GLOBEMATIC APP SERVICE SUBSCRIPTION AGREEMENT
Last Updated: February 16, 2018
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SITE, SERVICES, DATA OR THIRD PARTY DATA, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES, DATA OR THIRD PARTY DATA. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event; “Customer”, “You” and “Your” will refer and apply to that company or other legal entity.
“Data” means the resources that is (i) owned by Provider and (ii) obtained by Provider from exchanges, APIs, and other sources delivered to Customer via the Services and as described in this Agreement and on the Site.
“Third Party Data” means the resources or other data that is (i) not owned by Provider and (ii) obtained by Provider from exchanges, APIs, and other sources delivered to Customer via the Services and as described in this Agreement and on the Site.
“Data Owner” means a legal entity that holds ownership rights to some of the Data or Third Party Data (defined below) and is the original licensing source of such portion of the Data or Third Party Data when such portion of the Data or Third Party Data is not in the public domain.
“Data Exchange Format” means an electronic version of the Data or Third Party Data used for sharing the Data or Third Party Data between software applications, including but not limited to any application programming interface (API), any database access (e.g., ODBC, etc.), any network transmission format (e.g., EDI, SOAP, RSS, XML, etc.) and any data file format (e.g., XLS, CSV, etc.). Provider reserves the right, in its sole discretion, to determine if a particular electronic version of the Data or Third Party Data constitutes a Data Exchange Format.
“Subscription Plan” means all the subscription plans whether free or purchased by Customer in connection with the use of the Services, Data and Third Party Data. Provider posts the available subscription plans and the specific use of the Services, Data and Third Party Data provided by each subscription plan on the Site, as they may be updated by Provider from time to time. The current subscription plans offered with respect to the Services are located at Globematic.com.
“Professional Services” means time-and-materials services provided to the Customer, such as consulting services, service provider referral services, onboarding support, etc..
Provider reserves the right to modify, discontinue or terminate the Site, Services, Data and Third Party Data or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site. Provider will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Site, Services, Data and Third Party Data after Provider has posted a modification on the Site, You are indicating that You agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Site, Services, Data and Third Party Data. It will be Your responsibility to check for Agreement modification each time prior to using the Site, Services, Data and Third Party Data.
In order to access the Site, Services, Data and Third Party Data, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of Your Account.
FREE SUBCRIPTION PLAN
Provider is making its Subscription Plan available free of charge. However, Provider reserves the right to change its Subscription Plan from Free to Paid at any time at Provider's discretion without any prior notice. In such occurrence Customer will be given 30 days to switch to one of the new plans that is then current. It will be at Provider's discretion to offer a Free Trial at the time the new paid plan(s) are made available.
If Provider decides to introduce Paid Subscription Plans, upon registration to use the Site, Services, Data and Third Party Data, Provider may provide from time to time a restricted use, free trial of the Site, Services, Data and Third Party Data for a then specified number of days (the "Free Trial"). THE RESTRICTIONS OF THE FREE TRIAL ARE DETERMINED SOLELY AT THE DISCRETION OF PROVIDER AND MAY BE MODIFIED AT ANY TIME. THE FREE TRIAL IS PROVIDED ONCE AND ONLY UPON YOUR FIRST REGISTRATION AT THE SITE FOR A SINGLE TRIAL PERIOD. THE FREE TRIAL IS NOT PROVIDED UPON SUBSQUENT REGISTRATION BY CUSTOMER OR CUSTOMER’S AGENTS OR AFFILIATES.
If Provider decides to introduce Paid Subscription Plans, upon completion of the Free Trial, if available by Provider, access to the Site, Services, Data and Third Party Data will terminate until and unless the Customer selects and agrees to purchase a Subscription Plan for continued use of the Site, Services, Data and Third Party Data. Upon selection and purchase, access to the Site, Services, Data and Third Party Data will be provided in accordance with the terms of the specific Subscription Plan selected by the Customer via the Site.
