Mia Montana Terms of Service
Merchant desires to use Mia Montana’s online advertising services, customer management services, forwarding phone service, and/or transaction processing service (the “Services”). Online advertising services include creating and managing Offers (as defined below), claiming Offers via the Mia Montana Site using Mia Montana software to publish on directory sites such as Facebook, Google+, and Yelp, and using Mia Montana’s Merchant’s instructions and other documentation of Mia Montana (the ” Mia Montana Documentation”). Customer management services include using Mia Montana software to get customer contact information from customer emails, phone calls, and transactions (the “Interactions”), seeing data resulting from the Interactions, and using Mia Montana’s marketing platform to send messages to customers through email and SMS text messages. Mia Montana will permit Merchant to use the Services and the Mia Montana Documentation subject to the terms and conditions of these Terms of Service. By using the Services, Merchant agrees to all of the terms and conditions of these Terms of Service, including but not limited to the limitations on liability set forth herein. IF MERCHANT DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, MERCHANT IS NOT PERMITTED TO USE THE SERVICES.
- Agreement to Provide Services. Subject to the terms and conditions of these Terms of Service and during the term of these Terms of Service, Mia Montana will provide to Merchant access to the Services purchased through and described on the Mia Montana website at www.MiaMontana.com and its sub domains (the ” Mia Montana Site”), or purchased through a Vendor, and in accordance with any applicable Service Order(s). Merchant’s Services start on the date of the initial charge to create the account (the “Initial Charge”). Merchant understands and agrees that by using the on-line registration process and consenting to the terms of these Terms of Service Merchant has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.
- Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in these Terms of Service shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Merchant-issued order form or purchase order, the terms of these Terms of Service and the applicable Service Order shall control.
- Offers. Upon acceptance of a Service Order, Merchant may (i) create, by using the Mia Montana Platform, an on-line coupon or similar marketing offer, deal or advertisement to market its products or services (each, an “Offer”) or (ii) access the Mia Montana Platform (as defined below) to deliver its own Offers. Offers may be featured either on the Mia Montana Site or on third-party websites with which Mia Montana maintains a partnership (such site, a “Third-Party Partner Site”). An “Offer Campaign” is the active period in which an Offer is displayed via the Mia Montana Site or a Third-Party Partner Site. Mia Montana may create Offers for Merchants and/or implement an Offer Campaign as part of the Services based on Merchants’ instructions and specifications. Merchant agrees to honor all Offers created via the Services consistent with such Offers’ applicable terms and conditions (including expiration date). Merchant is responsible for charging customers for all applicable sales or use tax at the time the Offer is redeemed. Merchant agrees that all Offers will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, and that such rules, restrictions or limitations will be presented to prospective purchasers prior to purchase.
Mia Montana retains editorial control over all content and can edit Offer content in its discretion if it believes it will improve the performance of the Offer Campaign.
- Claim or Use of Offers. Certain Offers may be claimed by End Users (“End User” is defined as a consumer or person that would claim an Offer) and exchanged for goods and services from Merchant. Mia Montana shall not be responsible for any inaccuracies, misrepresentations, product or service liability, or offensive, infringing, libelous or illegal materials resulting from the use of Offers. Merchant is solely responsible for redeeming the Offer in accordance with its terms. Merchant is solely responsible for and releases Mia Montana from liability for any injuries, illness, damages, claims, liabilities and costs arising from or related to any act or omission of Merchant in connection with Merchant’s use of an Offer or the services/goods provided in connection with such Offer.
- Offer Publication. Upon Initial Charge, Merchant’s Offer will be published across Mia Montana’s directory partner sites and the mobile ad network. Mia Montana retains the right to publish Offer upon Initial Charge without further approval from Merchant. Should Merchant request any changes to the Offer, Merchant agrees to email support@Mia Montana .com or call Mia Montana at (406-661-2325), or if specified in a Service Order, the Vendor from whom Merchant purchased a right to use the Services, to make any requested changes. Mia Montana agrees to make these changes within 48 business hours’ notice to Mia Montana as best as commercially reasonably possible.
