Your End User License is based on each component of your purchase(s). Please click on the sections below to view either summary or detailed agreement text. In the event of a conflict between the summary and detailed text, the detailed text will take precedence.
SUMMARY of End User Agreements
(#1) MarvelCoder Online Courses are copyright content, owned by the author. You have read-only access via our website for the number of licenses you’ve purchased. You may not share your login credentials. You may, however, use your own login credentials on up to 5 computer devices, but can only use one device at a time. The course content is best viewed on a laptop, or larger, sized display. LIFETIME access is provided to the original purchaser only, defined as ten (10) years. The nature of software technology is such that the fast pace of change might make the course content obsolete after ten years.
(#2) The MarvelCoder Cloud IDE is copyright content and software, owned by the author. You have web-browser access to the Marvel Coder Cloud IDE for the term of your pre-paid subscription, for the number of licensed users purchased, for the time period specified in your purchase. You may not share your login credentials. You may, however, use your own login credentials on up to 5 computer devices, but can only use one device at a time. The MarvelCoder Cloud IDE is best used on a laptop, or larger, sized display. After your subscription expires, you may renew at the price stated when you purchased the Cloud IDE portion of your product. A more detailed agreement addressing the MarvelCoder Cloud IDE can be found below, on this web page.
(#3) The MarvelCoder Desktop IDE (the “IDE”) is copyright content and software, owned by the authors. There are multiple authors, each owning their contributed portions of the IDE. The IDE includes open-source components, so your license to use the IDE is subject to the associated open-source license. Any proprietary content, code, text or designs are identified by the owner’s copyright notices and other text indicating it is a proprietary component. The IDE is composed of both open-source and proprietary components. Your purchase includes the number of named users that you’ve paid for. You may use the IDE on up to 5 computer devices, but can only use one device at a time. You can use the IDE software indefinitely. We may provide minor updates for up to one (1) year without charge. From time to time, we may contact you with offers to purchase major upgrades or add-on modules, for an extra fee. If you do not want to receive such communications from us, notifying your of minor or major upgrades, you may unsubscribe from our mailing list.
DETAILED Subscription Agreement for Online Cloud IDE Services
This Subscription Agreement (Agreement) is for Your use of the Tutorial and IDE-Services (IDE-Services) to (a) learn how to write software code, and (b) develop and maintain software code and services that may operate independently or interoperate with or complement Our online platform, code and/or applications.
YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING A CHECK BOX OR BUTTON OR EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING THE IDE-SERVICES. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE IDE-SERVICES.
You may not, without Our prior written consent, access or use the IDE-Services:
- for production purposes, or
- if You are Our direct competitor, or
- to monitor the availability, performance or functionality of the IDE-Services, or
- for any other benchmarking or competitive purposes.
You may not, without Our prior written consent, access or use any MarvelCoder services, including the IDE-Services, to Commercially Distribute Your Application to third parties unless You are authorized to do so pursuant to a separate agreement with Us. Any violation of the preceding sentence shall be deemed a material breach of this Agreement. You are Commercially Distributing Your Application if installation, access, and/or use of any version of Your Application or its features and capabilities require the payment of fees of any kind to You (including, e.g., if Your Application integrates to or makes use of any application or other product or service for which You collect fees, or if the Your Application is provided under a “freemium” payment model).
This Agreement was last updated on May 7, 2018. It is effective between You and Us as of the date of You accept this Agreement.
Table of Contents
- Provision and use of services
- Third-party providers
- No fees for services
- Proprietary rights
- Limited warranties and disclaimers
- Limitation of liability
- Term and termination
- Additional terms applicable to supplemental services
- MarvelCoder.com Sites
- Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- General Provisions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“AppExchange” means the online directory of software code and/or applications that interoperate with the IDE-Services, located at https://www.MarvelCoder.com/appexchange or at any successor websites.
“Cloud IDE Services” or “Basic IDE-Services” means the Developer Edition, and any other versions We designate as developer versions, of the online, Web-based applications and platform We provide via one of our websites or https://www.MarvelCoder.com, as described in the in our documentation, that We may make generally available to Our developer community at no charge, excluding tools and resources accessible outside the above-described applications and platform and excluding paid MarvelCoder Content and Third- Party Applications.
