Globo Cloud Services Agreement
Last modified: 12/01/2015
This Globo Cloud Services Agreement (“Agreement”) is a binding legal document between You (referred herein as “Customer”) and the providing Globo entity (referred herein as “Globo”), (with each a “Party” and collectively the “Parties”), that sets forth the terms, conditions, rights and obligations that govern Your access and use of Globo’s cloud Services (defined below) and all relevant Services Components (as applicable). Globo grants You a license to access and use the Services only on the condition that You accept all of the terms contained and referenced in this Agreement. The providing Globo entity for the purposes of this Agreement is the Globo entity to which You submit the Order (defined below). For Orders submitted to an authorized reseller of the Services, Your location of receipt of the Services determines the providing entity hereunder and in particular (i) Globo Mobile Inc, licenses the Services in the Americas; (ii) Globo International LLC licenses the Software in Europe, Africa and Pacific; (iii) Globo Mobile Technologies International FZ-LLC licenses the Services in Asia.
PLEASE ENSURE THAT YOU HAVE READ THE ENTIRE AGREEMENT CAREFULLY.
IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT CLICK “I AGREE” WHERE PROVIDED BELOW. BY CLICKING “I AGREE”, OR BY ACCESSING IN ANY WAY OR DOWNLOADING OR ACTIVATING OR USING ALL OR ANY PORTION OF THE SERVICES YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNSERSTOOD AND AGREE TO ABIDE BY AND COMPLY WITH ALL TERMS, CONDITIONS AND NOTICES CONTAINED IN OR REFERENCED BY THIS AGREEMENT AND YOU ARE CONFIRMING THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH YOU LIVE TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, COMPANY OR THIRD PERSON (e.g. licensee is your employer) ΒΥ CLICKING “I AGREE”, OR BY ACCESSING IN ANY WAY OR DOWNLOADING OR ACTIVATING OR USING ALL OR ANY PORTION OF THE SERVICES, YOU REPRESENT AND WARRANT TO HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF AND BIND SUCH ENTITY, COMPANY OR THIRD PERSON IN CONNECTION TO THIS AGREEMENT, OR IF THERE IS NO SUCH ENTITY, COMPANY OR THIRD PERSON, OR YOU HAVE NOT GOT THE AUTHORITY TO ACT ON BEHALF AND BIND SUCH ENTITY, COMPANY OR THIRD PERSON, YOU ARE ACCEPTING THIS AGREEMENT ON YOUR BEHALF AND ACKNOWLEDGE TO BE BOUND BY IT.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT CLICK “CANCEL” OR “I DO NOT AGREE” WHERE PROVIDED BELOW AND DO NOT ACCESS, DOWNLOAD OR IN ANY WAY ACTIVATE OR USE ALL OR ANY PORTION OF THE SERVISES.
From time to time, Globo may modify this Agreement, including any referenced herein policies and other documents, by posting notice of the change online www.globoplc.com. Customer is advised to review the terms of this Agreement on a regular basis. Customer further acknowledges and agrees that its use of the Services, after such notice has been posted online, constitutes its acceptance of the terms of this Agreement, as modified.
Not with standing anything contained here in to the contrary, if Globo and Customer have entered into a written agreement for the access and use of the Services and Services Components (“Signed Agreement”), the Signed Agreement shall be legally binding while this Agreement shall have no effect.
“Action” – any third-party claim, suit, action or proceeding alleging that the Services or any part thereof (excluding all open-source components) infringes or misappropriates any patent, patent application issued or published on or before commencement of the Term, copyright or trademark of that third party.
“Customer Content” – any and all information provided, generated or encountered by Customer or Users pursuant to this Agreement and in the course of using the Services, including without limitation all software, any hypertext markup language files scripts, texts, messages, programs, recording, sound, music, graphics, images applets or servlets created, installed, uploaded or transferred by Customer, Users or recipients in connection with the Services, as well as any technical, statistical or diagnostic information relating to the use of the Services and any information for account management including User ID and contact information.