- Customer Management. If Merchant has agreed to Mia Montana tracking their customer Interactions, Mia Montana will record and display back to Merchant the customers’ Interactions with the Merchant. These Interactions may include but are not limited to: date of interaction, transaction amount, last 4 digits of customer credit card number, customer name, customer phone number, customer email address, and ways that the customer has interacted with the merchant. If Merchant has subscribed customers to its marketing mailing list, Mia Montana will send its customers emails and SMS text messages on behalf of the Merchant. SMS messages will only be sent to customers who have chosen to opt in to SMS text marketing. The Merchant has the option to remove customers from its marketing mailing list at any time, including removing all customers from the mailing list.
- Phone forwarding service. If Merchant has enabled the Phone forwarding service, Mia Montana will provide the Merchant with a phone number that forwards to a phone number chosen by the Merchant. Mia Montana will also publish the forwarding number to Mia Montana-managed directory websites. Upon termination, Merchant is responsible for ensuring that the forwarding number is removed and replaced on all directory websites and any other places where it is listed and Mia Montana is under no obligation to continue renting, or otherwise supporting, the forwarding number.
- Transaction processing service. If Merchant has enabled the Transaction processing service, Mia Montana will process the Merchant’s credit card transactions. This service does not require a change in the Merchant’s credit card processing system in most cases; in situations that do, Mia Montana may provide a new credit card payment processing device.
2. MODIFICATIONS TO THESE TERMS OF SERVICE
- Subject to the terms and conditions of these Terms of Service, Mia Montana grants to Merchant a non-exclusive, non-transferable, revocable license during the Term (as defined in Section 12), without the right to sublicense, to (i) use the software and other technology supplied by Mia Montana to enable Merchant to receive or access the Services (the ” Mia Montana Platform”) solely for the purposes of accessing and using the Services; and (ii) use the Mia Montana Documentation in connection with the Merchant’s use thereof. Except for the limited licenses granted hereunder, Mia Montana reserves all rights not expressly granted and no such additional rights may be implied.
- Ownership. Merchant acknowledges that (i) all right, title and interest in and to the Services, including the Mia Montana Platform and Mia Montana Documentation therein, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary rights embodied therein or associated therewith, are and shall remain with Mia Montana or its third party licensors; (ii) no right or interest in the Services or the Mia Montana Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the Mia Montana Documentation and the Mia Montana Platform are protected by copyright and other intellectual property laws; and (iv) Mia Montana asserts that the Services, the Mia Montana Documentation and the Mia Montana Platform embody valuable confidential and secret information of Mia Montana or its licensors, the development of which required the expenditure of considerable time and money.
- No Modification. Merchant agrees that Merchant shall not (i) modify or alter the Mia Montana Platform; (ii) create derivative works of the Mia Montana Platform; (iii) decompile, disassemble, decode or reverse engineer the Mia Montana Platform, translate the Mia Montana Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Mia Montana Platform or reduce the Mia Montana Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
- License to Merchant Marketing Content. In connection with the Services ordered via an applicable Service Order, Merchant grants Mia Montana and Third-Party Partner Site(s) a non-exclusive, transferable, royalty-free license during the Term to use Merchant’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Merchant to Mia Montana (“Merchant Marketing Content”) in connection with the advertising, promotion and sale of Merchant’s products, services or business, and to sublicense such Merchant Marketing Content to third parties in connection with the provision of such Services. Merchant acknowledges that Offers posted on Third-Party Partner Site(s) may not carry the Mia Montana trademark or branding. Merchant further acknowledges and agrees that Mia Montana or its sublicenses may modify Merchant Marketing Content in order to effectively provide the Services ordered in Mia Montana’s reasonable discretion, provided that none of such modifications shall materially alter the terms of any Offer without Merchant’s prior written consent.
- Certain Other Obligations. Merchant agrees that Merchant (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services, the Mia Montana Platform, the Documentation or on any other Mia Montana materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.
- Non-Assertion of Claims. During and after the term of these Terms of Service, Merchant will not assert, nor will Merchant authorize, assist, or encourage any third party to assert, against Mia Montana or any related party, any patent infringement or other intellectual property infringement claim with respect to the Mia Montana Platform, Mia Montana Documentation or the Services.
