MerlinFX Hosted Service Level Agreement
This Agreement is between MerlinFX Pty Ltd, ("Provider") whose principal place of business is Doherty Partners Business Centre, Level 1, 259 Northumberland St, Liverpool NSW 2170, Australia
and you, (The Customer).
This Agreement gives each party certain rights and responsibilities. Please read this Agreement carefully.
1. Definitions
Agreement - the terms and conditions in this Hosted Service Level Agreement and the terms and conditions posted on the MerlinFX website as may be updated from time to time;
Hosted Service - Provider's hosted service provided to Customer and consisting of software license, single knowledgebase (database architecture), and user documentation, all of which are proprietary to Provider;
Hosted Server - the server on which the Hosted Service and is located;
Proprietary Information - the proprietary data of Provider that is made available as part of the Hosted Service;
Customer Data - all data created or submitted by Customer and/or Customer's Users and held in Customer's Admin (MFX Control);
Staff User - any person who has express or implied authorisation from Customer to access the Service through the staff interface (MFX Control);
Client User - any person who has express or implied authorisation from Customer to access the Service, through the end user interface (website);
KB - the knowledgebase and associated data, tables, and login pages that are created for customer's use as part of the Hosted Service.
Subscription Period – refers to the minimum subscription period of 12 to 24 months, depending on the solution provided. See 16. Payment Models for more information. This does not apply to the Magic Hat solutions.
Social Media & Third Party Services – refers to third party web services set up on behalf of the client to enhance the clients’ website and/or communication strategy and/or any service that monitors and/or analyses or integrates with the web service. See 17. Social Media & Third Party Services.
Attachment A - the initial quotation to this agreement which describes the payment and fees for the service to which Customer is subscribing;
2. License Grant and Use Restrictions
Subject to the terms and conditions of this Agreement, Provider grants Customer and each user a limited, non-exclusive, non-sub licensable, non-transferable license to use and to electronically access the proprietary software that is a part of the Hosted Service, only in conjunction with the Hosted Service and in accordance with this Agreement and any specific additional agreement, which we may require you to accept prior to granting access to specific portions of the Hosted Service. Customer is prohibited from and shall not condone or assist any User in modifying, translating, decompiling, disassembling or reverse engineering or otherwise attempting to determine the source code for the operation of the Hosted Service, or creating derivative works based on the Hosted Service or any part of the Hosted Service or Proprietary Information. For purposes of this Agreement, "reverse engineering" shall mean the examination or analysis of the Hosted Service or Proprietary Information to determine its source code, sequence, structure, organisation, internal design, algorithms or encryption devices, and, "Proprietary Information" shall mean all data, material, text, photographs, music, video, software, sound, graphics, other Information or materials or portions thereof.
In no event shall Customer use the Hosted Service or Proprietary Information to provide services similar to the Hosted Service in competition with Provider. In order to protect Provider's confidential information and trade secrets, Customer shall not develop, provide, sell, rent, or resell any product or service which competes with the Hosted Service, or create or implement any such product or service for the purpose of competing with the Hosted Service provided hereunder while this Agreement is in effect and for a period of one (1) year following termination of this Agreement.
The number of staff users and end users who may access the Hosted Service under individual logins is specified in Attachment A.
3. Internet Access
In order to access and use the Hosted Service, Customer must obtain access to the Internet, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, Customer must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.
4. Ownership and Storage Size of Data and Custom Scripts
All data created by Customer or Customer's Users in Customer's KB is fully owned by Customer. Customer may export all or part of its data at any time to store it locally or create backup copies. A Customer's data may reach a maximum storage size depending on their subscription level. Typical customer KBs with thousands of records are around 100MB in size. The size limit could potentially be reached if numerous large files (bmp files, other graphic files, etc.) are uploaded to the server. If Customer requires additional storage space, it will be provided at additional cost. A cost schedule for such additional storage is included with the document or separately, if requested.
If Customer wishes to add custom programming scripts or custom components approved or developed by the Provider or integrate with 3rd party API’s to its KB or Hosted Service, such scripts, components, API’s must be approved by Provider as non-damaging to the Hosted system prior to uploading or integrating. Customer is fully responsible for any scripts or API that Provider has not written, and troubleshooting, revising, and testing Customer-written scripts or API’s is not included in the standard hosted service support contract. Any custom script writing, testing, or troubleshooting will be done by Provider at Customer's request at Provider's normal hourly consulting rate.
5. Customer Conduct
A. Customer is responsible for all activity relating to or arising from its KB.
B. Customer agrees not to knowingly use the Hosted Service or any facilities provided to the Customer in connection with the Hosted Service to:
1. Upload, store, post, e-mail or otherwise transmit, distribute, publish or disseminate any Information that (or the transmission, distribution, publication or dissemination of which):
(a) Is unlawful; harmful; threatening; abusive; harassing; tortious; defamatory; vulgar; obscene; or, libellous or promotes such activity;
(b) Infringes any proprietary rights of any party or otherwise violates the legal rights (such as rights of privacy and publicity) of others;
(c) Violates any contractual or fiduciary relationships;
(d) Contains: software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or circumvent any "copy-protect" devices; or, any other harmful or disruptive program.
2. Provide materially misleading Company Information; create a false identity or manipulate identifiers to mislead others or to disguise the origin of any Information stored in the KB or transmitted through the Hosted Service; impersonate any person or entity; or, otherwise deliberately misrepresent any affiliation with a person or entity;
3. Attempt to gain unauthorised access to other Customers' KBs located on the Hosted Server, to other Customers' Account Information, or other computer systems, servers or networks connected to the Hosted Services or any portion thereof; or
4. Violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation.
5. Use Provider's or 's name, the Hosted Service, or any portion of either to (a) promote any business, product or service, through the sending of unsolicited e-mail or SMS; or, (b) send the same or substantially similar unsolicited e-mail message, whether commercial or not, to a large number of recipients (collectively, "Spam"); or, (c) harass others by sending more than ten (10) similar messages to the same e-mail address or more than 10MB of data to a newsgroup ("Bombing"); or, (d) use the mail server to generate any of the foregoing.
We will determine, acting reasonably, whether any of the messages you send violate this Agreement. We may remove the offending KB or deactivate your account - without the time periods required under the "Termination" section hereof - and immediately terminate your rights if we become aware of any violation of this Anti-Spam Policy by you or your Users. We reserve the right to take legal and technical action to prevent use of e-mail in violation of this Agreement.
6. Cancellations and Termination
The Agreement shall continue in effect with automatic renewal and billing for the same term as the term specified in the latest version of Attachment A, unless:
(a) Terminated by either party with or without cause, with 30 days notice;
(b) Terminated by Provider, if Customer has breached any material term of this Agreement;
(c) Terminated by Provider if Customer fails to pay any amount due hereunder within 60 days of invoice receipt or violates any of the restrictions set forth in Sections 2, 4, 5, 7, 11, or 12 hereof with respect to the use of the Hosted Service or the disclosure of Proprietary Information;
(d) Provider discontinues the Service for any reason, with 30-day notice;
(e) Provider breaches any material term of this Agreement;
Termination notification by Customer must be in writing and delivered by hand, or by mail, return receipt requested, to MerlinFX Pty Ltd, Level 1, Northumberland Street, Liverpool NSW 2170, Australia. Sections 2, 5, 6, 7, 9, 10, 11, and 12 shall survive any termination or expiration of this Agreement.
Termination by Provider under provisions (b) or (c) will be immediate.
In the event of Service termination the remaining term within the minimum subscription period becomes immediately payable. See 16. Payment Models.
7. Fees and Payment Requirements
Customer agrees to pay the fees stated in the current or any renewal Attachment A within 7 days of receipt of invoice or immediately if payment is made by credit card or direct debit. All invoices which are not paid in full within 30 days of receipt will incur a late charge of 1.5% per month (18% annum). Failure to pay invoices within 60 days may result in immediate termination of service under section 6 c above. If Customer defaults on payment, Customer agrees to pay Provider for all collection expenses, including attorney and collection agency fees.
8. Pricing Policy
Any future price increases for service will be documented in a new subscription plan document and will never apply to any billing period that has been prepaid.
The Provider reserves the right to adjust prices yearly at 2 percentage points above the ‘All Groups CPI Index’.
9. Limited Warranty
(a) Provider warrants that it has the right to license Customer to use the Hosted Service and Proprietary Information.
(b) THE SERVICE AND APPLICABLE USE INSTRUCTIONS ARE PROVIDED TO CUSTOMER "AS IS" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE PRODUCT, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
10. Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PROVIDER'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR 1 (ONE) MONTHS OF THE HOSTED SERVICE OR AUD.$15.00; BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. Protection of Confidential or Proprietary Software and Information
Customer acknowledges that the Hosted Service made available to Customer by Provider constitutes copyrighted or proprietary property of substantial value to Provider. Customer agrees to take reasonable security measures to prevent the unauthorised duplication, distribution, or use of the software and Proprietary Information, and in no event shall such measures be less than Customer uses to protect its own proprietary information. In addition, Customer agrees to honour and comply with reasonable requests submitted by Provider in order to protect their respective rights in the Hosted Service.
12. Indemnification by Customer
Customer shall indemnify and defend Provider and hold it harmless from and against any loss, damage, or expense, including reasonable attorneys' fees, arising out of (i) claims by third parties relating to Proprietary Information or analysis provided to third parties by Customer from Customer's use of the Hosted Service (unless such use is due to Provider's gross negligence and/or wilful misconduct), or (ii) unauthorised use of the Hosted Service by Customer as described in Section 2 and 5 and/or non-adherence to Customer's obligations as described in Section 5 and 12.
13. Obligations of Provider
Provider will host Customer's KB on a shared server located in world class data centres that includes: Raised Floors, Environment Control, Uninterruptible Power Supplies, Backup Power, VESDA (Very Early Smoke Detection Apparatus), FM-200 Fire Suppression, Security System, RAID Storage, Automated Backup, Off-site Data Storage. Provider may choose to relocate the Hosted Server at some later date. If such relocation becomes necessary, Customer will be notified at least 30 days in advance, and will have the right to cancel service or choose from all locations currently used for Provider Hosted Servers.
Provider will regularly install upgrades of to the Hosted Servers as soon as they become generally available at no charge to the Customer, (doesn’t apply to the ‘no upgrade subscription’) so that Customer receives the benefit of all enhancements and improvements to the product. Provider will notify Customer by email and/or via their admin MFX Control of any upgrades that affect the program functionality.
Depending on the cost of the upgrade and whether the client is on a prodigy subscription plan, the upgrades may be charged to that client. Customers will be notified by email of a planned upgrade and all its features and provided the opportunity to accept or reject the upgrade. If the customer does not require the upgrade then no change to the service will occur and therefore no charge.
Provider guarantees 99.5% uptime of the Hosted Server, except during maintenance and upgrades, which will be performed, when necessary, between 9pm and 4am on weekends. In any month that uptime outside these maintenance periods is less than 99.5%, Customer may request a credit for the time (calculated to the nearest hour) that their service was not operating. Repetitive failure to achieve the above server uptime shall be deemed a material breach for which Customer may terminate this Agreement with no penalty or liability.
Provider will perform regular nightly backups of Customer data.
Customers are given full access to the MerlinFX Knowledgebase, free video tutorials, application update news via MyMFX located on the MerlinFX website; accessible by login only.
The web components, Add-ons, tools etc that are integrated into the manage CMS, for example, but not limited to: news, testimonials, FAQs, any kind of web form including contact us page, online store, e-newsletters, web statistics and analytics, keyword control, photo gallery, video gallery, banner management, search function, social media functions etc are provided on an ‘as is’ basis. Where possible these tools will match the site layout in font, size and colour; however custom changes may / may not be available and will be decided at the discretion of MerlinFX whether the change is warranted or required.
14. Customer Support
Provider shall provide product support to Customer consistent with its standard support contract, which is described at http://www.merlinfx.com.au/support.aspx. Provider will respond to Customer's telephone inquiries regarding the Hosted Service during the normal business hours of the support contract. (note: hours may vary in countries outside Australia, where Provider or its authorised designee may provide local telephone support).
Customer will be provided with a login and password to Provider's support knowledgebase or to MFX Control and may submit questions and search for answers at the Provider website 24 hours a day, 7 days a week. Customer will be notified via email when resolution is made.
Should Customer require a higher level of service, the Premium Service Contract may be purchased at additional cost. A custom premium service contract is tailored to the clients’ requirements.
15. General
(a) Customer may assign the Agreement only with the written consent of Provider.
(b) Notices shall be deemed given on the date delivered, if delivered by hand, and 3 days after the date of mailing, if mailed. Notices shall be given to MerlinFX Pty Ltd, Doherty Partners Business Centre, Level 1, Suite 4, 259 Northumberland Street, Liverpool NSW 2170, Australia. Attention: Services, and to Customer at the address stated below.
(c) This Agreement, terms and conditions on the MerlinFX website, and all Attachment As, when executed, shall comprise the exclusive statement of Agreement between Customer and Provider, and shall supersede all preceding agreements and proposals, whether oral or written.
(d) Neither Provider nor its suppliers shall be responsible for delays or performance failures caused from acts beyond their reasonable control.
(e) The Agreement, all intellectual property issues, and rights and obligations shall be governed by the laws of the Australia governing contracts wholly entered into and which are intended to be wholly performed within New South Wales, and shall be subject to the exclusive jurisdiction of the courts located in New South Wales.
(f) Terms and conditions of the Agreement are severable. If any provision is deemed illegal or unenforceable, all other provisions shall remain in effect.
(g) The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(h) Terms and conditions of the Agreement herein shall prevail in any conflict with terms of Customer's purchase order.
16. Payment Models
MerlinFX provides several payment price points that cover upfront fees for the development of web solutions as well as ongoing fees that cover: web hosting, licensing, maintenance, support, training, and our upgrades.
Depending on the solution provided, upfront fees and monthly subscriptions vary:
Custom Solution 1 - Professional website
Full upgrades subscription but on a Deferred payment plan for a minimum of 2 years. After the 2 year period has expired, the monthly subscription reverts to the Custom Solution 2 monthly price where upgrades are included. However if the client Opts for a website re-design, then the original monthly amount remains for a further 12-24 months with the redesign charged at no cost. The minimum term from this period on is determined on the complexity of the re-design or scope of features included.
Includes full support, upgrades and social media integration.
You will receive a premium website service that includes the development and launch of your new website; plus a content management system. The monthly subscription covers all MerlinFX upgrades to our web applications, the site, core platform, monitoring, add-ons and third-party services; plus the convenience of a deferred payment plan that requires less upfront funding.
Custom Solution 2 - Standard website
Full subscription offering full support, upgrades and social media integration.
You will receive a premium website service that includes the development and launch of your new website; plus a content management system. The monthly subscription covers all MerlinFX upgrades to our web applications, the site, core platform, monitoring, add-ons and third-party services.
Custom Solution 3 - Standard website
No upgrades
Standard support subscription and social media integration.
You will receive a premium website service that includes the development and launch of your new website; plus a content management system. The monthly subscription covers all site maintenance, core platform, add-ons, monitoring and third-party services.
Magic Hat – Pre Designed solutions
No minimum subscription term.
Magic Canvas – Pre Designed solutions
No minimum subscription term.
MerlinFX eCommerce, Social Media or eNewsletter solutions.
No minimum subscription term.
However; a termination period of 60 days is required.
17. Social Media & Third Party Services
MerlinFX uses third party services some free, some paid to monitor, analyse, integrate with social media platforms etc to enhance security, uptime, maintenance, website analytics/statistics and more.
Customer shall indemnify and defend Provider and hold it harmless from and against any loss, damage, or expense, including reasonable attorneys' fees, arising out of (i) claims or damage caused by a third party service or (ii) social media platforms that may be integrated or monitor their website. Often Social Media platforms change their policies and /or how their platforms integrate with the internet and websites. This is beyond our control.