“Documentation” – user manuals, technical manuals and any other materials (excluding any advertisements or other marketing material even if published by Globo) provided or made available to Customer by Globo, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Services and the Services Components.
“Loss or Losses” – damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees, resulting from any Action that is subject to indemnification under Section 10.
“Maintenance Release” – any update or release of the Services or any part thereof that Globo, at its sole discretion, may provide or make available to Customer from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Services, but does not constitute a New Version.
“Mobile Device” – each smartphone, tablet, laptop, netbook or other device with wireless capability: (1) on which any Services Component is installed or used, or (2) from which any portion of the Services is accessed.
“New Version” – any new version of the Services or of any part thereof that Globo may from time to time introduce and market generally as a distinct licensed product, and which Globo may make available to Customer at an additional cost under a separate written agreement.
“Order” – written or electronic order form submitted by or on behalf of Customer to Globo or an authorised reseller of Services (if the purchasing relationship exists solely between Customer and such authorised reseller) with which the Services ordered by Customer is identified and the billing and contractual relationship is established. Each Order shall describe the Services ordered by Customer and shall be governed by and deemed to incorporate the terms and conditions contained in this Agreement.
“Personal Data” – any information: (a) that identifies or can be used to identify, contact, or locate the person to whom such information pertains; or (b) from which identification or contact information of an individual person can be derived.
“Representatives” – a Party’s and its successors’ and permitted assigns affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
“Services” – the Cloud services provided by Globo and ordered by Customer, as described in the Order, including all Services Components. Services are provided on a cloud infrastructure environment using Service Components hosted in or provided from cloud Content center(s). Based on Customer’s Order cloud services may include free storage and access to cloud – hosted email PIM services.
“Services Component(s)” – all software, tools, API’s utilized to provide the infrastructure and functionality of the Services and which is needed by Customer in order for Customer to use the Services, or that Globo makes available to Customer as part of the Services.
“Term” – the license term identified on the applicable Order and commencing: (i) on the date the license key for the activation of the Services is delivered via email to Customer by Globo, if the purchasing relationship exists between Globo and Customer or (ii) if the purchasing relationship exists between an authorised reseller of the Services and Customer, on the date the license key for the activation of the Services is delivered via email to such reseller or its supplier, as applicable, by Globo. With respect to Go!Enterprise Mobility in a Box purchased from a retailer Term means the license term identified on the purchased product, commencing on the date Customer validates the activation keys provided with the purchased product.
“User” – any individual authorised by Customer to access and use any portion of the Services.
“Warranty Period” – a three month period starting on the commencement of the Term.
2. Usage Rights
2.1. In consideration of the payment by Customer of all applicable fees for the Services Globo will provide Customer a non-exclusive, non-sub-licensable, non-assignable, non-transferable and restricted license to access and use the Services and to permit Users to remotely access and use the Services through Mobile Devices during the Term, for its internal business purposes only, subject to Customer’s and Users full compliance with the terms and conditions of this Agreement, including those incorporated by reference therein. Access to and use of the Services is provided on a device model basis and the maximum number of Mobile Devices that may be permitted access to and use of the Services by Customer, shall be determined by the number of Mobile Devices for which fees have been paid by Customer, as described in the applicable Order. Further Mobile Devices added to the initial number of Mobile Devices and granted access to and use of the Services shall be subject to this Agreement, as it may be amended at that time. Customer is responsible for the use of the Services by Users and for ensuring that Users comply with this Agreement and other referenced herein documents.