“MarvelCoder Content” means the content, information, resources, documentation, code, tools, toolkits, developer environments and/or communities, contests, promotions and/or programs accessible via http://MarvelCoder.com, and/or http://*.marvelcoder.com, and other paid items as updated from time to time.
IDE-Services means Basic IDE-Services and Supplemental IDE-Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Order Form” means the ordering documents for any purchases of Supplemental Developer Services hereunder, including addenda thereto, that are entered into by You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Supplemental Developer Services” means any versions We designate as developer versions of the online, Web- based applications and platform We provide via http://www.MarvelCoder.com or http://*.marvelcoder.com as described in our documentation, and any versions of other services We provide and designate as developer versions, that we make generally available to Our developer community for a fee and that You order at our online store or under an Order Form. Supplemental Developer Services exclude Basic IDE-Services, MarvelCoder Content and Third-Party Applications.
Third-Party Applications means online, Web-based applications and offline software products that are provided by third parties, interoperate with the IDE-Services, and are identified as third-party applications, including but not limited to those listed on the AppExchange.
“User” means an individual who is authorized by You to use the IDE-Services and who has been supplied a user identification and password by You (or by Us at Your request). A User may be, without limitation, your employee, consultant, contractor or agent, or a third party with which You transact business, or an employee or contractor of such a third party.
User Subscription means a subscription granted by Us to You for IDE-Services, which is assigned by You to a User. The duration of any User Subscription shall be as described in Section 10.2 (Term of Basic IDE-Service User Subscriptions) or Section 11.7.a (Term of Supplemental Developer Service User Subscriptions), as applicable.
We, Us or Our means the MarvelCoder company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
You or Your means you personally or the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
Your Application means an online software code and/or application that You create using, and that interoperates with, the IDE-Services.
“Your Data” means all electronic data or information submitted by You to the IDE-Services.
- PROVISION AND USE OF IDE-SERVICES
2.1. Provision of IDE-Services. We shall make the IDE-Services available to You pursuant to this Agreement.
2.2. User Subscriptions. Unless otherwise agreed in writing by Us, IDE-Services are made available as User Subscriptions and may be accessed by a number of Users no greater than the number of user IDs we allocate to You. User Subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the IDE-Services.
2.3. Our Responsibilities. We shall use commercially reasonable efforts to: (i) make the IDE-Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall endeavor to give at least 3 hours notice via the IDE-Services), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures, hosting providers, software bugs or delays, and (ii) provide the IDE-Services in accordance with applicable laws and government regulations. The Basic IDE-Services exclude support. We may make developer support available separately as a Supplemental Developer Service or through other programs from time to time.
2.4. Your Responsibilities. You shall (i) be responsible for Users compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the IDE-Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the IDE-Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the IDE-Services available to any person or entity other than Users, (b) sell, resell, rent or lease the IDE-Services, (c) use the IDE-Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or confidentiality rights, (d) use the IDE-Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the IDE-Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the IDE-Services or their related systems or networks.
2.5. Usage Limitations. IDE-Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for IDE-Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide.
2.6. Use of Live Developer Content. You may use Live Developer Content in connection with the Developer
- THIRD-PARTY PROVIDERS
3.1. Your Acquisition of Third-Party Products and Services. To use the IDE-Services, You must have a supported computer device, Web browser and Internet connection; no purchase of any other third-party products or services is required to use the IDE-Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, are solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as certified or otherwise, except as specified in an Order Form.
3.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with IDE-Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the IDE-Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The IDE-Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the IDE-Services.
3.3. IDE-Service Features that Integrate with Third-Party Services. The IDE-Services contain features designed to interoperate with third-party services (which may include, for example, Google, Facebook and Twitter services). Such Developer Service features depend on those third-party providers continuing to make their services, including their application programming interfaces (APIs) where applicable, available for the IDE-Services. If any of those third-party service providers ceases to make its applicable services or APIs available on reasonable terms for the IDE-Services, We may cease providing the corresponding features without entitling You to any refund, credit, or other compensation.
- FEES FOR IDE-SERVICES
We currently provide the IDE-Services at our published prices. We reserve the right to change our pricing policies for IDE-Services at any time in our sole discretion. We will provide you reasonable notice of any such changes.
- PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the IDE-Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access the IDE-Services except as permitted herein, in an Order Form or in the User Guide, (ii) create derivate works based on the IDE-Services, (iii) copy, frame or mirror any part or content of the IDE-Services, other than copying or framing for Your own internal business purposes, (iv) reverse engineer the IDE-Services, or (v) access the IDE-Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the IDE-Services.
5.3. Your Applications and Code. You authorize Us to host, copy, transmit, display and adapt Your Applications and any program code that You or any User create using the IDE-Services, solely as necessary for Us to provide the IDE-Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Applications or any program code created by You or by a third party for You, including any intellectual property rights therein.
5.4. Customer Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
5.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the IDE-Services, other online services and other of our software any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the IDE-Services.
5.6. Federal Government End Use Provisions. We provide the IDE-Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the IDE-Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
5.7. Competitive Applications. Subject to Our and Your respective rights and obligations under this Agreement, We acknowledge that You may develop and make available products and services that are similar to or otherwise compete with Our products and services, and You acknowledge that We may develop and make available products and services that are similar to or otherwise compete with Your products and services.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means, in the case of information disclosed by Us to You, the IDE-Services; and in the case of information disclosed by You to Us, Your Data, and information regarding applications or other materials developed using the IDE-Services to the extent disclosed to Us by the hosting of such applications or materials on our platform or to the extent disclosed to our Customer Support organization. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party (the Disclosing Party), (ii) was known to the receiving party (the Receiving Party) prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- LIMITED WARRANTIES AND DISCLAIMERS
Each party represents and warrants that it has the legal power to enter into this Agreement. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE AND IN SECTION 11.5 (WARRANTIES) BELOW, NEITHER PARTY MAKES IN THIS AGREEMENT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You shall defend Us against any claim, demand, suit, or proceeding (“Claim”) made or brought against Us by a third party alleging that Your Data, or applications or other materials developed by You using the IDE-Services, infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation do not arise from the IDE-Services), and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense. The foregoing states Your sole liability and Our exclusive remedy for any type of Claim described in this Section.
- LIMITATION OF LIABILITY
9.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF$500 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User Subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2. Term of Basic IDE-Service User Subscriptions. User Subscriptions for Basic IDE-Services commence on the date you accept this Agreement and continue until terminated by either party in accordance with Section 10.3 (Termination of Basic IDE-Service User Subscriptions).
10.3. Termination. You may terminate Basic IDE-Service User Subscriptions without cause at any time upon written notice to Us. We may terminate Basic IDE-Service User Subscriptions (i) at any time without cause upon 10 days written notice to You, (ii) upon notice to You if Your Basic IDE-Services have not been accessed by a User for 3 months or longer, or (iii) upon 2 days written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Notwithstanding the above, to the extent any Basic IDE-Service User Subscriptions are required to use Supplemental Developer Service User Subscriptions, the parties rights to terminate such Basic IDE-Service User Subscriptions will be governed by Section 11.7(b) (Termination of Agreement for Cause) instead of this Section.
10.4. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a IDE-Services subscription, We will make available to You for download a file of Your Data in plain text or comma separated value (.csv) format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
10.5. Loss of Applications and Materials. UPON ANY TERMINATION OF THIS AGREEMENT, ALL APPLICATIONS AND OTHER MATERIALS DEVELOPED BY YOU USING THE IDE-SERVICES AND HOSTED ON OUR PLATFORM WILL BE PERMANENTLY LOST.
10.6. Surviving Provisions. Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Return of Your Data), 11.4 (Confidentiality of Supplemental Developer Services Terms and Pricing), 11.5 (Warranties Regarding Supplemental IDE-Services), 11.6 (Indemnification by Us for Supplemental IDE-Services), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
- ADDITIONAL TERMS APPLICABLE TO SUPPLEMENTAL DEVELOPER SERVICES
11.1. Terms Limited to Supplemental Developer Services. The provisions in this Section 11 (Terms Applicable to Supplemental Developer Services) apply only to Supplemental Developer Services ordered hereunder, and are in addition to the other provisions in this Agreement.
11.2. Supplemental Developer Services.
- Provision of Supplemental Developer Services. We shall make the Supplemental Developer Services available to You pursuant to this Agreement and the relevant Order Forms (online or offline) during a subscription term. You agree that Your purchases of Supplemental Developer Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
- User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Supplemental Developer Services may be accessed by no more than the specified number of Users, (ii) additional User Subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing subscriptions.
11.3. Fees and Payment for Supplemental Developer Services.
- User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) the number of User Subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User Subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
- Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all IDE-Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.7a (Term of Supplemental Developer Service User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 10 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Us.
- Overdue Charges. If any charges are not received from You by the due date (except charges then under reasonable and good faith dispute), then at Our discretion, (a) such charges may accrue late interest at the rate of 4.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 11.5 (Invoicing and Payment).
- Charges 20 or More Days Overdue. If any charge owing by You under this or any other agreement for IDE-Services is 20 or more days overdue (except charges then under reasonable and good faith dispute), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend IDE-Services until such amounts are paid in full.
- Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
11.4. Confidentiality of Supplemental Developer Services Terms and Pricing. In addition to the terms of Section 6 (Confidentiality) above, the terms and pricing under any Order Forms (online or offline) for Supplemental Developer Services shall be considered Our Confidential Information.
11.5. Warranties Regarding Supplemental Developer Services.
- Supplemental Developer Services. We warrant that (i) the Supplemental Developer Services shall perform materially in accordance with the User Guide, and (ii) subject to Section 3.3 (IDE-Service Features that Integrate with Third-Party Services), the functionality of the Supplemental Developer Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Sections 11.7.b (Termination for Cause) and 11.7.c (Refund or Payment upon Termination) below.
- Malicious Code. Each party represents and warrants that it will not transmit to the other party any Malicious Code; provided, however, We will not be deemed to breach this warranty to the extent You or a User upload into the IDE-Services a file containing Malicious Code and later download that file.
11.6. Indemnification by Us for Supplemental Developer Services. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the Supplemental Developer Services, used as permitted hereunder, infringe or misappropriate the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance. In the event of a Claim or if We believe the Supplemental Developer Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Supplemental Developer Services so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Supplemental Developer Services in accordance with this Agreement, or (iii) terminate Your Supplemental Developer Service User Subscriptions and refund You any prepaid fees covering the remainder of the term of such User Subscriptions after the effective date of termination. The foregoing states Our sole liability and Your exclusive remedy for any type of Claim described in this paragraph.
11.7. Term and Termination.
- Term of Supplemental Developer Service User Subscriptions. Supplemental Developer Service User Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Supplemental Developer Service User Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 25% over the pricing for the relevant Supplemental Developer Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
- Termination of Agreement for Cause. A party may terminate this Agreement for cause upon 20 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
- Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees, minus a processing fee of $80, covering the remainder of the term of all Supplemental Developer Service User Subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- MARVELCODER.NET SITES
12.1. MarvelCoder.net Sites. The terms below apply to MarvelCoder.net Sites components of the IDE-Services, when or if such component becomes available.
12.2. Usage Limits and Disabling of MarvelCoder.net Sites. The MarvelCoder.net Sites service is subject to limits as detailed in the user guide information accessible through the Support link. Those limits include (but are not limited to) those below:
Edition: Developer Edition
Maximum Number of MarvelCoder.net Sites per Domain: 1 (one)
Included Number of Monthly Page Views per Organization: As permitted by bandwidth and service requests and service request time limits.
Bandwidth Limit per 24 Hour Period: 50 MB
Service Request Time Limit per 24 Hour Period: 5 minutes
- Included Monthly Page Views. The MarvelCoder.net Sites Service includes a number of page views per calendar month as specified above. The number of page views is calculated as the aggregate number of page views for all
MarvelCoder.net Sites in Your Organization, including pages served from the MarvelCoder.net Sites origin servers. Calendar months are measured in accordance with Greenwich Mean Time (GMT). Organization means a unique instance of the Developer Edition service, [i.e., a separate set of Your Data and Your service customizations held by Us in a logically separated database (i.e., a database segregated through password-controlled access)].
- Disabling of MarvelCoder.net Sites Due to Excess Monthly Page Views. As used in this paragraph, Monthly Page View Limit means the included number of page views plus any additional page views You have purchased for a given month. If Your Organization reaches 110% of its Monthly Page View Limit in a single calendar month, We will so notify You via email. If Your Organization reaches 110% of its Monthly Page View Limit in three consecutive calendar months, or reaches 300% of its Monthly Page View Limit in a single calendar month, Your MarvelCoder.net Sites will be disabled until the beginning of the next calendar month, and We will so notify You via email.
- Bandwidth Limits. Bandwidth is calculated as the number of bytes served and received from all MarvelCoder.net Sites in Your Organization, including from the MarvelCoder.net Sites origin servers. Bandwidth limits are applied in rolling 24-hour periods. If Your Organization exceeds a bandwidth of 100MB in a 24-hour period, Your MarvelCoder.net Sites may be disabled.
- Service Request Time Limits. Service request time is calculated as the total origin server time required to generate pages or process requests for all MarvelCoder.net Sites in Your Organization. Service request time limits are applied in rolling 24-hour periods. If Your Organization exceeds a service request time of 5 minutes in a 24-hour period, Your MarvelCoder.net Sites may be disabled.
12.3. Risk of Unintended Access to Your Data. The MarvelCoder.net Sites service enables You to provide public access to Your data stored in Our online services. It is very important that You carefully follow the instructions in the user guide, use industry best practices for security and review MarvelCoder.net Sites settings (including but not limited to settings for sharing of objects, data or sharing access and visibility of app views) before publishing a MarvelCoder.net Site or enabling web services or remote procedure calls (RPCs) for a MarvelCoder.net Site. If You publish a MarvelCoder.net Site or enable web services/RPCs for a MarvelCoder.net Site with settings that You did not intend, You could cause Your confidential information stored in Our online services to be disclosed to unintended third parties or to the public.
12.4. Your Responsibilities. You shall not: (a) offer, permit or promote gambling on a MarvelCoder.net Site or as part of a MarvelCoder.net Site URL; (b) display, transmit or otherwise make available on a MarvelCoder.net Site or as part of a MarvelCoder.net Site URL material that is pornographic, obscene, lewd, indecent, or vulgar; (c) display, transmit or otherwise make available on a MarvelCoder.net Site or as part of MarvelCoder.net Site URL material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of anothers privacy or violative of third party privacy rights; or (d) display or transmit on a MarvelCoder.net Site or as part of MarvelCoder.net Site URL material promoting or providing instructional information about illegal activities, promoting physical harm or injury against any group or individual, or promoting any act of cruelty to animals, including, but is not limited to, instructions on how to assemble bombs, grenades, and other weapons, and “Crush” sites. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content and data submitted to or published via the MarvelCoder.net Sites Service by You, by Users, or by users of websites created by You using the MarvelCoder.net Sites Service; (ii) comply with all applicable laws (including but not limited to export laws) in using the MarvelCoder.net Sites Service; and (iii) use the MarvelCoder.net Sites Service solely in accordance with its online user guide.
12.5. Subdomain Names.
- Creation of Subdomains. Subject to availability of this service from Us, the MarvelCoder.net Sites service enables You to create Your own MarvelCoder.net subdomain.
- Rejection of Subdomains Before Publication. We may in Our sole discretion reject any MarvelCoder.net subdomain proposed by You before We publish it as part of a URL or associate a MarvelCoder.net Site with it.
- Disabling of Subdomains After Publication. If, after You have submitted a MarvelCoder.net subdomain and we have published it or associated it with a MarvelCoder.net Site, We determine in Our sole discretion that it violates these Terms or the our Subscription Agreement, or if We receive a notice or claim alleging that any such subdomain violates or infringes any law or third-party right, We may disable the associated URL and MarvelCoder.net Sites and make reactivation of those MarvelCoder.net Sites conditional on Your submitting a new subdomain acceptable to Us.
12.6. Disabling of MarvelCoder.net Sites under U.S. Digital Millennium Copyright Act. If We receive a notice alleging that material on Your MarvelCoder.net Site infringes another party’s copyright, we may disable that MarvelCoder.net Site in accordance with Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act).
- WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
- If you are domiciled in Canada, you are contracting with Cayenne Consulting Company. Notices should be addressed to Manager of Canadian Sales at Fax: +1-866-764-7445. Governing law is British Columbia and Canadian law. Courts having exclusive jurisdiction are Vancouver, BC Canada
- If you are domiciled in the United States or anywhere else, other than Canada, you are contracting with Marvel Software LLC. Notices should be addressed to Manager of Worldwide Sales at Fax: +1-866-764-7445. Governing law is Washington State and United States law. Courts having exclusive jurisdiction are Bellingham, WA USA
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- GENERAL PROVISIONS
14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this 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 of this Agreement shall remain in effect.
14.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)
14.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.