- In the event Merchant elects, in connection with any of the Services, to communicate to Mia Montana (either directly or through a Vendor) suggestions for improvements to the Services (“Feedback”), Mia Montana shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Merchant. Merchant hereby grants to Mia Montana a royalty-free, sub licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, Mia Montana hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the Mia Montana Site by Merchants of the Mia Montana Site generally (“Comments”). Further Mia Montana (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the Mia Montana Site immediately in its sole discretion.
4. FEES AND BILLING
- In consideration for the provision of Services to Merchant, Merchant will pay to Mia Montana, or if Merchant purchases a right to use the Service from a Reseller, then Merchant will pay to such Reseller, all Services fees (“Fees”) due in advance according to the Service Order. Charges are exclusive of all applicable taxes, which may be billed to Merchant in addition to the Fees. Mia Montana or Vendor will provide Merchant fifteen (15) days advance notice for any increase in fees or addition of new fees for any existing Services. Merchant’s continued use of the Services after a fee increase will constitute Merchant’s agreement to the increase in service fees.
- Billing, Invoicing and Payment Terms.Mia Montana , or if applicable, the Vendor, will charge Merchant’s credit card provided in the Service Order the Fees for the Services rendered in advance for each billing period on or after the first day of such billing period. If Merchant is paying by credit card or eCheck , (a) Merchant hereby irrevocably authorizes Mia Montana, or if applicable, the Vendor, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, in advance, and (c) if Merchant’s credit card expires, Merchant hereby gives Mia Montana, or if applicable, the Vendor, permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to support@Mia Montana .com within fifteen (15) days of delivery of the billing statement, and disputes not made within that time are waived by Merchant. Late payments resulting from credit card declines that the Merchant have attempted to follow up on hereunder will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. Mia Montana, or if applicable, the Vendor, reserves the right to have Merchant complete a credit application to determine Merchant’s creditworthiness as a condition of receiving further Services. If Mia Montana, or if applicable, the Vendor, must initiate a collections process to recover Fees due and payable hereunder, then Mia Montana, or if applicable, the Vendor, shall be entitled to recover from Merchant all costs associated with such collections efforts, including but not limited to reasonable attorneys fees. In the event Mia Montana, or if applicable, the Vendor, delivers to Merchant an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fifteen (15) days of the date of such invoice.
In the event an account is past due and Merchant requests to cancel per Section 12, Merchant is required to pay for the 30 days of service from their initial bill date decline.
5. USE OF THE SERVICE
- Communications. Merchant is responsible for obtaining and maintaining all of the appliances, hardware, software and services that Merchant may need to access and use the Services. Without limiting the foregoing, Merchant must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Merchant to access and use the Services.
- Customer Management. While Mia Montana will make every effort to ensure that email and SMS Text marketing messages sent on behalf of Merchant comply with Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Acts, Merchant assumes full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Merchant’s obligations with respect to customer management include those more fully described in Section 5.7 below.
- Passwords. Merchant is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Merchant IDs or other credentials and login information (collectively, “Passwords”) that have been provided to Merchant or that are generated in connection with Merchant use of the Services. Merchant will not disclose or make available any Passwords other than to Merchant authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Merchant is solely and fully responsible for all activities that occur in connection with Merchant’s Passwords. Without limiting the foregoing, Merchant is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Merchant’s account on the Services. In the event Merchant believes the Passwords have been compromised, Merchant is solely responsible for notifying Mia Montana immediately by email to firstname.lastname@example.org and phone call to (406-661-2325).
- Downtime. Merchant acknowledges that Merchant’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Mia Montana.
- Suspension, Limitation or Termination. Mia Montana shall be entitled, without liability to Merchant, to immediately suspend, terminate or limit Merchant’s access to the Services at any time in the event (i) that Mia Montana determines that the Services is being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that Mia Montana determines that the Services are being used in an unauthorized or fraudulent manner; (iii) that Mia Montana determines that the use of the Services adversely affects Mia Montana’s equipment or service to others; (iv) Mia Montana is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which Mia Montana determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of User Data and Customer Data. In addition, Mia Montana shall have the right to immediately deny or suspend access to the Mia Montana Platform or Services in the event Mia Montana, or if applicable, a Vendor, is not paid any amount due in connection with the Services or Merchant’s breach or alleged breach of these Terms of Service. Without limiting the generality of Section 5, Mia Montana shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Merchant‘s right to use the Services in accordance with these Terms of Service.