2.3. For any Services license provided on a subscription basis, during the Term, Globo shall provide or make available to Customer all Maintenance Releases (including updated Documentation) that Globo may, in its sole discretion, make generally available to its customers at no additional charge, while for any Services license provided on a perpetual basis, the above provision re the Maintenance Releases will be in force for a period of thirty-six (36) consecutive months following the commencement of the Term. All Maintenance Releases, upon being provided or made available by Globo to Customer hereunder, shall be deemed subject to all applicable terms and conditions in this Agreement. Customer shall install all Maintenance Releases as soon as practicable after being available to Customer. Customer shall not have any right hereunder to receive any New Versions of the Services that Globo may, in its sole discretion, release from time to time. Globo may license any New Version that Globo generally makes available to its customers at Globo’s then-current list price and subject to a separate license agreement, provided that Customer is in compliance with the terms and conditions of this Agreement.
2.4. If the Services are provided to Customer free of charge for evaluation purposes (“Trial Version”), then, notwithstanding any term to the contrary in this Agreement, Globo grants to Customer a non-exclusive, non-sub-licensable, non-assignable, non-transferable and restricted right to access and use the Services and the Documentation solely for internal testing and evaluation purposes for the Trial period and the latter represents that Customer is a bone fide potential customer of the Services who is evaluating whether to purchase a license for the Services for deployment in its own business and not for competitive or other purposes. Upon expiration of the evaluation period, Customer must immediately discontinue use of the Trial Version and delete any Services Components entirely from Customer’s systems. The Trial Version may contain an automatic disabling mechanism that prevent access to the Services and use of Services Components after a certain period of time. Customer is solely responsible for all Customer Data stored in the Services during Trial Version and notwithstanding Article 13.5 of this Agreement no back up of Customer Data will be saved upon expiration of the evaluation period. Customer using the Services under a Trial Version must comply with all terms, obligations and restrictions set in this Agreement. Notwithstanding any term to the contrary in this Agreement, under any Trial Version license, the Services are provided “AS IS” without any warranty of any kind and Globo DISCLAIMS ALL warranties, remedies, indemnities, obligations, and other liabilities in connection with any Trial Version. Maintenance Releases are not available to any Trial Version.
2.5. Customer is solely responsible for any installation, set-up or configuration of the Services Components on Customers and Users systems and Mobile Devices that may be required, as well as for any damages that may be caused by such a set up or configuration. Customer is responsible for ensuring that Customer and Users meet the Services minimum requirements (i.e. processing speed, memory, operation system, internet connection etc.) and that Customer and Users use hardware and software that is compatible with the Services as set out on the relevant Documentation. None of the above is Globo’s responsibility.
Globo retains ownership of and all right, title, and interest in and to the Services and any part thereof, including but not limited to graphics, the scripts and software used to implement the Services, and software or applications provided to Customer as a part of and/or in connection with the Services, including any copyrights, trademarks, trade secrets, patents and any other intellectual property rights that exist therein, whether registered or not, and wherever in the world. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted in this Agreement. Customer acknowledges and agrees that the right to use the Services is granted to Customer under the terms and conditions set forth in this Agreement and that Customer is conferred no title or ownership in them.
4.1. As a condition of the rights granted in section 2, Customer is prohibited from doing, or authorizing others from doing, the following: a) lease, loan, resell, assign, sublicense, distribute or in any way transfer any of the rights to use the Services or any part thereof or make the Services available to any third parties, other than Users as provided herein, b) modify (not even for error correction), merge, alter, adapt, translate or in any way reverse engineer, disassemble or decompile (including reverse compiling to ensure interoperability) any part of the Services (except to the extend and for the express purposes authorized by applicable law notwithstanding this limitation and only upon advance notice to Globo), c) create any derivative works based upon the Services or any part thereof, d) use the Services, or any part thereof, to provide third party training or any other commercial service related to the Services e) use the Services to develop competitive solutions or assist someone else to build a competitive solution, f) remove, modify or obscure any copyright notices or other proprietary notices or legends appearing, affixed to or attached on or in the Services, or any part thereof g) use the Services in a way that violates any applicable criminal, civil or administrative law h) disclose results of any benchmark tests of the Services, without Globo’s prior written consent i) infringe the intellectual property rights of any entity or person j) transmit any content or information that is unlawful, harmful, threatening, malicious, abusive, harassing tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful or otherwise objectionable.
