Marlin Software, LLC Terms of Service
Last modified: May 14, 2020.
Terms of Service
These terms of service (the “Terms of Service”) shall apply to any purchase or procurement of Products or Services by the legal entity procuring such Products or Services (“CUSTOMER”) from Marlin Software, LLC, a limited liability company formed under the laws of the state of Delaware, with offices located at 10 Research Pkwy, Suite 100, Wallingford, CT 06492 (“MARLIN”). CUSTOMER and MARLIN may be referred individually as a “PARTY” and collectively as the “PARTIES”. To the extent that there is a conflict between these Terms of Service and another set of terms and conditions in the Order Form (as defined below) issued by MARLIN to the CUSTOMER, the specific conflicting terms of the Order Form shall prevail. To the extent that there is a conflict between these Terms of Service and a CUSTOMER purchase order terms and conditions, these Terms of Service shall prevail. Any other variation from these Terms of Service shall require the signed consent of an authorized MARLIN representative.
The following terms will have the meanings set forth in this Article 1 when used in this Agreement.
1.1. “Confidential Information” is defined in Article 14.1 below.
1.2. “Initial Term” is defined in Article 3.1 below.
1.3. “Order Form” means an ordering document addressing the acquisition of a specific set of Products, Professional Services, SaaS, and/or Support Services, on the form attached hereto as Exhibit A (or a similar form), executed by authorized representatives of each PARTY.
1.4. “Personal Data” is defined in Article 14.7 below.
1.5. “Product” means a product that an Order Form calls on MARLIN to sell to CUSTOMER for CUSTOMER’S use.
1.6. “Professional Services” means professional services that an Order Form calls on MARLIN to provide to CUSTOMER. For avoidance of doubt, Professional Services does not include SaaS.
1.7. “Renewal Term” is defined in Article 3.1 below.
1.8. “SaaS” means a software-as-a-service that an Order Form calls on MARLIN to host for CUSTOMER’s use. For the avoidance of doubt, SaaS does not include Professional Services.
1.9. “Services” shall mean SaaS, Professional Services, and Support Services collectively, as applicable.
1.10. “Specifications” refers to such technical and functional specifications for SaaS included or referenced in an Order Form.
1.11. “Support Services” references to maintenance support for the SaaS.
1.12. “Term” is defined in Article 3.1 below.
2. Payment Terms.
2.1. Fees. CUSTOMER will pay MARLIN the fees and charges set forth in, and in accordance with, the Order Form.
2.2. Payment Term. Unless otherwise identified on the Order Form, all fees and charges for any Products and Services shall be payable annually in advance by CUSTOMER within thirty (30) days of the invoice date. CUSTOMER may be subject to a fee upcharge if it selects monthly or quarterly invoicing, and in such cases, CUSTOMER will be required to provide MARLIN with a valid, active credit card to be kept on file. Late, unpaid invoices by CUSTOMER shall be subject a five percent (5%) late fee plus one and one half percent (1.5%) interest per month or the maximum amount allowed by law, whichever is less, which shall be added to the fee due and owed to MARLIN. In addition to any rights or remedies that MARLIN may have at law or in equity, CUSTOMER acknowledges that if payment is not made within ninety (90) days of the date of the invoice, then, notwithstanding any language to the contrary in these Terms of Service, MARLIN will have the right to terminate or disable all relevant Products and Services with no liability to you, including any liability for loss of content or for lack of backup.
2.3. Taxes. All fees are exclusive of all applicable taxes, duties and similar levies. CUSTOMER shall pay all applicable taxes and assessments arising on or in connection with these Terms of Service (other than taxes based upon the net income of MARLIN).
3. Term and Termination
3.1. Term. Unless otherwise identified in the Order Form or terminated earlier in accordance with this Article 3, the Order Form shall continue for an initial term of one (1) year from the effective date listed therein (the “Initial Term”). After the Initial Term, the Order Form will renew automatically for one-year terms (each, a “Renewal Term”) unless a PARTY gives at least sixty (60) days written notice of termination to the other PARTY prior to the expiration of the then current Term. The Initial Term and any Renewal Terms are referred to collectively herein as the “Term”. The Order Form fees may be adjusted on an annual basis by MARLIN, effective on the commencement of a Renewal Term, and shall be reflected and delivered to CUSTOMER in an updated invoice prior to taking effect.