- Prohibited Activities. Merchant may not use the Services (i) in violation of these Terms of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on the Mia Montana Site; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Merchant may not use the Mia Montana Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Merchant may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the Mia Montana Platform. Merchant may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Mia Montana. Merchant may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Mia Montana Platform or Services by any other party. Merchant may access the Services only through the interfaces and protocols provided or authorized by Mia Montana. Merchant may not access the Mia Montana Platform or Services through unauthorized means, such as unlicensed software clients. Merchant may not compile or use the Mia Montana provided materials or any other information obtained through the Services or the Mia Montana Platform for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
- No Spam; Merchant’s Obligation to Obtain Permission. Under the terms of the CAN-SPAM Act, as between Mia Montana and Merchant, Merchant is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN-SPAM, including but not limited to the prohibition against sending unsolicited emails to persons with whom Merchant does not have a business relationship or who have not requested (opted-in) to Merchant’s emails (Spam). As part of its agreement to these Terms of Service, Merchant agrees to only send permission-based emails. “Permission-based” means that all recipients must have opted-in to receive email communications from Merchant. Emails sent by Merchant must include all information required by CAN-SPAM.
- HIPAA Compliance. Merchant agrees to not upload or incorporate into any customer lists, or otherwise provide to Mia Montana any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA).
- Changes to the Services. Mia Montana has the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type of files that can be stored. Mia Montana may provide notice of material changes to the Mia Montana Platform or Services by posting them on the Site. It is Merchant’s responsibility to check the Mia Montana Site periodically to inform Merchant of any changes. You understand and agree that Mia Montana may need to change the telephone number(s) and/or the credit card payment processing system. You agree that Mia Montana will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Mia Montana has been advised of the possibility of such damages.
6. DATA PRIVACY
- Merchant Data. Merchant warrants that Merchant is the owner or legal custodian of, or otherwise has the right to provide to Mia Montana, all programs, data, information and other content transmitted via the Mia Montana Platform and hosted through the Services, including, without limitation, the Merchant Marketing Content (collectively the “Merchant Data”) and has the full authority to transmit and store the Merchant Data through the Services. Merchant hereby authorizes the storage of Merchant Data by Mia Montana through the Services that Merchant elects to transmit via the Mia Montana Platform. Merchant acknowledges that Merchant bears sole responsibility for adequate security, protection and backup of Merchant’s User Data on Merchant’s equipment. Merchant understand that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Merchant restoring files that are no longer usable. Without limiting the generality of Section 5, Mia Montana will have no liability to Merchant for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Merchant’s User Data on Merchant’s equipment.
7. WARRANTIES, REPRESENTATIONS, AGREEMENTS
- Authority. Merchant represents and warrants that (i) Merchant has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Merchant is a party or by which Merchant is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
- Compliance with Law. In connection with the subject matter of these Terms of Service, Merchant agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State laws and regulations, including but not limited to any State or Federal laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates data privacy and protection, sending of electronic marketing messages including but not limited to the CAN-SPAM Act of 2003, and HIPAA.
- Validity of Offers. Merchant warrants that any Offer, upon claim by a customer whether on the Mia Montana Site or a Third-Party Partner Site or otherwise, shall be available for redemption by such customer. Merchant agrees to comply with the Offer terms and conditions as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Merchant’s customers or potential customers via the Services, and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section 7.3 shall remain in effect regardless of whether Merchant is currently using the Services.
- Authorization and Account Information. Merchant represents and warrants that: (i) the information Merchant provides in connection with Merchant’s registration for the Services is accurate and complete; (ii) if Merchant is registering for the Services as an individual, that Merchant is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Merchant is duly authorized to do business in the country or countries where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Merchant, and (c) Merchant’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Merchant to these Terms of Service and all transactions conducted under Merchant’s account.