4.2. Customer may not print, copy, reproduce, distribute, modify or in any other manner duplicate the Services or any part thereof, in whole or in part. For the purposes of this provision “copy or reproduce” shall not include copying of statements and instructions of the Services Components during program execution when used in accordance with and for the purposes described in the relevant Documentation or in the course of making one copy for backup purposes, in accordance with industry standard business practices. Any copy of the Services or any part thereof made by Customer: shall remain the exclusive property of Globo; be subject to the terms and conditions of this Agreement; and must include all copyright or other intellectual property rights notices contained in the original.
5. Reporting of Violation
Customer agrees to promptly report to Globo any actual or suspected violation of the restrictions set forth in Article 4 and take all reasonable and appropriate steps to prevent any such violation.
6. Customer Content
6.1. Customer is solely responsible for all the Customer Content submitted in, transferred through and stored in the Services. Customer acknowledges and agrees that Customer is solely responsible for the accuracy, selection, creation, design usage, licensing, testing, maintenance, processing, backup and support of Customer Content. As part of this responsibility Customer acknowledges and agrees that Customer is solely responsible for any individual’s Personal Data that may be contained in Customer Content, including any information which Customer shares with third parties or any information Customer considers confidential. With respect to Personal Data Customer has and accepts full responsibility as the controller of such data. Customer agrees to comply with all applicable laws, to obtain all necessary consents, and make all necessary disclosures before including Personal Data in Customer Content and using the Services. Customer will be solely responsible for remaining in compliance with all applicable content privacy and protection laws that may be applicable to Customer Content and for taking all required steps before including Personal Data in the Customer Content and using the Services.
6.2. For the purposes of providing the Services to Customer, Customer Data will be stored in data centers located in the EEA (European Economic Area) and USA. In addition Customer acknowledges and agrees that Globo reserves the right to provide the Services from various locations worldwide, and through use of subcontractors and partners, and expressly consents to Customer Content being transferred across a country boarder, including outside of the EEA or the United States to other countries, provided those countries have not been declared by the European Commission as not providing an adequate level of data protection. To the extent that Customer’s Personal Data are being processed, Globo shall obligate its personnel and subcontractors and partners entrusted with the processing of Customer’s Content to content protection and content secrecy and privacy in accordance with applicable law. Customer grants Globo and its subcontractors and partners a non-exclusive, worldwide, royalty-free, paid-up, transferable license and approval to collect, host, store, cache, copy, transmit, process and display Customer Content for the purpose of and in conjunction with providing the Services for the term of this Agreement, and represents that Customer has or will have at all times all relevant licenses and approvals necessary to grant such license and rights.
6.4. TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, GLOBO DOES NOT GURANTEE OR WARRANT THAT ANY CUSTOMER CONTENT CUSTOMER MAY STORE OR ACCESS THROUGH THE SERVICES WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND GLOBO SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR.
6.5. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SERVICES ARE NOT AN ARCHIVE OR BACKUP SERVICE AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR MAINTAINING APPROPRIATE ALTERNATE BACK UP OF CUSTOMER CONTENT INCLUDING E-MAIL AT ALL TIMES.
7. Admin Account
7.1. Customer acknowledges that Customer has the sole responsibility for the administration of the Services by Customer or by any other person(s) specified by Customer as administrator(s) of Customer’s account and for all activities that occur under Customer’s account. Customer is responsible for i) maintaining the confidentiality of the password and admin account(s) ii) designating those individuals who are authorized to access the admin account(s) iii) and ensuring that all activities that occur in connection with the admin account(s) comply with this Agreement.
7.2. Customer shall change all passwords used to access the Services on a regular basis. Globo is not responsible for the internal management or administration of Customer’s electronic messaging system or messages.
