSS OF BUSINESS REVENUE: We shall not be liable for any loss or damage which you may suffer which is in any way attributable to any delay in performance or completion of our contract, however that delay arises.
- DISCLAIMER: To the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise (other than the express provisions of these terms and conditions) relating in any way to the services we provide to you are excluded. Without limiting the above, to the extent permitted by law, any liability of MARTEC360 under any term, condition, warranty or representation that by law cannot be excluded is, where permitted by law, 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.
- SUBCONTRACTING: We reserve the right to subcontract any services that we have agreed to perform for you as we see fit.
- ADDITIONAL EXPENSES: You agree to reimburse us for any requested expenses which do not form part of our proposal including but not limited to the purchase of third party software, stock photographs, fonts, domain name registration, SSL certificates, web hosting or comparable expenses.
You are responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law will hold harmless, protect, and defend and indemnify MARTEC360 and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from your or your clients’ use of Internet electronic commerce.
- Initial Payment and Refund Policy
This agreement begins with an initial payment is made. If [Company Name] halts work and applies for a refund within 4 days, work completed shall be billed at the hourly rate of $250/hour, and deducted from the initial payment, the balance of which shall be returned to [Company Name]. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, [Company Name] shall be liable to pay for all work completed at the hourly rate stated above. No portion of this initial payment will be refunded unless requested within 4 days of signing this contract.
Term. This Agreement shall remain in effect until for a period set forth in the website solution pricing terms 36 months.
Liability Limitation. YOU ACKNOWLEDGE AND AGREE THAT MARTEC360 SHALL NOT BE LIABLE WITH RESPECT TO, OR RESPONSIBLE FOR, ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, (i) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (ii) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR, (iii) TO THE EXTENT ALLOWABLE UNDER STATE LAW, PERSONAL INJURY OR DEATH. IN NO EVENT WILL MARTEC360’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $100.00, OR THE AMOUNT LICENSEE ACTUALLY PAID MARTEC360 UNDER THIS AGREEMENT (IF ANY) DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.
Disclaimer of Warranties. YOU AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. MARTEC360 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WHILE REASONABLE EFFORT HAS BEEN MADE TO ENSURE THAT YOU WILL RECEIVE THE SERVICES, MARTEC360 MAKES NO WARRANTY THAT SERVICES RENDERED TO YOU ACCORDING TO THIS AGREEMENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MARTEC360 MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. MARTEC360 MAKES NO WARRANTY REGARDING ANY TRANSACTIONS ENTERED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MARTEC360 OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
Ownership. Title to all intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services (the “MARTEC360 Intellectual Property Rights”) will remain the exclusive property of MARTEC360. Nothing contained in this Agreement grants or confers, or shall be construed to grant or confer, any rights in or to any of the MARTEC360 Intellectual Property Rights. Title to any third-party products included in the MARTEC360 Intellectual Property Rights, or otherwise provided to you by MARTEC360, and all intellectual property rights in and to them, are and will remain the exclusive property of such third parties.
Indemnity. You agree to release, indemnify, defend and hold harmless MARTEC360 and any of MARTEC360’s contractors, agents, employees, officers, members, managers, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Services or your use of such Services, including without limitation infringement or dilution by you, or someone else using our Services from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the Services provided, (e) any information or data you supplied to MARTEC360, or (f) any liability related to the use of the Accounts, including words and phrases used in connection with your Accounts. The terms of this paragraph will survive any termination or cancellation of this Agreement.
Representations and Warranties. You agree and warrant that: (i) your use of the any of the Services will not directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you are the legal owner and have the legal right to perform editing of any of the Accounts registered with the Services, (iv) you are of legal age to enter into this Agreement; and (vi) you agree to comply with all applicable laws and regulations. Any charges obliged by your Account provider will solely apply to you. You agree to pay and maintain any service agreement that you have with your Account provider. You agree to allow MARTEC360 to change any settings with your Account provider and agree to pay all media charges caused by such operations even if charges increase as a result.
Miscellaneous. Any dispute arising from this Agreement will be litigated or arbitrated in Hillsborough County, Florida. This Agreement shall be governed in accordance with the laws of the State of Florida, without regard to or application of Florida conflicts of law principles. This Agreement represents the entire agreement between all parties hereto concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations, and negotiations.