Mirabel Technologies, Inc./The Magazine Manager®/The Newspaper Manager™/The Marketing Manager™/Digital Studio®/Flip&Share™(“Magazine Manager/Newspaper Manager/Marketing Manager/Digital Studio/Flip&Share”) Terms of Service ("Terms of Service") are effective immediately upon the User’s first connection to any/all combinations of software platforms and services provided by Mirabel Technologies, Inc. (“Mirabel”).
1. Services Provided by Mirabel.
1.2 General Practices Regarding Use and Storage.
You acknowledge that Mirabel may establish or revise from time to time general practices and limits concerning your use of the Service, including without limitation, establishing the maximum amount of storage space you have on any Mirabel software platform at any time, as well as limiting the amount of bandwidth you may use with the Service in a given period of time. For purposes of this Section 1.2, bandwidth is defined as the total amount of data downloaded from and uploaded to any Mirabel software platform server in a given period of time. In addition, Mirabel may limit without notice the volume of e-mail forwarding or file downloading from your database in response to unreasonable activity (such as spamming or hosting a publicly accessible exchange of large data files). You agree that Mirabel has no responsibility or liability for the deletion, corruption, or alteration of, or failure to store any messages and other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, music, sound, photographs, graphics and video (collectively referred to as "Content") maintained or transmitted by the Service. You acknowledge that Mirabel reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service, other Service users, or third parties may provide links to other World Wide Web sites or resources. Because Mirabel has no control over such sites and resources, you acknowledge and agree that Mirabel is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Mirabel shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Mirabel will not disclose any of the client’s proprietary data to any third party without written consent from the client’s authorized agent.
1.5 Technical Support.
Mirabel agrees to make support available during the term of this agreement between the business hours of 8:30 AM and 7 PM EST Mon-Thu, 8:30 AM – 5 PM Friday. Mirabel makes no guarantee about technical support available during non-business hours. Technical support will not be provided to your entire organization. Technical support turnaround time may be up to twenty-four hours during business days, and seventy-two hours during weekends.
2. Your Responsibilities.
2.2 Acceptable Use Policy.
You agree to comply with Mirabel’s then-current Acceptable Use Policy as posted from time to time. By submitting any Content to Mirabel, you warrant that: (i) you are the owner of such Content, or have been granted all the rights necessary from the owner of such Content to submit such Content to Mirabel, and (ii) the use of such Content by Mirabel and its members will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.
2.3 No Resale, Etc. of the Service.
You agree not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. Such restrictions do not apply to the Content you place on the Service. You agree not to access the Service by any means other than through the interface that is provided by Mirabel for use in accessing the Service.
2.4 Outside Database Services
Should you elect to host your own database outside of Mirabel and its partner companies, you accept all liability for data management, backups, data integrity, data security, and any fees that should result there from.
3. Proprietary Rights.
3.1 Content Submitted to the Service.
You acknowledge that Mirabel does not pre-screen Content, but that Mirabel and its designees, contractors or subsidiaries shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Content that is available via the Service. Without limiting the foregoing, and without notice to you, Mirabel and its designees shall have the right to remove any Content that violates the Terms of Service or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
3.2 Mirabel Proprietary Rights.
You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and you agree not to disclose such information to any third party without Mirabel's prior permission. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, Service marks, patents or other proprietary rights and laws.
4. Registered Entities.
If you are a registered entity and permit your affiliates, subsidiaries, employees, and/or any third party located outside of the territorial boundaries of Canada, Japan, United Kingdom and/or United States to access and/or use the Service and/or your Content, you shall be solely responsible for (i) their acts and/or omissions in connection with their access and/or use of the Service and (ii) ensuring that their access and/or use of the Service is in compliance with any and all applicable local laws, rules and regulations. You agree to fully indemnify Mirabel and its affiliates, subsidiaries, licensors, and Online Services providers (collectively, "Representatives") for any liability, fines, penalties, costs, claims and/or damages incurred by Mirabel and/or the Representatives in connection with any claim related to the access and/or use of the Service and/or your Content by you, your affiliates, subsidiaries, employees or any third-party authorized by you.
5. Modifications to the Service or Agreements.
5.1 Modifications to the Service.
Mirabel reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Should Mirabel choose to permanently discontinue the Service, Mirabel will post notification of this decision on the Service Web site at least thirty (30) days prior to such discontinuance. You agree that Mirabel shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or for any resulting loss or destruction of any Content that you place on the Service. Mirabel may specify from time to time the version(s) of related products required in order to use the Service (e.g. supported browser versions).
5.2 Modifications to the Terms of Service.
You agree that Mirabel may modify the Terms of Service at Mirabel's sole discretion. Please check the Terms of Service periodically for changes. Your continued use of any of the Service after such modification shall constitute your acceptance of the Terms of Service with the new modifications. If you do not agree to any of such changes, you may terminate the Terms of Service and immediately cease all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms of Service. In addition, Mirabel may at any time introduce separate Terms of Service for users in certain jurisdictions and require users in these jurisdictions to agree to the separate Terms of Service. Mirabel may also require such users to agree that termination of the separate Terms of Service and cessation of all access and use of the Service would be their exclusive remedy if they do not wish to comply with the separate Terms of Service.
You agree to pay any applicable fees for the Service plan you select. These plans are described on the designated software platform pricing pages. Mirabel reserves the right to modify it after the initial term of one year from the date this contract has been executed.
7. Term and Termination.
The Terms of Service shall be effective upon registration and thereafter shall continue on a month-to-month basis following the completion of any contractual obligation per page one of this agreement (e.g., 12 month minimum contract under the Accelerated Training Program) until terminated with thirty days written notice by either party, or until terminated as specified below.
7.2 Termination by Mirabel.
You acknowledge and agree that Mirabel in its sole discretion, may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Service, without prior notice and for any reason, including if you engage in any conduct that Mirabel believes: (a) violates the letter or spirit of any term or provision of the Terms of Service, (b) violates the rights of Mirabel or third parties, or (c) is otherwise inappropriate for continued access and use of the Service. In addition, Mirabel reserves the right to terminate any membership account if that account has been inactive for greater than three hundred and sixty five (365) days. You agree that upon termination, after your data is returned to you, we may delete all files and information related to your account and may bar your access to your account and the Service. Further, you agree that Mirabel shall not be liable to you or any third-party for any termination of your access to the Service.
8. Disclaimer of Warranties; Indemnity; LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MIRABEL AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THIS SOFTWARE WILL BE “ALWAYS” AVAILABLE, NOR WILL WE PROVIDE FINANCIAL WARRANTY FOR ANY EXPENSES OR LOSS OF REVENUE INCURRED DURING ANY PERIOD OF UNAVAILABILITY. MIRABEL WILL NOT BE HELD LIABLE FOR ANY MISCALCULATIONS, FAULTS, OR DEFECTS THAT RESULT IN LOSS OF DATA OR REVENUE OR THAT RESULT IN ADDITIONAL EXPENSES TO THE CLIENT.(b) MIRABEL AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. WHILE MIRABEL WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO DATA ENTERED INTO "RESTRICTED FIELDS" WITHIN THE SERVICE, MIRABEL AND ITS SUPPLIERS MAKE NO WARRANTY THAT SUCH FIELDS WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. MIRABEL AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. MIRABEL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MIRABEL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
8.2 Representations and Warranties.
You represent that, to the best of your knowledge and belief, your use of the Service does not directly or indirectly infringe the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your registration is accurate and reliable.
You agree to indemnify and hold harmless Mirabel, its subsidiaries and affiliates, and its and their directors, officers, agents and employees ("Indemnitees"), from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content; your use of the Service; your connection to the Service; your violation of the Terms of Service; or your violation of any proprietary or other rights of another. You further agree and acknowledge that the Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to your use of the Service. You further agree to indemnify, defend and hold harmless the Indemnitees from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your use of the Service, or the placement or transmission of any message, information, software or other materials through the Service by you or users of your account or related to any violation of any term of the Terms of Service by you or users of your account.
8.5 Limitation of Liability.
(A) YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIRABEL AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MIRABEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.(B) YOU ALSO AGREE THAT MIRABEL WILL NOT BE LIABLE FOR ANY (a) INTERRUPTION OF BUSINESS, (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) YOU ACCESS THROUGH THIS SERVICE ; (c) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (d) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE OR IN ANY RESTRICTED FIELD THEREIN; OR (e) EVENTS BEYOND MIRABEL'S REASONABLE CONTROL.(C) IN NO EVENT SHALL MIRABEL'S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY YOU TO MIRABEL FOR THE SERVICE, TO A MAXIMUM AMOUNT EQUAL TO SERVICE CHARGES FOR SIX (6) MONTHS OF THE SERVICE.
8.6 Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8.1 AND 8.4 MAY NOT APPLY TO YOU.
During the term of this agreement and for a period of one (1) year thereafter, You shall not hire, or solicit for hire, either as an employee or a contractor, any Mirabel employee without written consent of Mirabel.