8. Limited Warranty
8.1. Subject to the limitations set forth in Sections 8.2 and 8.3, Globo warrants to Customer that for the Warranty Period the Services shall substantially conform in all material respects to the specifications set forth in the Documentation, when set-up, operated and used as recommended in the Documentation and in accordance with this Agreement.
8.2. The limited warranty set forth in Section 8.1 shall only apply where Customer:
(a) notifies Globo in writing of the warranty breach before the expiration of the Warranty Period;
(b) has promptly installed all Maintenance Releases to the Services or any part thereof that Globo previously made available to Customer; and
(c) as to the date of notification, is in compliance with all other terms and conditions of this Agreement (including the payment of all license fees then due and owing).
8.3. The limited warranty set forth in Section 8.1 shall not apply to problems arising out of or relating to:
(a) a Services Component that is modified or damaged by Customer or Users, or any other software or hardware that are operated with or incorporated into the Services other than as specified in the Documentation;
(b) Customer or any third party’s negligence, abuse, misapplication or misuse of the Services, including any use of the Services Components other than as specified in the Documentation and any relevant software license agreement;
(c) Customer’s failure to promptly install all Maintenance Releases that Globo has previously made available to Customer;
(d) the operation of, or access to, Customer’s systems or network;
(e) any open-source components, beta software, software that Globo makes available for testing or demonstration purposes, or software for which Globo does not receive a license fee;
(f) Customer’s material breach of any material provision of this Agreement; or
(g) any other circumstances or causes outside of the reasonable control of Globo (including abnormal physical or electrical stress).
8.4. If Globo breaches any of the limited warranty set forth in Section 8.1, Globo may, at its sole option, cure the warranty breach (which cure may involve providing a workaround for the problem in one of a variety of forms, including in the course of telephonic or email Customer support) or refund on its own or through an authorized reseller of the Services, as applicable under the established billing and contractual relationship, the applicable license fees paid and terminate this Agreement, provided that Customer fully complies with its post-termination obligations as set forth in Section 13.4. THIS Section 8.4 SETS FORTH CUSTOMER’S SOLE REMEDY AND GLOBO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT.
9.1. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Section 8.1 OF THIS AGREEMENT AND TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND GLOBO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES (INCLUDING ALL OPEN-SOURCE COMPONENTS), DOCUMENTATION AND OTHER SERVICES AND MATERIALS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, GLOBO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
9.2. Third party products or services may be provided in addition to the Services as a convenience, but are not required or necessary for the use of the Services. Except as expressly stated herein, any third party product (including any maintenance and/or support purchased) provided with the Services is provided “AS IS” with no warranties of any kind. GLOBO DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING ANY WARRANTY OF NON-INFRINGEMENT) RELATING TO ANY THIRD PARTY PRODUCTS OR SERVICES.
10.1. Globo shall indemnify, defend and hold harmless Customer and its Representatives from and against any Action that is brought against Customer and all related Losses that are awarded against Customer in a final judgment, provided that Globo shall not be obligated to indemnify Customer or any of its Representatives in any Action or for any Losses incurred in relation to, arising out of or resulting from, in whole or in part:
(a) any combination of the Services or any part thereof with any hardware, system or other software not provided or authorized in writing by Globo, if such infringement would not have occurred but for such combination;
(b) any modification of the Services or any part thereof not provided or authorized in writing by Globo, or Customer’s or any third party’s negligence, abuse, misapplication or misuse of the Software, if such infringement would not have occurred but for such modification, neglect or misuse;
(c) any Action relating to the use of any open-source components included in the Services Components;
(d) any breach by Customer of its obligations set forth in this Agreement; or
(e) any events or circumstances outside of Globo’s commercially reasonable control (including any third-party hardware or software bugs, defects or malfunctions).