8. LIMITED WARRANTY
- Mia Montana Platform and Services. Mia Montana warrants solely to Merchant that the Mia Montana Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Documentation. Mia Montana shall use commercially reasonable efforts to perform the Services according to the agreed upon terms and specifications between Merchant and Mia Montana in any applicable Service Order. Mia Montana’s sole obligation and Merchant’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. Mia Montana shall have no obligation for any failure resulting from (i) content provided by or passed through Merchant or third-parties in connection with the Services (including Marketing Content); (ii) operating system modifications, changes or updates applied by the Merchant; (iii) the use or combination of the Mia Montana Platform or the Services with any other software or hardware not supported by Mia Montana; (iv) causes external to the Mia Montana Platform or the Services, such as problems with the hardware, network or other infrastructure with which the Mia Montana Platform and the Services are used; (v) unauthorized or improper use of the Mia Montana Platform or the Services; or (vi) any modification of the Mia Montana Platform or the Services by anyone other than Mia Montana.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE Mia Montana PLATFORM AND THE SERVICES ARE PROVIDED TO MERCHANT “AS IS,” WITHOUT WARRANTY OF ANY KIND. Mia Montana HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE Mia Montana PLATFORM, THE SERVICES OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, Mia Montana does not warrant that the Mia Montana Platform or the Services will meet Merchant’s requirements or operate without interruption OR DOWNTIME or be error free. Notwithstanding anything in these Terms of Service to the contrary, the warranties provided by Mia Montana hereunder with respect to the Mia Montana Platform or the Services may not be extended, supplemented or modified by a Vendor, and if a Vendor makes any additional warranty, representation or commitment regarding the Mia Montana Platform or the Services (or modifies an existing warranty, representation or commitment granted by Mia Montana regarding the Mia Montana Mia Montana Platform or the Services), the Vendor shall be solely responsible for any such additional warranties, representations or commitments or modifications.
9. LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Mia Montana, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, OR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO MERCHANT OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM MERCHANTS OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT Mia Montana HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF Mia Montana, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY MERCHANT FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
- Merchant may not bring any suit or action against Mia Montana for any reason whatsoever more than one (1) year after the cause of action accrued.
- Furthermore and notwithstanding anything herein to the contrary, Merchant acknowledges and agrees that: (i) any Services (“Partner Services”) provided by, through or in partnership with Vendor or any other third-party partner of Mia Montana (“Partners”) ARE PROVIDED TO MERCHANT “AS IS,” WITHOUT WARRANTY OF ANY KIND. Mia Montana HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO MERCHANT OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD END USER TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Merchant in connection with the Partner Services (“Merchant Content”), with the right to sublicense to Partner’s publisher partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Merchant Content nor use Merchant Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Merchant’s request, reasonable efforts will be used by the Partners to remove from publication any Merchant Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Merchant Marketing Content nonetheless continues to be published; (iv) Merchant will cooperate to provide Mia Montana with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
Unless otherwise specified in a Service Order (including a Service Order with a Vendor), Mia Montana or a Mia Montana agent will provide Merchant support to Merchant via a dedicated telephone number during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM EDT, excluding U.S. national holidays. In providing support, Mia Montana or a Mia Montana agent may use a variety of tools to aid in the process of resolving Merchant issues as a Merchant and may request that Merchant provides additional information in order to resolve these issues. Merchant hereby grants Mia Montana and such agent the right to use those tools and any information Merchant provides to Mia Montana in order to provide Merchant with support.
Merchant will indemnify and hold Mia Montana, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the ” Mia Montana Parties”) harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney’s fees, resulting from any claim (including third party claims), suit, action or proceeding against a Mia Montana Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Merchant’s use or combination of the Mia Montana Platform and the Services with any other software or hardware not supported by Mia Montana, if such infringement would not have occurred but for such use or combination; (B) any modification of the Mia Montana Platform and the Services by Merchant; or (C) the use by Merchant of any version of the Mia Montana Platform and/or Services other than the current version of the Mia Montana Platform and/or Services, if such version was made available by Mia Montana with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Merchants of the Offers on the Mia Montana Site or Third-Party Partner Site relating to Merchant’s products or services); or (iii) any breach by Merchant of any representation, warranty or obligation under these Terms of Service; or (iv) the use, transmission, access or disclosure of Customer Data. Mia Montana does not knowingly collect, either online or offline, personal information from persons under the age of thirteen (13). Merchant agrees to indemnify Mia Montana if, as a result of customer Interactions, Mia Montana collects Customer Data from persons under the age of 13.
12. TERM AND TERMINATION
- Term. Subject to Mia Montana’s receipt of all applicable Fees, and unless otherwise terminated in accordance with this Section 12, these Terms of Service shall commence upon Merchant’s first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period specified on the applicable Service Order (the “Term”). Each Service Order shall continue for the Term specified therein, and will AUTOMATICALLY RENEW for subsequent Terms (“Renewal Term”) unless either party provides at least forty-eight (48) business hours written notice of termination prior to the expiration of the then-current Term that it elects to terminate the Services under such Service Order at the end of such Term. Unless otherwise specified in a Service Order (including a Service Order with a Vendor), notification of termination from Merchant to Mia Montana must be emailed in at support@Mia Montana .com which must be confirmed by Merchant by phone and at (406-661-2325_ with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM EDT, excluding U.S. national holidays. If Merchant chooses not to renew, Merchant must fully notify Mia Montana in writing at least 48 business hours prior to the Renewal Term, in which case, Merchant will continue to have access to the Mia Montana service and be billed until the end of the then current term.
- Termination By Merchant. Unless otherwise specified in a Service Order (including a Service Order with a Vendor), Merchant has the right to terminate these Terms of Service by written communication via email at support@Mia Montana .com which must be confirmed by Merchant by phone at (406-661-2325) with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 6:00 PM MST excluding U.S. national holidays, no fewer than forty-eight (48) business hours prior to Merchant’s next payment period. In the case Merchant fails to fully notify Mia Montana of their intent to cancel within this time, Merchant is responsible for the payment of services rendered for that Renewal Term. Merchant shall not in any event be entitled to any refund of any Fees previously paid to Mia Montana for services.
- Termination by Mia Montana. Mia Montana shall have the right to terminate these Terms of Service at any time without cause and without notice. In addition, Mia Montana may terminate these Terms of Service upon written notice to Merchant (or upon written notice provided to a Vendor and then passed along by a Vendor to a Merchant) if Merchant becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by Mia Montana without cause, Merchant may be entitled to a pro-rata refund of any fees advanced to Mia Montana.
- Past Due Bills. In the event of a credit card decline, Mia Montana, or if applicable, a Vendor, will attempt to reach out to Merchant for a new payment method. If Mia Montana or, if applicable, a Vendor, fail to connect within 30 days, the account will be terminated due to non-payment and Mia Montana will attempt to collect on any past due balances at Merchant’s expense. Per Section 4.2, in the event Merchant, or if applicable, a Vendor, requests to cancel with a past due balance, Merchant is required to pay for a minimum of 30 days worth of service.
- Consequences of Termination. Upon termination of these Terms of Service for any reason, Merchant shall cease to use the Mia Montana Platform, the Services and Documentation. Mia Montana retains the right to cease Merchant’s access to any Mia Montana Platform and services in the event of termination by either party.
- Data Preservation, Retrieval or Transfer. In the event of a temporary suspension of Merchant’s access to Services, (i) Mia Montana will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event of the termination of these Terms of Service, Merchant may, upon reasonable notice to Mia Montana, elect to retrieve Merchant Marketing Content or Customer Data directly. If these Terms of Service are terminated for any reason other than Merchant’s breach, Mia Montana will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of thirty (30) days, or for sixty (60) days with respect to customer Interactions as discussed above. If these Terms of Service are terminated on account of Merchant’s breach or alleged breach of these Terms of Service, Mia Montana will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Interactions as discussed above. In each case, Merchant’s post-termination retrieval or transfer of Data or Marketing Content will be conditioned on Mia Montana’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Merchant’s compliance with such reasonable terms and conditions as Mia Montana may establish with respect to such retrieval or transfer. In addition, if Merchant utilizes the professional services of Mia Montana to assist Merchant in connection with such retrieval or transfer, Merchant will be responsible for Mia Montana’s then current charges for such professional services. In the event that Mia Montana does not receive all such Fees and amounts due within the thirty (30) day or fifteen (15) day periods described above, or in the event that Merchant fails to notify Mia Montana of Merchant’s election with respect to Merchant Marketing Content or Customer Data within such period, Mia Montana shall have no obligation to continue to store Merchant Marketing Content or Customer Data or permit Merchant to retrieve or transfer the same.
- Survival. The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.6, 4, 6, 7, 8.2, 9, 11, 12.4, 12.5 12.6 , 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.
13. DIGITAL MILLENNIUM COPYRIGHT ACT; TAKE DOWN NOTICE AND PROCEDURES
It is Mia Montana’s policy to respond to notices alleging that any material uploaded by users of the Services or the Mia Montana Platform infringes another persons’ copyright. If you believe any material accessible on or from the Site or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this web site by contacting the Mia Montana, Inc. copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Site or Services is:
Mia Montana Legal
Mia Montana, LLC.
Address: PO BOX 51146 Billings MT 59105
For all email submissions please include the subject line: DMCA Takedown Request.
Mia Montana has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or Mia Montana Platform who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.
- Marketing. Merchant agrees that Mia Montana may refer to Merchant by name and trademark in Mia Montana’s marketing materials and web site. Merchant understands and acknowledges that Mia Montana does not certify or endorse, and has no obligation to certify or endorse, any of Merchant’s products or content.
- Credit Card Authorization. By submitting your credit/debit card (“Bank Card”) data to Mia Montana, or if applicable, a Vendor, you authorize Mia Montana, or if applicable, a Vendor, in its complete discretion to submit a financial transaction(s) for a recurring charge to your issuing bank for settlement in accordance with the applicable Service Order or other instructions provided by you to Mia Montana. You agree that once Mia Montana, or if applicable, a Vendor, has approved or declined your transaction, Mia Montana has fully performed under the terms of this Agreement. You agree to contact Mia Montana, or if applicable, a Vendor, as described above in the event that you desire to cancel any recurring charge. Should you fail to contact Mia Montana, or if applicable, a Vendor, in accordance with these Terms of Service, you agree not to seek any redress against Mia Montana, or if applicable, a Vendor, for such recurring charges and you agree to indemnify and hold Mia Montana harmless from any losses or damages that you suffer as a result of a recurring charge. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact Mia Montana, or if applicable, a Vendor, 48 business hours prior to the next billing cycle by email and phone as described above. Upon proper notification, Mia Montana, in its sole discretion may issue a credit to your Bank Card.
- Modification; Waiver. Mia Montana shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at www.Mia Montana.com/terms. Mia Montana shall use reasonable efforts to provide Merchant with notice of changes to these Terms of Service (including, by submitting a notice to the applicable Vendor to be forwarded to Merchant), but Merchant is responsible for regularly checking the Mia Montana Site to inform Merchant of such changes. Continued use of the Services after any such changes are posted shall constitute Merchant’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
- Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York as if made in and performed entirely within the State of New York. The parties expressly reject any application to these Terms of Service of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this these Terms of Service or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, and Merchant hereby consents to the jurisdiction of such courts.
- Assignment. Merchant may not assign its rights or delegate any obligations hereunder without the express prior written consent of Mia Montana. Any assignment by Merchant without the prior written consent of Mia Montana shall be null and void. Mia Montana may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party’s permitted successors and assigns.
- Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
- Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
- Independent Contractor. Neither Merchant nor Mia Montana shall be deemed to be an agent of the other and the relationship of Merchant and Mia Montana shall be that of independent contractors. Neither Merchant nor Mia Montana shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
Mia Montana, Inc. will receive a completed IRS form W-9 and will issue a 1099K in accordance with IRS regulations.
- Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Merchant may provide to Mia Montana. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
- Compliance With Laws. Merchant agrees to comply at all times with all laws, rules and regulations applicable to Merchant’s use of the Services, including but not limited to data privacy laws and legal requirements.
- Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.
- Arbitration. In any claim, action or proceeding to enforce any right or obligation of the parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury.
Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the Mia Montana Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to then current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, This agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against Mia Montana hereunder unless required by applicable law. If either you or Mia Montana intends to seek arbitration under these terms of service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Mia Montana should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and Mia Montana are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration.
The arbitration, information produced, and pre-and post hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.
If Merchant has any questions or concerns about what has been stated in this Terms of Service, please feel free to contact us at support@MiaMontana .com.