These Terms and Conditions (these “Terms and Conditions”) between Marq Vision Inc., a Delaware corporation (“Marq Vision”) and you (“Client” or “you” or “your”), are an integral part of the Order Form (together with all schedules and attachments thereto, the “Order Form”, and together with these Terms and, the “Agreement”) entered into between Client and Marq Vision. Marq Vision and Client may be referred to individually as a “Party” or collectively as the “Parties”.
By signing the Order Form, by accessing or using the Services, or clicking through on our website, you acknowledge that you have read, understood, have the authority to, and agree to be bound by the Agreement. If you are entering into the Agreement on behalf of your customer, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the Agreement, in which case the terms “you” or “your” shall also refer to such entity and its affiliates.
Marq Vision may change or revise these Terms and Conditions at its discretion. If any change or revision to these Terms and Conditions is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to firstname.lastname@example.org. Otherwise, you will be bound by the changed or revised terms. Marq Vision may change or revise these Terms and Conditions from time to time by providing ten (10) days prior notice by posting a notice on the website at https://www.marqvision.com/ or on the Platform. Your use of the Services ten (10) days after the posting of such notice shall constitute full acceptance of the revised or changed terms.
1.1 Services. Marq Vision provides the following services (collectively, the “Services”): access to Marq Vision’s proprietary software application (in both source code and object code form) for the detection, documentation and/or removal of online content on online marketplaces and websites that may infringe Client’s rights (including all Updates and Improvements, the “Platform”). The Parties may supplement or amend the Order Form from time to time, upon the execution of a signed writing between the Parties. For purposes of these Terms and Conditions, “Updates and Improvements” means any updates, bug fixes, patches, or other error corrections, and any inventions, modifications, additions, enhancements, revisions, or translations to or arising from a work, or any other form in which a work or any part thereof, may be recast, transformed, or adapted, including all intellectual property rights therein or thereto, to the Platform.
1.2 Authorization; No Legal Representation. In order to perform the Services, the Parties shall execute the Letter of Authorization attached to the Order Form, which shall grant Marq Vision the authority to report infringement to online marketplaces and websites. For the avoidance of doubt, the Services do not include any legal representation or initiating any legal proceedings (including making any claims or complaints to or before any court or judicial body). Client understands and acknowledges that Marq Vision, its affiliates and its and their employees, directors, officers and representatives (collectively, the “Marq Vision Parties”) do not and cannot provide legal guidance or advice, and in no event shall the Services constitute any creation of any potential or actual attorney-client relationship. Any legal questions should be directed to Client’s legal counsel.
1.3 Marq Vision Responsibilities. Marq Vision will perform the Services in a timely, skillful, professional, and workmanlike manner in accordance with industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet its obligations under the Agreement. Marq Vision will use and apply information security techniques, measures, tools, and protection as is necessary and consistent with good industry standards in the performance of the Services.
1.4 Client Cooperation. Client acknowledges that Marq Vision’s ability to deliver the Services is dependent upon Client’s ongoing cooperation and assistance. Client will provide Marq Vision, on a timely basis, all information, materials, and assistance reasonably necessary for Marq Vision to perform the Services, including, without limitation, information related to Client’s intellectual property rights and registrations, any authorization forms, approvals to report infringements to online marketplaces, and the Whitelist (as defined below). Marq Vision will not be responsible for delays or losses resulting from Client’s failure to fully comply with the foregoing. Without limiting the generality of the foregoing, in the event that Marq Vision is required to execute an agreement with a website or hosting provider in order to be able to report infringement therein, Client agrees to subrogate in Marq Vision’s position towards those websites or hosting providers, and covenants to assume any liability towards such websites or hosting providers that may arise out of Marq Vision’s enforcement activity therein at the request of Client and on behalf of Client. For purposes of the Agreement, “Whitelist” means the list compiled by Client comprised of sellers against whom Client does not wish to enforce its intellectual property rights or report any infringement.
2.1 Access to Platform. Subject to and conditioned upon Client’s strict compliance with all terms and conditions set forth in the Agreement, Marq Vision hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license during the term of the Agreement to use the Platform, solely for Client’s internal business purposes.
2.2 Client Responsibilities for Use of the Platform. Client is responsible and liable for all uses of the Platform resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of an employee, contractor or agent of Client who accesses and use the Platform (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Client will be deemed a breach of the Agreement by Client.
2.3 Use Restrictions. Client shall not, and shall require its Authorized Users not to, use the Platform beyond the scope of the license granted under Section 2.1. Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Client shall not at any time, directly or indirectly (a) copy, rent, sublicense, or otherwise provide third parties with access to the Platform, (b) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (c) seek or gain unauthorized access to the Platform; (d) send, store or use on the Platform any infringing, obscene, threatening, libelous or otherwise unlawful material, or any material containing viruses, worms, Trojan horses or other malicious or harmful computer code; or (e) use the Platform for purposes of competitive analysis of the Platform, the development of a competing software product or service, or any other purpose that is to Marq Vision’s commercial disadvantage.
2.4 No Reliance. Notwithstanding anything to the contrary in the Agreement, Marq Vision assumes no liability for the quality, accuracy, or validity of the data/information gathered in or by the Platform, and no oral or written information provided or made available by any Marq Vision Parties or third-party providers shall create a warranty, and in no event shall Client rely on such information.
2.5 Collection and Use of Information
(a) Client acknowledges that Marq Vision may, directly or indirectly through the services of third parties, collect and store information regarding use of the Platform and about equipment on which the Platform is used, through the provision of maintenance services and/or security measures included in the Platform. Client also acknowledges that Marq Vision may collect data submitted by Client through the Platform, including without limitation information about Client’s customers, distributors, inventory and products.
(b) Client agrees that Marq Vision may use such information for any purpose related to any use of the Platform by Client or on Client’s equipment, including but not limited to: improving the performance of the Platform, developing Updates and Improvements, and improving Marq Vision’s and/or its subsidiaries’ and/or vendors’ or customers’ business model and services; and verifying Client’s compliance with the terms of the Agreement and enforcing Marq Vision’s intellectual property rights in and to the Platform. Moreover, and notwithstanding anything to the contrary in the Agreement, Marq Vision may use any and all anonymous, de-personalized data that does not identify Client (“Anonymized Data”) for purposes of enhancing the Services, aggregated statistical analysis, technical support, developing and providing new, different, existing or in development products/services, and other business purposes.
3.1 Fees. Client will pay Marq Vision all fees listed in the Order Form (the “Fees”). All Fees are based on the Services purchased and not actual usage, and are non-refundable.
3.2 Payment Method. The payment method and frequency shall be specified in the Order Form. Unless specified otherwise, Client will pay all Fees on the same day each month, commencing on the Effective Date; provided, that in the event such day on which the Fee would be due is on a day that does not occur such month (e.g., the 29th, 30th or 31st of February, or the 31st of April, June November or September), such payment shall be due on the last day of such month. Subject to Section 3.1, if the payment method is (a) via credit card, Client hereby authorizes Marq Vision to charge Client’s credit card on a monthly basis with respect to the Services and (b) via bank transfer, Marq Vision will issue an invoice prior to the same day each month.
3.3 Late Payments; Suspension of Services. Except for invoiced payments that Client has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of one percent (1%) per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Marq Vision in collecting past due amounts. In addition to all other remedies available under the Agreement or at law or equity, Marq Vision reserves the right to suspend delivery of the Services and access to the Platform if Client fails to timely pay any undisputed amounts due to Marq Vision under the Agreement, in the event Client fails to make any payment when due and such failure continues for fifteen (15) days following the date such amounts were due. Suspension of the Services shall not release Client of its payment obligations under the Agreement. Client agrees that Marq Vision shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Services or access to the Platform resulting from Client’s nonpayment.
3.4 Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder except any taxes assessed upon Marq Vision’s net income or payroll.
3.5 Renewal of Fees. The Fees established in the Order Form may be revised upon the renewal of every subsequent subscription term, resulting in an increase the Fees every renewal term.
4.1 Marq Vision Property. Client acknowledges and agrees that the Platform is provided under license, and not sold, to Client. Client does not acquire any ownership interest in the Platform under the Agreement, or any other rights thereto, other than to use the same in accordance the license granted and subject to all terms, conditions, and restrictions under the Agreement. As between Marq Vision and Client, Marq Vision owns and retains all right, title, and interest in and to Anonymized Data (and all intellectual property rights therein) and the Services and all and all intellectual property rights arising out of or relating to the Services, except as expressly granted to Client in the Agreement.
4.2 Client Property. As between Client and Marq Vision, Client owns and retains all right, title, and interest in and to any data, files, text, graphics, images, software, works of authorship of any kind, and information or other materials that Client transmits to Marq Vision for the provision of the Services (“Client Property”). Except as expressly set out in the Agreement, no right, title, or license under any Client Property is granted to Marq Vision.
4.3 License to Use Client Property. Client hereby grants Marq Vision a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of the Agreement), and royalty-free license to access and use the Client Property during the term of the Agreement for Marq Vision to provide the Services.
6.1 Term. The term of the Agreement will begin on the Effective Date, and continue until terminated as set forth herein.
6.2 Termination. The Agreement may be terminated (a) by the written consent of both Parties; (b) by either Party upon sixty (60) days’ written notice to the other (non-terminating) Party; (c) immediately if there is a material breach of the Agreement by a Party, which has not been cured within thirty (30) days after the delivery of notice thereof by the other (non-breaching) Party; (d) immediately if the other (non-terminating) Party has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law; or (e) immediately if the other (non-terminating) Party is liquidated or dissolved.
6.3 Effect of Termination. Upon expiration or earlier termination of the Agreement: (a) the license granted in Section 2.1 shall also terminate, and Client shall cease using the Platform and destroy all copies of any documentation related thereto; (b) any authority or representation capacity granted under the Letter of Authorization will terminate and Client shall directly handle any further claims, reports, retractions or withdrawals (including any counter-notifications from any sellers) with any online marketplaces and platforms regarding Client’s intellectual property rights as of the effective date of termination, and acknowledges that Marq Vision will bear no responsibility in connection thereof as of such date; and (c) the rights and obligations of the Parties in the Agreement which, by their express terms or nature and context are intended to survive termination or expiration of the Agreement, will survive any such termination or expiration.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the full right, power and authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on the Parties’ ability to perform as required by the Agreement.
7.2 Marq Vision Representations, Warranties and Covenants. Marq Vision represents and warrants to Client that: (a) neither its grant of any license hereunder, nor the Services under the Agreement violates any applicable law, rule or regulation; (b) when used by Client or any of its authorized users, the Platform does not, to Marq Vision’s knowledge, infringe, misappropriate, or otherwise violate any intellectual property right or other right of any third party; and (c) as provided by Marq Vision, the Platform does not, to Marq Vision’s knowledge, contain any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity.
7.3 Client Representations, Warranties and Covenants. Client represents, warrants and covenants that (a) it will have qualified representatives using due care to review, validate, and verify for accuracy all information transmitted to Marq Vision for the purpose of providing the Services; (b) Client and Client Property are in compliance with all applicable laws and regulations; (c) it will use the Services to report claims of intellectual property infringement against third parties only when Client has a good faith belief in the veracity of such claims, and not for the purposes of harassment, unfair competition, overreach, or other unlawful purposes; (d) it is the rightful owner or licensee of all intellectual property rights subject to the Services; and (e) it has not relied on the availability of, or information regarding, any future functionality of the Services and the Platform or any other future product or service in executing the Agreement.
(a) Client acknowledges that while Marq Vision may be capable of covering all online marketplaces in the regions selected in the Order Form, Marq Vision does not have any obligation to cover all online marketplaces, and may elect to prioritize certain online marketplaces over others if Marq Vision determines in its reasonable discretion that covering certain online marketplaces first is critical in part of a successful enforcement strategy and in providing the Services or otherwise performing its obligations hereunder.
(c) Client acknowledges that if Client were to instruct Marq Vision to withdraw a takedown request, Marq Vision cannot guarantee that the content subject to such takedown request will be restored within a specific time frame, or restored at all, as the restoring of such content depends on the foregoing factors set forth in the preceding paragraph. As such, while Marq Vision will use commercially reasonable efforts to so withdraw any such enforcements or reportings, the ability to so withdraw is subject to the online marketplaces’ policies and as such, is outside of Marq Vision’s reasonable control.
(d) Except for the representations and warranties expressly provided in Section 7.1 and Section 7.2, the Platform and Services are provided to Client “as is” and with all faults and defects without warranty of any kind. Marq Vision, in on its own behalf and on behalf of its affiliates and service providers expressly disclaims all warranties, whether express, implied, statutory or otherwise with respect to the Platform and Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation of the foregoing, Marq Vision provides no warranty or undertaking, and makes no representation of any kind that the Services or Platform will meet Client’s requirements, achieve any intended results, operate without interruption or that any errors or defects can or will be corrected.
8.1 Indemnification by Marq Vision. Marq Vision will defend and indemnify Client, its employees, directors, officers and representatives (the “Client Indemnified Parties”) from and against any and all actions, claims, suits, losses, damages, penalties, liabilitiescosts and expenses, including reasonable attorney’s fees and any amounts paid in settlement of the foregoing (collectively, “Claims”), asserted, brought or made against any Client Indemnified Party by a third party alleging that the use of the Services or Platform in accordance with the Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Notwithstanding the foregoing, Marq Vision shall have no liability for any Infringement Claim arising from (a) Client’s use of, or supply to Marq Vision of, any Client Property; (b) use of the Services in combination with any software, hardware, network or system not supplied by Marq Vision if the alleged infringement relates to such combination; (c) any modification or alteration of the Services (other than by Marq Vision), if the alleged infringement arises in connection with such modification or alteration; or (d) Client’s violation of applicable law or third party rights (“collectively, “Excluded Claims”). THIS SECTION 8.1 SETS FORTH MARQ VISION’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2 Indemnification by Client. Client will defend, indemnify and hold harmless the Marq Vision Parties from and against any and all Claims asserted, brought or made against any Marq Vision Indemnified Party by a third party and arising out of (a) Client’s breach of the Agreement (including any representation or warranty); (b) Marq Vision’s reporting or taking actions instructed by the Client and/or under its authorization, including without limitation reporting a seller on the Whitelist; (c) Client or its representatives taking independent action as a result of its use of, or reliance on, the Platform; and/or (d) the use of the Services by Client, other than Excluded Claims. For clarity, Marq Vision will not be liable in any manner (except for Marq Vision’s gross negligence) for the shutdown of fraudulent or infringing websites, as instructed by Client.
8.3 Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified Party giving prompt written notice to the indemnifying Party of any claim subject to indemnification, and giving the indemnifying Party sole control of the defense or settlement of the claim. The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party.
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARQ VISION’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE WHICH IS THE BASIS OF THE ASSERTED CLAIMS. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
9.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THE AGREEMENT.
10.1 Nature of Relationship. Marq Vision will act as an independent contractor under the Agreement and will perform its obligations under the Agreement using its own employees, contractors or agents. Marq Vision will in its sole discretion, determine the manner and means of accomplishing those obligations and will direct, control and supervise its employees. Nothing in the Agreement creates agency, joint venture or other similar relationship between the Parties.
10.2 No Acts in Violation of Law; Conflicts. No Party shall be required to take any action that such Party reasonably believes in its sole judgment conflicts with any applicable law (including common law), statute, treaty, tariff, rule, regulation, ordinance, order, code, judgement, decree, directive, injunction, writ or similar action or decision or violates any court, order or decree by any federal, national, regional, state, municipal or local government.
10.3 Severability; Construction. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. The provisions of the Agreement shall be interpreted in a reasonable manner to effect the intentions of the Parties as expressed in the Agreement.
10.4 Entire Agreement. These Terms and Conditions (together with the Order Form and all schedules and attachments thereto) constitutes the entire agreement between the Parties and supersedes all prior proposals, marketing materials, both written and oral between the Parties
10.5 Waiver. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right.
10.6 Governing Law. The Agreement and all related documents including all exhibits attached hereto are governed by, and construed in accordance with, the laws of the State of California, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
10.7 Venue; Waiver of Jury Trial. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Agreement (which includes, for the avoidance of doubt, the Order Form and these Terms and Conditions), and all contemplated transactions, in any forum other than the courts of the State of California sitting in Los Angeles, California, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of California sitting in Los Angeles, California. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT (WHICH INCLUDES, FOR THE AVOIDANCE OF DOUBT, THE ORDER FORM AND THESE TERMS AND CONDITIONS), IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT (WHICH INCLUDES, FOR THE AVOIDANCE OF DOUBT, THE ORDER FORM AND THESE TERMS AND CONDITIONS),, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.8 Assignment. Neither Party may assign or delegate the Agreement, or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other Party. Notwithstanding the foregoing, Marq Vision may assign the Agreement, or any of its rights or duties hereunder, (a) in connection with the sale or other transfer of substantially all of its business or assets to a third-party or (b) to an affiliate. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
10.9 Headings. The headings in the Agreement are for reference only and shall not affect the interpretations of the Agreement.
10.10 Notices. All notices under the Agreement shall be in writing and shall be delivered to the addresses first set forth by each Party on the Order Form. Either Party may change its address for notice by giving written notice of such address change in the manner provided herein.
10.11 Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under the Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Marq Vision not being able to provide the Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.