10.2. If the Services or any part of thereof, become, or in Globo’s opinion is likely to become, subject to an infringement claim, Globo may, at its sole option and expense, take any of the following steps to avoid or mitigate any potential Losses:
(a) notify Customer in writing to cease using all or a part of the Services, in which case Customer shall immediately cease such use on receipt of Globo’s notice;
(b) obtain the right for Customer to continue to use the Services;
(c) modify or replace the Services or any part thereof with functionally equivalent services (which replacement services shall be deemed Services under this Agreement) that Globo believes to be non-infringing; and/or
(d) immediately terminate this Agreement on written notice to Customer and, provided that Customer fully complies with its post-termination obligations set forth in Section 13.4., promptly provide to Customer a pro rata refund the fees previously paid by Customer for the remaining Term of this Agreement following the date of such termination.
10.3. If Customer receives notice or otherwise becomes aware of the commencement or threatened commencement of any Action for which indemnity may be sought under this Section 10, Customer shall promptly provide Globo with written notice of such Action. On receipt of such notice, Globo shall be entitled to, at its sole option, assume the control of the defense, appeal or settlement of such Action. Customer shall fully cooperate with Globo in connection therewith. Customer shall be entitled at any time to employ separate counsel to represent Customer, but if the defense, appeal or settlement of such Action has been assumed by Globo, any separate counsel employed by Customer shall be at Customer’s sole expense. Customer shall not settle any Action without Globo’s prior written consent.
10.4. THIS Section 10 SETS FORTH GLOBO’S SOLE LIABILITY AND ENTIRE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ACTION THAT IS BROUGHT AGAINST CUSTOMER.
11. Limitation of Liability
11.1. IN NO EVENT WILL GLOBO OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, CONTENT, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GLOBO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. CUSTOMER SPECIFICALLY AGREES THAT GLOBO SHALL NOT BE RESPONSIBLE NOR LIABLE FOR i) UNAUTHORISED ACCESS TO, OR ALTERATION OF, CUSTOMER’S TRANSMISSIONS OR CONTENT, ii) ANY CUSTOMER CONTENT SENT OR RECEIVED OR NOT SENT OR RECEIVED AND iii) ANY TRANSACTIONS ENTERED THROUGH THE SERVICES. CUSTOMER SPECIFICALLY AGREES THAT GLOBO IS NOT RESPONSIBLE NOR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF CUSTOMER OR ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY, INTENGIBLE AND INDUSTRIAL RIGHTS ARISING FROM CUSTOMER’S OR ANY OTHER PARTY’S USE OF THE SERVICES. CUSTOMER SPECIFICALLY AGREES THAT GLOBO IS NOT RESPONSIBLE, NOR LIABLE, FOR ANY CONTENT SENT USING THE COMMUNICATION SERVICES AND/OR BY CUSTOMER OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION VIRUSES.
11.3. CUSTOMER SPECIFICALLY AGREES THAT GLOBO SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY CLAIMING BY OR THROUGH CUSTOMER, FOR ANY ISSUE RELATING TO THIRD PARTY SERVICES OR THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION: (A) THE ACCURACY, TRANSMISSION, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SERVICES, AIRTIME SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY CONTENT, LINKED SITES OR OTHER WEB SITES; (B) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY SOFTWARE, THIRD PARTY SERVICES OR AIRTIME SERVICES; OR (C) THE INTEROPERABILITY OF THE THIRD PARTY SOFTWARE, THE THIRD PARTY SERVICES OR AIRTIME SERVICES WITH ALL OR A PORTION OF GLOBO’S SERVICES. CUSTOMER’S RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY SOFTWARE, THIRD PARTY SERVICE, AIRTIME SERVICES OR THIRD PARTY CONTENT, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
11.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY CLAIMS UNDER THE INDEMNITY PROVISIONS (Section 10) OF THIS AGREEMENT, IN NO EVENT WILL GLOBO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE FEES PAID TO GLOBO FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE LAST TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Indemnification of Globo
2.1. CUSTOMER SHALL INDEMNIFY, DEFEND AND FOREVER HOLD GLOBO AND GLOBO’S LICENSORS AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING REASONABLE LAWYER’S FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, OR ANY BREACH OF THIS AGREEMENT BY CUSTOMER AND/OR USERS. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
12.2. Customer acknowledges that a breach or threatened breach of this Agreement by Customer or its Representatives may cause irreparable harm to Globo for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Customer or its Representatives, Globo shall, in addition to any and all other rights and remedies that may be available hereunder and at law (which Globo does not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
13. Term and Termination
13.1. This Agreement shall be effective for the applicable Term subject to being accepted by Customer as manifested by the conduct described in the preamble. If the applicable Term is renewed on or prior to its expiration [“Renewal Term(s)”], this Agreement will continue to be effective, as modified or altered at that time, until the expiration of the agreed Renewal Term(s).
