Globo Software License Agreement
Last modified: 12/01/2015
This License 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 use of the Software (defined below). 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 Software, Your location of receipt of Software determines the providing entity hereunder and in particular (i) Globo Mobile Inc, licenses the Software in the Americas; (ii) Globo International LLC licenses the Software in Europe, Africa and Pacific; (iii) Globo Mobile Technologies International FZ-LLC licenses the Software in Asia.
The Software may include or be bundled with other software programs licensed under different terms and/or licensed by a licensor other than Globo. Use of any software programs accompanied by a separate license agreement is governed by that separate license agreement. Any third party software that may be provided with the Software is included for use at Customer’s option
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 SOFTWARE 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 SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF 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 OF 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 DOWNLOAD OR IN ANY WAY ACTIVATE OR USE ALL OR ANY PORTION OF THE SOFTWARE.
From time to time, Globo may modify this Agreement, including any referenced herein policies and other documents, by posting notice of the change online at 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 Software, 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 licensing of the Software (“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 Software (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.
“Documentation” – user manuals, technical manuals and any other materials 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 Software.
“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 8.
“Maintenance Release” – any update or release of the Software that Globo 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 Software, but does not constitute a New Version.
“Mobile Device” – each smartphone, tablet, laptop, netbook or other device with wireless capability: (1) on which any portion of the Software is installed or used, or (2) from which any portion of the Software is accessed.
“New Version” – any new version of the Software 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 Software (if the purchasing relationship exists solely between Customer and such authorised reseller) with which the Software licensed to Customer is identified and the billing and contractual relationship is established. Each Order shall describe all of the products that Globo agrees to license and make available to Customer and shall be governed by and deemed to incorporate the terms and conditions contained in this Agreement.
“Personal Data” – information that relates to an identified or identifiable individual.
“Representatives” – a Party’s and its successors’ and permitted assigns affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
“Software” – the applicable software product provided by Globo as identified and described in the applicable Order. The Software contain software that provides enterprise mobility management services on a computer called a server (“Server Software”) by enabling communication with back-end systems, data synchronization and mobile applications/Mobile Devices management, and software that allows Mobile Devices to access/utilize the services provided by the Server Software (“Client Software”).
“Term” – with respect to the Software the license term identified on the applicable Order and commencing: (i) on the date the license key for the activation of the Software 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 Software and Customer, on the date the license key for the activation of the Software is delivered via email to such reseller or its supplier, as applicable, by Globo.
“User” – any individual authorised by Customer to access and utilise any portion of the Software.
“Warranty Period” – a three month period starting on the commencement of the Term.
2.1. Subject to this Agreement and payment of all applicable license fees for the Software, during the Term, Globo grants Customer a non-exclusive, non-sub-licensable, non-assignable, non-transferable and restricted license to use the Software in a machine readable form and the Documentation, for its own internal business purposes only. The Software is licensed under a device model, i.e. Customer authorizes Mobile Devices to be used by Users to access instances of the Server Software through Customer’s assignment of the Mobile Device identity to a device log, regardless of whether or not the Mobile Device is being used at any given time. The maximum number of registered Mobile Devices that Customer may have at any time with access to the services provided by the Software shall be based on the license fees paid by Customer as identified on the applicable Order. Customer may install Server Software on one or more servers which are owned or leased by Customer or for which Customer otherwise has proper authority and control over. Customer may install client Software on associated Mobile Devices but will require the appropriate paid up license fees in order to properly function. Customer must provide at its own expense the equipment, internet connections, Mobile Devices and/or service plans required to use the Software, if any. Customer acknowledges that when it uses the Software, its wireless carrier may charge Customer fees for data, messaging, and/or other wireless access. CUSTOMER, AND NOT GLOBO, IS SOLELY RESPONSIBLE FOR ANY COSTS CUSTOMER INCURS TO USE THE SOFTWARE ON ITS SERVERS AND/OR MOBILE DEVICES. A Software license granted under this Agreement is for the applicable Term. To extend access to and use of the Software, Customer must purchase and activate a new Software license prior to the expiration of the current license. Software may disable itself upon expiration of the applicable Term.