LICENSES AND DATA
Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Services solely for its business purposes. This Agreement governs Customer’s access to and use of the Services and the Site. Customer acknowledges and agrees that but for this Agreement, Customer would have no rights or access to the Services and the Site.
Rights in Data License
Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Data and Third Party Data available via the Services solely for its business purposes. In addition, any Third Party Data may be subject to restrictions of use and require additional license agreements with the Data Owner. While Provider may, in its sole discretion, offer administrative assistance to Customer in obtaining such additional licenses, Customer is solely responsible for obtaining all required license agreements with each Data Owner pursuant to Customer’s use of such Third Party Data. If Customer does not obtain a required license agreement for any portion of the Third Party Data and as such is in violation of the Data Owner’s licensing requirements, Provider may terminate access to the unlicensed portion of Third Party Data until Customer obtains such license agreements with the Data Owner.
Subject to the limited rights expressly granted hereunder, Customer acknowledges that the Data, Third Party Data, Services, Site, and/or any developments to the Data, Third Party Data, Services, and Site that result from services provided to Customer hereunder are proprietary in nature and owned exclusively by Provider and/or the Data Owners. The Data, Third Party Data, the Services, as well as the Developments are to be used exclusively as described herein.
Customer may use the Services solely for its own internal business operations. Customer may not resell the Services to third parties. Customer will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Services, or (d) reverse engineer any element of the Service, or use the Services or any of Provider's Confidential Information to create a product that competes with the Services. Customer may not modify, redistribute, sublicense, sell or otherwise make available any portion of the Services to third parties. Customer will not attempt to access, tamper with, or use non-public areas of Provider's website, computer systems, or the technical delivery systems. Customer will not attempt to probe, scan, or test the vulnerability of Provider's systems or networks or breach any of Provider's security or authentication measures. Customer may not display or make the Data or Third Party Data available in any Data Exchange Format to non-employee users, including but not limited to, vendors, contractors, partners and the general public (e.g., public websites, partner and vendor extranets, EDI applications, etc..).
Except as otherwise provided herein, Customer is responsible for all of Customer’s activities occurring through its use of the Services.
Telecommunications and Internet Services
Customer acknowledges that the use of the Services by Customer is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
TERM AND TERMINATION
This Agreement will commence on the date (the “Start Date”) You Register an Account on the Site.
Subscription Plan Start Date and Renewals
Your Subscription Plan will commence on the date (the “Start Date”) You select a plan whether it is a Free Subscription Plan, a Paid Subscription Plan or a Free Trial. Free Subscription Plans shall continue indefinitely from the Start Date unless Provider decides to discontinue the plan at Provider's discretion at any time without prior notice. Paid Subscription Plans shall continue from the Start Date through the initial term specified by the Subscription Plan (the “Initial Term”). At the end of the Initial Term, the Subscription Plan will automatically renew on the day following the last day of the Initial Term (“First Renewal Date”) and will automatically renew thereafter on the first day of each renewal period (“Renewal Period”) as specified by the Subscription Plan, unless Provider discontinues the Subscription Plan and the plan can no longer be renewed; or unless either party provides to the other written or electronic notice of termination in accordance with the terms of this Agreement. The Free Trial, if available, and Initial Term specified by the Start Date and the First Renewal Date of the Subscription Plan, and each subsequent renewal term specified by the First Renewal Date and the Renewal Period of the Subscription Plan are collectively the “Term”.
Right to Terminate Subscription Plan
Customer may select not to renew Subscription Plan prior to the beginning of each renewal term as indicated by the First Renewal Date and the Renewal Period of the Subscription Plan by delivering written or electronic notice of termination at least fifteen (15) days prior to the beginning of each renewal term. Provider or its affiliates may suspend or terminate Customer's Account at any time with or without notice to Customer and without any liability to or recourse of Customer; provided, however, that Provider or its affiliates will refund a pro-rated portion of Customer Subscription Fee, if applicable, unless in Provider determination, there is any breach of the provisions of this Agreement by Customer.
The provisions of the Definitions Section and Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned will survive any termination or expiration of this Agreement.
In the case Provider decides to introduce Paid Subscription Plans Customer will pay to Provider fees in connection with the Subscription Plan selected by Customer to use the Services, Data, and Third Party Data (“Subscription Fees”). Thereafter, Subscription Fees for Customer’s use of the Services, Data and Third Party Data shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Unless otherwise negotiated between You and Provider in an addendum to this agreement, all Subscription Fees are due at the beginning of each subscription term as specified in the Subscription Plan and Provider will charge the method of payment You provide via the Site in the amount of the Subscription Fees in connection with the Subscription Plan that You select. Subscription Fees are non-refundable. Subscription Fees are subject to change at any time without prior notice. Subscription Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder.
Services Overage Fee Adjustment
Provider will notify Customer in writing should Customer exceed its average volume limit associated with a Service over a two (2) week period. Upon notification, Customer will have two (2) weeks to reduce its volume to comply with its current Service volume limitation. Should Customer continue to exceed its Service volume limit, it will be at Provider's discretion to suspend or terminate Customer's Subscription; or upgrade Customer’s current Service level to accommodate the higher volumes and adjust the Subscription Fee accordingly. In the case of upgrading Customer's current Service level, should Customer decline to accept the adjustment, Provider will have the right to terminate Customer's Subscription.
Professional Services Fees
For a Fee, Customer may contract to retain Provider to provide Customer with services such as, but not limited to, consulting services, service provider referral services, and onboarding support as set out in Provider's Site.
Refunds, Cancelations, and Renewals
Subscription Plan Fees and Fees charges for Professional Services are non-refundable.
Subscription Plan cannot be canceled by Customer once the term of the Subscription Plan begins. Customer will only have the option to not renew the Subscription Plan prior to the beginning of the renewal term.
It will be at Provider's discretion to discontinue a Subscription Plan that is in use by Customer at any time without prior notice at which time the discontinued Subscription Plan will remain active for Customer under that Subscription Plan for the duration of the term. Once the term expires, Customer will no longer have the option to renew the discontinued Subscription Plan. Instead, Customer may have the option to select a then active Subscription Plan.
Service Provider Referrals, whether free of charge or for a fee, are offered by Provider on an “as is” basis, without any warranties or representations, express or implied, including, without limitation, warranties of merchantability, accuracy of information provided, non-infringement, or fitness for a particular purpose, quality, or performance, Provider makes no warranty that the Service Provider that Customer is being referred to will meet Customer's specific objectives or needs.
Provider will use its reasonable business efforts to ensure that the Services operate according to the service levels specified except for reasonable service interruptions due to Excusable Delays (defined below) or regularly scheduled maintenance. Provider further agrees that it will use its reasonable business efforts to prevent and/or rapidly respond to and attempt to remedy any interruption to the operation of the Services caused by third parties from unlicensed use, viruses, malicious code, denial of service attacks, or other external tampering with the Services. HOWEVER, UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO OTHER WARRANTY REGARDING THE OPERATION OF THE SERVICES.
Customer will promptly report any errors in the operation of the Services to Provider and will not take any actions that would increase the severity of the error. Customer will use the Services solely as described herein. In the event that Customer violates any of the requirements of this Section, Provider will have no responsibility to provide Support.
Enhancements and Modifications
It will be at Provider's discretion to make enhancements or modifications (“Updates”) to the Services at any time. Such Updates may require Provider to update its Subscription Plans. If applicable, Provider will notify Customer of additional Subscription Plan Fees that may be charged to Customer for the use of Updates by requiring Customer to either purchase an additional Subscription Plan at the time of the Update or upon renewal of Customer's Subscription Plan, and that Provider has sole discretion in identifying which Updates require the payment of additional Subscription Plan Fees and when they will be charged. In the event Customer is allowed to wait to change Subscription Plans upon renewal, should Customer decide to continue to use the Services upon renewal, then new Subscription Plan Fees for Customer’s use of the Services shall be (i) as described and/or as selected by Customer via the Site in connection with purchase to use the Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Customer acknowledges that the introduction of any Updates may affect or impair the operation, functionality, or business purpose of the Services. Updates may remove or alter any function of the Services or any portion the Data or Third Party Data that was available prior to the Update.
WARRANTIES, INDENMITY, AND LIMITATION OF LIABILITY
Indemnification by Customer
Customer agrees, to the fullest extent permitted by law, to defend, indemnify and hold Provider, its employees, directors and officers harmless from and against any and all claims, liabilities, losses, damages, or costs and expenses (including court costs and reasonable attorneys fees) in connection with any violation of this Agreement by Customer and any use or alleged use of the Services or Data under Customer's password by any person, whether or not authorized by Customer. Provider reserves the right to assume the exclusive defense and control, at its own expense, of any matter otherwise subject to indemnification by Customer. In such case, Customer agrees to cooperate with Provider's defense of such claim.
Warranty and Disclaimers
OTHER THAN SPECIFICALLY SET FORTH HEREIN, (i) THE SERVICES, SITE, DATA, AND THIRD PARTY DATA ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION PROVIDED, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR PERFORMANCE, (ii) PROVIDER MAKES NO WARRANTY THAT THE SITE, DATA, OR THIRD PARTY DATA WILL MEET CUSTOMER'S SPECIFIC OBJECTIVES OR NEEDS; (iii) PROVIDER MAKES NO WARRANTY THAT THE SERVICES, SITE, DATA, OR THIRD PARTY DATA WILL BE FREE FROM ERRORS OR BUGS; and (iv) PROVIDER MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE SERVICES, SITE, DATA, AND THIRD PARTY DATA. CUSTOMER ACKNOWLEDGES THAT (i) ANY DATA DOWNLOADED THROUGH THE USE OF THE SERVICES AND SITE IS DONE AT ITS OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH DATA and (ii) THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
Accuracy of Data and Third Party Data
PROVIDER MAKES NO WARRANTY REGARDING THE DATA, THIRD PARTY DATA OR ANY OTHER INFORMATION PURCHASED OR OBTAINED THROUGH PROVIDER’S SITE AND/OR THE SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY DATA, THIRD PARTY DATA OR OTHER INFORMATION OBTAINED THROUGH PROVIDER’S WEBSITE AND/OR THE SERVICES.
Limitation of Liability
IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF THE SERVICES EXCEED ONE (1) MONTH PRORATED SUBSCRIPTION FEES, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILTY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Compliance with Laws and Policies
The parties hereby agree to abide by and comply with all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property).
The parties to this Agreement agree the laws of the State of California, excluding conflict of laws provisions, will govern this Agreement and all matters arising out of or related to this Agreement. The parties to this Agreement hereby submit to the exclusive jurisdiction of state and federal courts located in Ventura County, California and waive any objection based on personal jurisdiction.
Entire Agreement and Severability
This Agreement, including the Subscription Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and Provider respecting the Site, the Services, the Support, the Data, and the Third Party Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter.
Provider and its respective affiliates shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, natural disasters, acts of government, civil or military authority, civil disturbance, riots, acts of war, acts of terrorism, strikes, fires, other catastrophes, network failures, power failures or telecommunications failures or any other cause beyond its reasonable control.
The terms of this Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer, but may be assigned by Provider without restriction.
No waiver by Provider of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby. The headings and captions in the terms of this Agreement are intended for convenience only and shall in no way affect the interpretation of the terms of this Agreement.
Relationship Between the Parties
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
No Third-Party Beneficiaries
This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
The parties may give notice to each other via email, fax or certified mail. Notices sent to Provider should be directed to email@example.com. Notices sent to Customer will be sent to Customer at the email address provided during registration to use the Services.