13.2. Globo may terminate this Agreement upon notice at any time for Customer’s breach of this Agreement or if it is requested to do so by law including, without limitation, a request and/or order from law enforcement, a judicial body, or other government agency.
13.3. Upon termination by Globo of this Agreement, or any part thereof, by use of its rights set in Article 13.2., Globo shall have no obligation to refund to Customer any fees paid by Customer, and Customer agrees to waive, in perpetuity and unconditionally, any and all claims for refunds and acknowledges that Customer will not be relieved from the obligation to pay fess that remain unpaid.
13.4. Upon expiration of the applicable Term without being renewed or upon termination of this Agreement for any reason, Customer and Users must immediately cease all use of and access to the Services and destroy all copies of the Services Components and the Documentation. The expiration or termination of this Agreement shall not release Customer from any liability to Globo, including any payment obligation, which has already accrued hereunder.
13.5 Upon expiration of the applicable Term without being renewed or upon termination of this Agreement for any reason, Customer will be provided with a safety extension period of sixty days (60), starting on the day of termination or expiration of this Agreement, during which Customer will be entitled to access the Services ONLY in order to export and retrieve any of Customer’s Content stored therein. Customer EXPRESSLY ACKNOWLEDGES AND AGREES, that sixty (60) days after the effective date of termination or expiration of this Agreement, Globo has no obligation to maintain, store or in any manner save or provide any of Customer’s Content.
13.6. Notwithstanding the termination or expiration of this Agreement for any reason, its provisions that by their nature survive termination will continue to apply.
14.1. “Confidential Information” means any non-public data and information provided by one Party (‘Disclosing Party’) to the other (‘Receiving Party’) after the commencement of the Term, where such information is marked or otherwise communicated as being ‘proprietary’ or ‘confidential’ or the like, or where such information by its nature, or the circumstances under which it was obtained or disclosed were such that a reasonable person would know it should be treated as Confidential Information of the other Party. In addition Customer acknowledges that with respect to Globo confidential information are : a) all computer software (both object and source codes), b) techniques, concepts, methods, processes and designs embodied in or relating to the Services and c) all application program interfaces, system infrastructure, system security and system architecture design relating to the Services ii) Globo’s research and development.
14.2. Each Party agrees to keep the Confidential Information of the Disclosing Party confidential using the same degree of care that it exercises with respect to its own proprietary information, but in no event less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information, except to Users with a need for access to exercise the rights conferred hereby and Globo’s employees, contractors, sub-contractors and agents with a need to know for the purposes of this Agreement.
14.3. The above limitations do not apply to information which: (a) at the time of disclosure was in the public domain; (b) was rightfully obtained by the Receiving Party from a third party who was not under any non-disclosure obligations; (c) was lawfully in the Receiving Party’s possession prior to its disclosure by the Disclosing Party; (d) was disclosed with the prior written approval of the Disclosing Party;
14.4. Notwithstanding the provisions of this Section, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required by any court or other governmental body or as otherwise required by law or regulation to be disclosed, provided, however, that the Receiving Party shall provide written notice to the Disclosing Party promptly to enable the Disclosing Party to seek a protective order or otherwise prevent disclosure of such Confidential Information.