3.2. Termination. Either PARTY may terminate the Order Form by written notice to the other PARTY before the expiration of the Term if the other PARTY materially breaches any of these Terms of Service and does not cure the breach within thirty (30) days after written notice of the breach. Either PARTY may also terminate these Terms of Service before the expiration of the Term if the other PARTY ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. Except where an exclusive remedy may be specified in these Terms of Service, the exercise by either PARTY of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms of Service, by law, or otherwise. Once the Order Form expires or terminates, CUSTOMER shall return to MARLIN, or destroy and certify in writing, all copies of the SaaS, MARLIN Confidential Information, Specifications and all other tangible materials related to the SaaS, including without limitation, all modifications and derivative works thereof.
All delivery and installation dates are based on the prompt receipt by MARLIN of all required information enabling achievement of such dates and MARLIN reserves the right to change such dates in the event additional information is necessary or other information was not provided.
5. Risk of Loss
Unless otherwise specifically agreed to by the PARTIES, the risk of loss or damage shall pass to the CUSTOMER upon collection of the Products by the first carrier at MARLIN’s premises, plants or warehouses. Delivery of Products by MARLIN will be deemed to be made to the CUSTOMER upon obtaining a signed receipt from the carrier showing receipt of the Products in good order. Title passes upon full payment of the Products.
MARLIN may furnish suitable substitutes for Products unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers, provided such substitutions do not adversely affect the technical soundness of the Products. MARLIN assumes no liability for deviation from published dimensions and descriptive information not essential to proper performance of the Products.
Claims for shortages or errors must be submitted to MARLIN within thirty (30) days after the invoice date, and the failure to give such notice shall constitute an unqualified acceptance and waiver of all such claims by the CUSTOMER.
MARLIN reserves the right to make shipments in installments, unless otherwise expressly stipulated in the Order Form; and all such installments when separately invoiced shall be paid for when due per the invoice without regard to subsequent shipments. Delay in shipment of any installment shall not relieve the CUSTOMER of its obligation to accept remaining shipments.
9. Force Majeure
MARLIN will be excused from and not be liable for any non-performance of the Order Form if such delay or nonperformance is due to any cause beyond the reasonable control of MARLIN, or which MARLIN could not reasonably foresee or reasonably provide against, and which prevents MARLIN from carrying out the terms of the Order Form. This includes but is not limited to the following: war, revolution, insurrection or hostilities (whether declared or not), riot, economic upheaval, civil commotion or uprising, flood, earthquake, tempest, hurricane, lightning or other natural disaster; fire or explosion; strike, lockout or other industrial disturbance whether at MARLIN or one of its suppliers; sabotage, accident, embargo, car shortage, wrecks or delays in transportation, non-delivery of materials or order or action of government authority. Any delay resulting from such cause shall extend the date of delivery accordingly. MARLIN reserves the right to cancel the Order Form, if in its opinion such circumstances threaten or cause extended delay in the performance thereof.
10. Representations and Warranties
10.1. Product Warranties. Unless otherwise specified on the Order Form, MARLIN warrants that all Products supplied by MARLIN as part of the Order Form, if any, will: (a) be delivered in a workmanlike manner in accordance with industry standards; and (b) be covered only by the manufacturer’s warranty which will be passed on to CUSTOMER to the fullest extent allowed, if any.
10.2. SaaS Warranties. Unless otherwise specified in the Order Form, MARLIN warrants that: (a) it has a right to grant a license to use the SaaS in accordance with these Terms of Service; (b) the SaaS will be delivered in a workmanlike manner in accordance with industry standards; and (c) the SaaS will perform substantially in accordance with the Specifications and general industry standards during the Term. If CUSTOMER believes there has been a breach of warranty it must notify MARLIN describing the issue in sufficient detail. In the event of breach of the warranty in this Article 10.2, CUSTOMER’s sole remedy shall be, at MARLIN’s discretion: (i) MARLIN shall repair the SaaS; (ii) replace the SaaS with software of substantially similar functionality; or (iii) terminate the applicable Order Form and refund CUSTOMER a prorated portion of applicable fees paid to MARLIN by CUSTOMER for the SaaS not in compliance with this warranty.
10.3. Professional Services Warranties. MARLIN represents and warrants that the Professional Services, including without limitation implementation services, will be provided in a professional and workmanlike manner.
10.4. Support Services. MARLIN represents and warrants that it will provide any Support Services that support the SaaS, including without limitation maintenance services, in a professional and workmanlike manner.
10.5. Right to Contract & Disclose. Each PARTY represents and warrants that: (a) it has the legal power to enter into the Order Form; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; and (c) it is not a party to any agreement with a third-party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder.
10.6. Compliance with Laws. Each PARTY’s business and performance is and will be in compliance with all applicable international, federal, state, and local laws and government rules and regulations.
10.7. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE 10, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MARLIN MAKES NO GUARANTEE OF AVAILABILITY OF THE SERVICES AND RESERVES THE RIGHT TO CHANGE, WITHDRAW, SUSPEND, OR DISCONTINUE ANY FUNCTIONALITY OR FEATURE OF THE SERVICES AT ANY TIME.
11. Grant of License for SaaS
11.1. License Grant. During the Term, MARLIN hereby grants to CUSTOMER a non-exclusive, non-transferable license use the SaaS solely for its internal business purposes. CUSTOMER shall not sell, lease, assign, sublicense or otherwise transfer or disclose the SaaS in whole or in part, to any third-party. CUSTOMER shall not copy the SaaS in whole or in part, except as reasonably necessary for archival back-up purposes and for CUSTOMER’s internal modification and use of the SaaS as permitted under these Terms of Service. All copies of the SaaS must contain all proprietary marks, legends and copyright notices that appear on the original copies delivered to CUSTOMER by MARLIN.
11.2. Usage Guidelines. As a part of the SaaS, CUSTOMER will have access to photos, illustrations, web art images, clip art, and fonts (the “Content”) based on the level of subscription purchased, which are licensed and owned either by MARLIN or third-party sources. CUSTOMER is permitted to use and display the Content subject to the following restrictions: (a) CUSTOMER may only download and use the Content for internal business purposes; (b) CUSTOMER may not use the Content to create a service that is similar to or competes with any feature of the SaaS; (c) CUSTOMER may not copy, edit, or redistribute the Content without MARLIN’s express permission; (d) CUSTOMER may not use the Content related to identifiable persons, governments, or companies for any commercial purposes or in a manner that in any way implies endorsement or association with a product, service, entity.
12. Support Services
In consideration of payment of the maintenance fees, MARLIN shall provide Support Services. MARLIN shall have no obligation to provide such Support Services if there is a material defect in the SaaS caused by malfunction of non-MARLIN hardware or software, by modification of the SaaS not made by MARLIN, by operator error, or by use of the SaaS that is not in accordance with the Specifications. Notwithstanding the foregoing, if CUSTOMER actively subscribed to the Complete Care support solution, when there is a defect with MARLIN-supplied hardware that in MARLIN’s sole discretion cannot be cured remotely by MARLIN, then MARLIN shall provide CUSTOMER with new hardware at no additional cost to CUSTOMER.
13. Intellectual Property
CUSTOMER hereby recognizes that MARLIN retains all intellectual property rights in the Services, Specifications, and MARLIN Confidential Information, including without limitation, all corrections, modifications and other derivative works thereof developed by CUSTOMER.
14. Confidentiality (Data Security)
14.1. Definition. “Confidential Information” refers to the following items one PARTY to these Terms of Service discloses (“Discloser”) to the other PARTY (the “Recipient”) under these Terms of Service: (a) the terms and conditions of these Terms of Service; (b) information relating to a PARTY’s business, customers, financial condition, or operations; (c) a PARTY’s information technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium or oral and marked or clearly identified by a PARTY as confidential or proprietary at the time of disclosure; and (e) any other nonpublic, sensitive information, including Personal Data.
14.2. Exceptions. Confidential Information does not include information that (a) is known to the Recipient prior to its first receipt of such information from the Discloser, (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by Recipient, (c) is independently developed by the Recipient without access to or use of the Confidential Information; or (d) is approved for release by the Discloser.
14.3. Nondisclosure. Recipient will not use Confidential Information for any purpose other than pursuant to these Terms of Service. Recipient: (a) will not disclose Confidential Information to any employee of Recipient unless such person needs access for such purpose is subject to a nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms of Service; and (b) will not disclose Confidential Information to any other third-party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
14.4. Retention of Rights. These Terms of Service do not transfer ownership of Confidential Information or grant a license to the Recipient. Discloser will retain all right, title, and interest in and to all Confidential Information.
14.5. Return of Confidential Information. Upon termination of these Terms of Service, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
14.6. Data Security. Notwithstanding and in addition to the foregoing confidentiality obligations, MARLIN agrees that it will maintain appropriate technical and organizational measures to comply with industry standard practices and all applicable laws and regulations, including without limitation all applicable laws and regulations relating to privacy, security, and with respect to the use, processing, handling, security, storage, and disclosure of Personal Data under these Terms of Service. In addition, MARLIN shall provide its Services in accordance with generally recognized information security practices, guidelines, or requirements. Upon reasonable written request by CUSTOMER, MARLIN shall make available for inspection its most recent IT security policy and operative written data security procedures. In the event of unauthorized disclosure of Personal Data resulting from a security breach, MARLIN shall, after MARLIN first becomes aware of such occurrence, (a) promptly notify CUSTOMER of any security breach; and (b) reasonably cooperate with CUSTOMER to investigate the security breach.
14.7. Personal Data. Personal Data means information which, alone or in combination with other personal information, can be used to distinguish or trace a specific individual. Personal Data includes individual names, social security numbers, telephone numbers, home addresses, driver’s license numbers, account numbers, email addresses, and vehicle registration numbers.
CUSTOMER agrees to indemnify, defend and hold MARLIN harmless from all liabilities, damages, costs and expenses incurred by MARLIN to the extent resulting from any claim, action, suit or other legal proceeding by a third party claiming CUSTOMER’s use of the Services (i) are libelous; (ii) infringe upon the copyrights, trademarks, trade secrets or other proprietary rights of a third party; or (iii) result in any tort, injury, damage or harm of any kind to a third party.
16. Limitation of Liability
MARLIN’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OF SERVICE SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER UNDER THE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE RELEVANT CLAIM. IN NO EVENT SHALL MARLIN BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MARLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
17. Export Controls
Each PARTY agrees that it will individually obtain any export licenses that may be required under applicable laws prior to any export or re-export of goods or information provided under these Terms of Service.
18. Governing Law
The formation, construction, and interpretation of these Terms of Service shall be controlled by the laws of the State of Delaware. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of these Terms of Service. Any dispute relating to these Terms of Service shall be subject to the exclusive jurisdiction of the state and federal courts in the State of Delaware, U.S.A., and the PARTIES agree to submit to the personal and exclusive jurisdiction and venue of these courts.
Neither PARTY will be deemed to have waived any of its rights under these Terms of Service by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms of Service will constitute a waiver of any other breach of these Terms of Service.
If a court of competent jurisdiction rules that a provision of these Terms of Service is unenforceable, such provision will be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of these Terms of Service will continue in full force and affect.
21. Entire Agreement; Modification
These Terms of Service together with the order form constitute the complete agreement between the PARTIES and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of these Terms of Service and such additional documents. These Terms of Service may not be modified or amended except in writing signed by both PARTIES.
22. Independent Contractors
Nothing contained herein or done in pursuance of these Terms of Service shall constitute either PARTY the agent, partner or joint venture of the other for any purpose or in any sense whatsoever.
23. No Third-Party Beneficiaries
There are no third-party beneficiaries to these Terms of Service.
CUSTOMER shall not assign its rights or delegate its obligations under these Terms of Service without the prior written consent of MARLIN except that CUSTOMER may assign any right or obligation set forth in these Terms of Service to a successor entity in the event of a merger, consolidation or sale of CUSTOMER’s business or all or substantially all of CUSTOMER’s stock or assets, provided the assignee agrees in writing to assume all of CUSTOMER’s obligations and obligations under these Terms of Service. Any attempted assignment in violation hereof shall be void and of no force or effect. MARLIN may assign its rights and delegate its duties hereunder at any time without the consent of CUSTOMER.
Notwithstanding anything to the contrary herein, the provisions within these Terms of Service which, by their purpose or nature, are intended to survive expiration or termination of these Terms of Service, shall survive expiration or termination of these Terms of Service.
Notices or other communication under these Terms of Service will be in writing and will be effective when delivered personally or by overnight courier, emailed with return acknowledgement, or mailed, postage prepaid, certified or registered mail to each PARTY at the address set forth in the applicable order form (or to such other address as either PARTY may from time to time provide the other.
27. No Strict Construction
The language used in these Terms of Service will be deemed the language chosen by the PARTIES to express their collective mutual intent. These Terms of Service will be construed as if drafted jointly by the PARTIES and no rule of strict construction will be applied.
The headings provided in these Terms of Service are for convenience only and shall not be used in interpreting or construing these Terms of Service.