2.2. For any Software 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 Software 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 Software 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 Software 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.
2.3. If the Software is 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 Software 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 Software who is evaluating whether to purchase a license for the Software for deployment in its own business and not for competitive or other purposes. Upon expiration of the Trial period, Customer must immediately discontinue use of the Trial Version and delete the Software or any part thereof entirely from Customer’s systems. The Trial Version may contain an automatic disabling mechanism that prevents use of Software after a certain period of time. Customer using the Software 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 Software is 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.
2.4. Customer is solely responsible for any installation, set-up or configuration of the Software 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 Software 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.
The copyright and all other right, title and interest in and to the Software and the Documentation shall at all times remain with Globo (or its licensors). Customer acknowledges and agrees that no ownership interest in or to the Software and the Documentation is transferred to Customer hereunder and that it does not hereby acquire any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright or rights in any confidential information or trade-secrets, in or relating to the Software or any part thereof and the Documentation and that the Software is provided to Customer strictly on a license basis as provided for herein. Physical copies of the Software and the Documentation, if any, remain the property of Globo (or its licensors) and such copies are deemed to be on loan to Customer during the term of this Agreement. Customer shall not remove, delete or alter any trademarks, copyright notices or other intellectual property rights notices of Globo or its licensors, if any, from the Software, any part thereof, and the Documentation. Globo (or its licensors) reserves all rights not expressly granted to Customer.
4.1. As a condition of the rights granted in Section 2, Customer is prohibited from doing, or authorizing others from doing, the following: (i) lease, loan, resell, assign, sublicense, distribute or in any way transfer or make available any of the rights to use the Software or any portion thereof to third parties except to Users as expressly provided herein; (ii) 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 Software (except to the extend and for the express purposes authorized by applicable law notwithstanding this limitation and only upon advance notice to Globo); (iii) create any derivative works based upon the Software or any portion thereof; (iv) use the Software, or any part thereof, to provide third party training or any other commercial service related to the Software except and to the extent expressly permitted under written agreement entered into by and between Customer and Globo; (v) use the Software to develop competitive solutions or assist someone else to build a competitive solution or for other purpose that is to Globo’s commercial disadvantage; (vi) use the Software in a way that violates any applicable criminal, civil or administrative law; (vii) disclose results of any benchmark tests of the Software, without Globo’s prior written consent; or (vii) infringe the intellectual property rights of any entity or person.
4.2. Customer may not copy the Software, in whole or in part, except that Customer may make one copy of the Software solely for backup purposes. Any copy of the Software 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 Section 4 and take all reasonable and appropriate steps to prevent any such violation.
6. Limited Warranty
6.1. Subject to the limitations set forth in Sections 6.2 and 6.3, Globo warrants to Customer that for the Warranty Period the Software shall substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.
6.2. The limited warranty set forth in Section 6.1 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 Software 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).
6.3. The limited warranty set forth in Section 6.1 shall not apply to problems arising out of or relating to:
(a) Software that is modified or damaged by Customer or Users, or any other software or hardware that are operated with or incorporated into the Software other than as specified in the Documentation;
(b) Customer or any third party’s negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Documentation;
(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).
6.4. If Globo breaches any of the limited warranty set forth in Section 6.1, Globo may, at its sole option, cure the warranty breach or refund on its own or through an authorized reseller of the Software, 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 11.3. THIS Section
6.4 SETS FORTH CUSTOMER’S SOLE REMEDY AND GLOBO’S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY SET FORTH IN THIS AGREEMENT.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Section 6.1 OF THIS AGREEMENT AND TO THE EXTEND PERMITTED BY APPLICABLE LAW THE SOFTWARE IS PROVIDED “AS IS” AND GLOBO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE (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 SOFTWARE 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 SOFTWARE IS 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.
8.1. 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 Software 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 Software 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 licensed Software;
(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).
8.2. If the Software, or any part of the Software, becomes, 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 Software, 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 Software;
(c) modify or replace the Software with functionally equivalent software (which replacement software shall be deemed Software 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 11.3, promptly provide to Customer a pro rata refund the license fees previously paid by Customer for the remaining Term of this Agreement following the date of such termination.
8.3 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 8, 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.
8.4. THIS Section 8 SETS FORTH GLOBO’S SOLE LIABILITY AND ENTIRE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ACTION THAT IS BROUGHT AGAINST CUSTOMER.
9. Limitation of Liability
9.1. 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, DATA, 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.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY CLAIMS UNDER THE INDEMNITY PROVISIONS (Section 8) 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 LICENSE FEES PAID BY CUSTOMER TO GLOBO FOR THE SOFTWARE 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.
10. Indemnification of Globo
10.1. CUSTOMER SHALL INDEMNIFY, DEFEND AND FOREVER HOLD GLOBO AND GLOBO’S LICENSORS AND REPRESENTATIVES, HARMLESS FROM AND AGAINSΤ 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 CUSTOMER’S USE OF THE SOFTWARE, OR ANY BREACH OF THIS AGREEMENT BY CUSTOMER AND/OR USERS. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
10.2. 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.
11. Term and Termination
11.1. 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).
11.2. Globo may terminate this Agreement upon notice at any time for Customer’s breach of this Agreement.
11.3. 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 Software and destroy all copies of the Software 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.
12.1. “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 Software, c) all application program interfaces, system infrastructure, system security and system architecture design relating to the Software and d) Globo’s research and development.
12.2. 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.
12.3. 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;
12.4. 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.
13. Export Regulations
Customer will comply with all export and re-export restrictions (including restrictions on destinations, end users and end use) and regulations of the United States Department of Commerce and other United States and foreign agencies and authorities that may apply to the Software, and will not transfer, or encourage, assist, or authorize the transfer of the Software to a prohibited country or otherwise in violation of any applicable restrictions or regulations. Customer agrees that Customer shall not, in any manner whatsoever, either remove, convey, export, re-export or transmit the Software from its jurisdiction in contravention of applicable laws.
14. US Government Rights
The Software is a “commercial item” 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 with respect to the Software 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.
15.2. To the extent (if any) Globo obtains Personal Data about Customer or/and Users in order to facilitate the registration of Mobile Devices and the deployment, operation and maintenance of the Software, (i) Globo will process the Personal Data only on behalf of Customer, in its capacity as a service provider to Customer, and only within the scope of Customer’s instructions and/or User’s instructions relayed to Globo by Customer (instructions shall be in writing, or via email, or implied by making use of the Software), and (ii) Customer, where required by applicable law, agrees to provide appropriate notice to Users regarding Personal Data privacy practices of Customer and to obtain their consent.
15.3. Customer acknowledges that information, including Personal Data, obtained in accordance with Sections 15.1 and 15.2, will be stored in data centers located in the USA and EEA (European Economic Area). In addition Customer consents to information, including Personal Data, being transferred across a country boarder including outside the EEA or the USA to other countries, provided those countries have not been declared by the European Commission as not providing an adequate level of data protection.
16.1. Languages. The Parties agree that this Agreement and each Order are written and will be construed in English. Each Party accepts and approves the English version of this Agreement and of each Order as controlling in any dispute between the Parties arising from or related to this Agreement. 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.
16.2. Notices. 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/en-GB/global-presence. 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.
16.3. Assignment. 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 16.3 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations hereunder.
16.4. Force majeure. Excepting any Customer’s payment obligations under this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfill obligations or delay of performance 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 etc.
16.5. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.6. Severability. 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.
16.7 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 Software 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.
16.8. Headings. Headings are used in this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
16.9. Entire Agreement. This Agreement, together with any related Order, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 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.