15. Force majeure
Nor Customer nor Globo shall be deemed in default of this Agreement for failure to fulfill obligations or delay of performance (EXCEPT FOR THE NON PERMORMANCE OF ANY OBLIGATION TO MAKE PAYMENT TO THE OTHER PARTY UNDER THIS AGREEMENT AND THE RELEVANT ORDER) if caused by causes outside reasonable control of the obligated party, such as for example an act of war or God, hostility, or sabotage, electrical, internet, or telecommunication outage, government restrictions, strikes etc.
16. Governing law & Jurisdiction
Unless otherwise agreed in writing by Globo, this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Santa Clara County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Customer shall not withhold payment of any fees owing under this Agreement by reason of any set-off of any claim or dispute with Globo, whether relating to the quality or performance of the Services or otherwise. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
Customer and Globo expressly agree that all performance under this Agreement and the resolution of disputes shall be conducted in the English language. If a translation of this Agreement into any other language is required by law, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English and any translation thereof. Any notice given under or in connection with this Agreement shall be in English. Any other documents provided under or in connection with this Agreement shall be in English, or accompanied by a certified English translation.
If and to the extent any term or provision of this Agreement is rendered or declared to be invalid, illegal or incapable of being enforced in whole or in part including, but not limited to, the warranty limitations and disclaimers and liability limitations and exclusions set forth above, such invalidation of such term or provision will not invalidate the remainder of the Agreement which shall remain in full force and effect. Any invalid, illegal or unenforceable term or provision of this Agreement shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal or unenforceable term or provision.
19. Non waiver
The failure of either Customer or Globo at any time to require performance of any provision or to resort to any remedy provided under this Agreement shall in no way affect the right of either Customer or Globo to require performance or to resort to a remedy at any time thereafter, nor shall the waiver of a breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is specific, irrevocable and in writing and signed by the party against whom the waiver is being enforced.
Any and all notices, notifications, demands or requests provided under this Agreement addressed by Customer to Globo shall be given by registered mail sent to the address of the providing Globo entity as specified at www.globoplc.com/globo-at-a-glance. Any and all notices and other correspondence relating to this Agreement addressed by Globo to Customer shall be given either by email sent to the email address stated by Customer in the relevant Order, or otherwise furnished by Customer, or by mail sent to the address stated by Customer in the relevant Order, or otherwise furnished by Customer.
21. Export Control
Use of the Services and any part thereof, including transferring, posting, or uploading Content, software or other content via the Services, may be subject to the export and import laws and restrictions (including restrictions on destinations, end users and end use) of the United States and other countries. Customer agrees to comply with all applicable export and import laws and regulations. Customer further agrees not to upload to the Services any Content or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software, without first obtaining that authorization. This assurance and commitment shall survive termination of this Agreement.
22. US Government Rights
Services and Service Components are “commercial item(s)” as that term is defined in FAR (Federal Acquisition Regulation) 2.101. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer receives only those rights as are granted to all other customers license, in accordance with (a) 48 DFAR (Defense Federal Acquisition Regulation) 227.7201 through DFARS 227.7204, with respect to the Department of Defense and their contractors, or (b) FAR 12.212, with respect to all other US Government licensees and their contractors.
23. Final Provisions
23.1. Globo is an independent contractor and both Globo and Customer agree that no partnership, joint venture or agency relationship exists between them.
23.2. Headings are used in this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
23.3. Customer will not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Globo. Any purported assignment or delegation in violation of this Section 23.3. shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations hereunder.
23.4. This Agreement together with any Order and the documents referenced therein constitute the entire and sole agreement between Customer and Globo relating to Customer’s access and use of the Services and any terms, obligations, representations, promises or conditions, oral or written, expressed or implied, that have been previously made or relied upon, other than those contained herein, are deemed invalid by both Customer and Globo. In the event of any conflict between an Order and this Agreement, this Agreement shall control.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ALL THE DOCUMENTS REFERRED THEREIN, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS