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CUSTOMER AGREEMENT Terms and Conditions

These Customer Agreement Terms and Conditions (these “Terms and Conditions”) are between Equafin Corp. with a place of business at 66 Franklin St Suite 300, Oakland, CA 94607 ("Marvin") and the counterparty identified as the customer in the applicable Order ("Customer"). These Terms and Conditions together with all Orders (as defined below) constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order on behalf of your employer or another entity (which will be deemed the case if you sign up for the Marvin Product using an email address from your employer or such entity) then you represent and warrant that (a) you have read and understand this Agreement (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity; and references to “Customer” under this Agreement will be such employer or other entity.

Background

Marvin has developed and makes available a SaaS-based research platform that helps companies conduct, organize, and analyze user research and user research participants (the "Marvin Product"). Customer desires to use the Marvin Product to augment its existing user research capabilities.

1. Definitions

1.1 The following terms when used in this Agreement will have the following meanings:

  • "Affiliates" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.
  • "Confidential Information" means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary, or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party without restriction prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party without restriction by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
  • "Documentation" means the printed and digital instructions, online help files, technical documentation, and user manuals made available by Marvin for the Marvin Product.
  • “Effective Date” means the date of the initial Order entered into between Customer and Marvin.
  • "Non-Marvin Product" means a third-party or Customer web-based, mobile, offline, or other software application that integrates with the Marvin Product (other than third-party data hosting services used by Marvin). For clarity, the Marvin Product excludes Non-Marvin Products.
  • "Order" means an ordering document, invoice, order form, quote, or other similar document entered into between Customer and Marvin or online ordering flow completed by Customer, that sets forth the specific Marvin Product and pricing therefor (including in relation to overages), permitted number of users, permitted usage volume, and/or subscription term, and that references these Terms and Conditions.

2. Marvin Product

2.1 Provision of Marvin Product

Subject to the terms and conditions of this Agreement, Marvin will make the Marvin Product available to Customer pursuant to this Agreement, the Service Level Agreement attached in Exhibit A, and the applicable Order, and hereby grants Customer a non-exclusive right to access and use the Marvin Product for its internal business purposes.

2.2 Data Security

(a) Marvin will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Marvin Product ("Customer Data"); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Marvin will maintain the administrative, physical, and technical safeguards to protect the security of Customer Data that are described in the Marvin security page located at https://heymarvin.com/security/security-policies (the "Security Page") posted as of the Effective Date (and as the Security Page may be updated by Marvin in a manner that does not materially decrease the applicable protections).

(b) To the extent that Marvin processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA) on Customer's behalf in the provision of the Marvin Product, the parties will execute a Data Processing Addendum ("DPA").

2.3 Customer Responsibilities

(a) Customer acknowledges that Marvin's provision of the Marvin Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer's applications, software, systems, personnel, cooperation, and materials as reasonably required, and any other access as may be specified in the applicable Order) and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) be responsible for all use of the Marvin Product under its account; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Marvin Product, and notify Marvin promptly of any such unauthorized access or use, or any other known or suspected breach of security or misuse of the Marvin Product; and (iii) be responsible for obtaining and maintaining any equipment, software, and ancillary services needed to connect to, access, or otherwise use the Marvin Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software, and services, and Marvin will have no liability for such failure (including under any service level agreement).

(c ) Customer will not use the Marvin Product to transmit or provide to Marvin any financial information of any nature or any sensitive personal data (e.g., social security numbers, driver's license numbers, birth dates, personal bank account numbers, passport or visa numbers, and credit card numbers).

(d) Customer shall be responsible for the content of all communications sent by its users via the Marvin Product. Customer agrees that it will not use the Marvin Product to communicate any message or material that (i) is libellous, harmful to minors, obscene, or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.

2.4 Affiliates

Any Affiliate of Customer will have the right to enter into an Agreement executed by such Affiliate and Marvin. Each Agreement is a separate obligation of the Customer entity that executes such Agreement, and no other Customer entity has any liability or obligation under such Agreement.

3. Fees

3.1 Fees

Customer will pay Marvin the fees set forth in the applicable Order. Customer shall pay those amounts due on receipt and not disputed in good faith, unless a specific date for payment is set forth in such Order, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicable Order, (a) fees are quoted and payable in United States dollars, and (b) payment obligations are non-cancelable and non-proratable for partial months, and fees paid are non-refundable.

3.2 Late Payment

Marvin may suspend access to the Marvin Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

3.3 Taxes

All amounts payable hereunder are exclusive of any sales, use, and other taxes or duties, however designated (collectively, "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Marvin. Customer will not withhold any Taxes from any amounts due to Marvin.

4. Proprietary Rights

4.1 Proprietary Rights

As between the parties, Marvin exclusively owns all right, title, and interest in and to the Marvin Product, System Data, and Marvin's Confidential Information, and Customer exclusively owns all right, title, and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Marvin Product by Customer (which will constitute Customer Data for purposes hereof), and Customer's Confidential Information. "System Data" means data collected by Marvin regarding the Marvin Product that may be used to generate logs, statistics, or reports regarding the performance, availability, usage, integrity, or security of the Marvin Product.

4.2 Feedback

Customer may from time to time provide Marvin suggestions or comments for enhancements or improvements, new features or functionality, or other feedback ("Feedback") with respect to the Marvin Product. Marvin will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features, or functionality. Marvin will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate, and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4.3 Machine Learning

Customer acknowledges that a fundamental component of the Marvin Product is the use of machine learning for the purpose of providing, maintaining, developing, and improving Marvin’s products and services. Notwithstanding anything herein, Customer agrees that Marvin is hereby granted the right to retain and use (during and after the term hereof) Customer Data to train its algorithms internally through machine learning techniques for such purpose. Customer may opt out of such use on a going-forward basis by providing written notice to Marvin of such opt out as set forth in Section 10.7, and such opt out will be effective within five (5) business days after Marvin’s receipt of such notice.

5. Confidentiality; Restrictions

5.1 Confidentiality

Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same, directly or indirectly, to any third party without the other party's prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party except that either party may confidentially disclose such terms to actual or potential lenders, investors, or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

5.2 Technology Restrictions

Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of, or otherwise create, attempt to create, or derive, or permit or assist any third party to create or derive, the source code underlying the Marvin Product; (b) attempt to probe, scan, or test the vulnerability of the Marvin Product, breach the security or authentication measures of the Marvin Product without proper authorization, or wilfully render any part of the Marvin Product unusable; (c) use or access the Marvin Product to develop a product or service that is competitive with Marvin's products or Product, or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Marvin Product, or otherwise offer the Marvin Product on a standalone basis; or (e) otherwise use the Marvin Product in violation of applicable law (including any export law), or outside the scope expressly permitted hereunder and in the applicable Order (clauses (a) through (e) the “License Restrictions”).

6. Warranties and Disclaimers

6.1 Marvin

Marvin warrants that it will, consistent with prevailing industry standards, provide the Marvin Product in a professional and workmanlike manner, and the Marvin Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer's exclusive remedy shall be the re-performance of the deficient Marvin Product or, if Marvin cannot re-perform such deficient Marvin Product as warranted, within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.

6.2 Customer

Customer warrants that it has all rights necessary to provide any information, data, or other materials that it provides hereunder and to permit Marvin to use the same as contemplated hereunder.

6.3 DISCLAIMERS

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE MARVIN PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER'S USER RESEARCH PROCESSES. MARVIN DOES NOT REPRESENT OR WARRANT THAT THE MARVIN PRODUCT WILL BE ERROR-FREE, AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE MARVIN PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. MARVIN IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-MARVIN PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

6.4 BETA PRODUCTS

FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH MARVIN WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES, OR DOCUMENTATION (COLLECTIVELY, "BETA PRODUCTS") OFFERED BY MARVIN. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED "AS IS". MARVIN DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION THERETO. CUSTOMER OR MARVIN MAY TERMINATE CUSTOMER'S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

7. Indemnification

7.1 Indemnity by Marvin

Marvin will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Marvin Product as permitted hereunder infringes or misappropriates a United States patent, copyright, or trade secret, and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Marvin) in connection with any such Claim; provided that (a) Customer will promptly notify Marvin of such Claim, (b) Marvin will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Marvin may not settle any Claim without Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability), and (c) Customer reasonably cooperates with Marvin in connection therewith. If the use of the Marvin Product by Customer has become, or in Marvin's opinion is likely to become, the subject of any claim of infringement, Marvin may at its option and expense (i) procure for Customer the right to continue using and receiving the Marvin Product as set forth hereunder; (ii) replace or modify the Marvin Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order and provide a pro-rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Marvin will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans, or specifications provided by Customer; (B) use of the Marvin Product by Customer not in accordance with this Agreement; (C) modification of the Marvin Product by or on behalf of Customer; (D) Customer Confidential Information; or (E) the combination, operation, or use of the Marvin Product with other products or services where the Marvin Product would not by itself be infringing (clauses (A) through (E) "Excluded Claims"). This Section states Marvin's sole and exclusive liability and obligation, and Customer's exclusive remedy for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer

Customer will defend Marvin against any Claim made or brought against Marvin by a third party arising out of any Excluded Claims, and Customer will indemnify Marvin for any damages finally awarded against Marvin (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Marvin will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Marvin's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Marvin of all liability), and (c) Marvin reasonably cooperates with Customer in connection therewith.

8. Limitation of Liability

EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5, OR A PARTY'S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER'S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9. Termination

9.1 Term

The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order will begin on the start date indicated in such Order and will continue for the subscription term set forth therein. Except as set forth in such Order, the term of such Order will automatically renew for successive renewal terms equal to the length of the initial term of such Order unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

9.2 Termination

Each party may terminate this Agreement upon written notice to the other party if there are no Orders then in effect. Each party may also terminate this Agreement or the applicable Order upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order and fails to remedy such breach within thirty (30) days after written notice of such breach; or (b) subject to applicable law, upon the other party's liquidation, commencement of dissolution proceedings, assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.3 Survival

Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability, and termination, and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party's option, any Confidential Information of such party in the other party's possession or control.

9.4 Customer Data Retrieval

Upon Customer's written request made on or prior to expiration or termination of the applicable Order, Marvin will give Customer limited access to the Marvin Product for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such retrieval period and Marvin's legal obligations, Marvin has no obligation to maintain or provide any Customer Data and will, unless legally prohibited, delete Customer Data after such expiration or termination; provided, however, that Marvin will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases, Marvin will continue to protect the Customer Data in accordance with this Agreement. For clarity, during the term of the applicable Order, Customer may extract Customer Data using Marvin's standard web services as described in the Documentation.

10. General

10.1 Customer Marks

Customer agrees that Marvin may refer to Customer’s name and trademarks in Marvin’s marketing materials and website; however, Marvin will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references, and case studies) without Customer’s prior written consent (which may be by email). Customer may opt out of such use on a going-forward basis by providing written notice to Marvin of such opt-out as set forth in Section 10.7, and such opt-out will be effective within five (5) business days after Marvin’s receipt of such notice.

10.2 Assignment; Delegation

Neither party hereto may assign or otherwise transfer this Agreement in whole or in part, without the other party's prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.3 Amendment; Waiver

Marvin reserves the right, in its sole discretion and at any time and for any reason, to modify these Terms and Conditions. With respect to each Order, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws or as necessary for new features), Marvin may specify that such modifications become effective during Customer’s then-current subscription term. If the effective date of such modifications is during Customer’s then-current subscription term, and Customer objects to the modifications, then (as Customer’s exclusive remedy) Customer may terminate the affected Order upon written notice to Marvin, and Marvin will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term. To exercise this right, Customer must provide Marvin with notice of its objection and termination within thirty (30) days of Marvin providing notice of the modifications. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.4 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.5 Unenforceability

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.6 Governing Law

This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.7 Notices

Any notice required or permitted to be given hereunder will be given in writing by email (to the extent permitted below), personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order, or email address provided by Customer when Customer creates its Marvin Product account. Notices to Marvin must be sent to the following:

Equafin Corp. 66 Franklin St. Suite 300 Oakland, CA 94607 Attn: Legal

10.8 Entire Agreement

This Agreement (consisting of these Terms and Conditions and each Order) comprises the entire agreement between Customer and Marvin with respect to its subject matter and supersedes all prior and contemporaneous proposals, statements, sales materials, or presentations, and agreements, oral and written. No oral or written information or advice given by Marvin, its agents, or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

10.9 Force Majeure

Neither Party will be deemed in breach hereunder for any cessation, interruption, or delay in the performance of its obligations due to causes beyond its reasonable control ("Force Majeure Event"), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment, or decree.

10.10 Government Terms

Marvin provides the Marvin Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Marvin Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited, and no rights other than those provided in this Agreement are conferred. The Marvin Product was developed fully at private expense.

10.11 Interpretation

For purposes hereof, "including" means "including without limitation."

By purchasing a subscription to the Marvin Product, Customer agrees to pay Marvin the annual subscription fees indicated for such Marvin Product in the Order. Payments will be due as of the first day Customer signs up for a subscription to a Marvin Product, and will cover the period as indicated in the Order when signing up (usually a period of 12 months).

Exhibit A

Service Level Agreement (SLA)

Exhibit A: Service Level Agreement (SLA)

Availability Commitment

The Marvin Product will be Available 99.5% of the time, measured on a calendar monthly basis (the "Availability Commitment"). "Availability" means that the Marvin Product is available to Customer's employees authorized to use the Marvin Product. Availability measures will not include downtime resulting from:

  • Upgrades: Customer will receive prior notice by email of Marvin's upgrade windows, which will be scheduled between 9 pm and 2 am Pacific Time, to the extent feasible. Downtime due to upgrades will not exceed 2 hours per month.

  • Pre-scheduled maintenance periods: Customer will receive at least 24 hours prior notification by email of pre-scheduled maintenance periods. Maintenance shall be scheduled between 9 pm and 2 am Pacific Time. Downtime due to pre-scheduled maintenance will not exceed 2 hours per month.

  • Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable efforts basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the Marvin infrastructure.

The Availability Commitment does not apply to any downtime of the Marvin Product that results from:

  • Account suspension or termination due to Customer's breach of the Agreement;
  • Disengagement of functionality of the Marvin Product due to Customer's request;
  • Force Majeure Events; or
  • Customer's or its service provider's equipment, software, or other technology.

Marvin will provide Customer with reports on Availability upon request.

Credit

If Marvin fails to achieve the above Availability for the Marvin Product, Customer may claim a credit based on a monthly pro-rated amount of the annual subscription fee as provided below.

PERCENTAGE AVAILABILITY PER MONTHCREDIT
99.5-100.0%0%
97.0-99.49%4%
94.0-96.99%6%
92.0-93.99%10%
Below 92.0%50%

Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations. To receive a credit, a Customer must file a claim for such credit within five (5) days following the end of the month in which the Availability Commitment was not met by contacting Marvin at [email protected] with a complete description of the downtime, how Customer was adversely affected, and for how long.

The credit remedy set forth in this Service Level Agreement is Customer's sole and exclusive remedy for the unavailability of the Marvin Product.

Customer Support

Marvin live technical support business hours will start at 8:00 am US Eastern Time and run until 4:00 pm US Eastern Time on weekdays. Technical support can be contacted via email at [email protected] or via shared channels in the customer communication platform.

Communication Channels:

Technical support will not be available on Christmas Day (December 25) and New Year's Day (January 1). Limited technical support will be available during the hours listed above during Marvin holidays. The current Marvin holidays are set forth below:

  • New Year's Day (January 1)
  • Dr. Martin Luther King Jr. Day (third Monday of January)
  • Presidents Day (third Monday of February)
  • Memorial Day (last Monday of May)
  • Independence Day (July 4)
  • Labor Day (first Monday of September)
  • Thanksgiving Day (fourth Thursday in November)
  • Black Friday (Day after Thanksgiving)
  • Christmas Eve (December 24)
  • New Year's Eve (December 31)

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