These Terms of Service (the “Terms of Service” or the “Agreement”) set forth the terms and conditions upon which Glaium, Inc. (“GLAIUM,” “we,” or “us”), a Delaware corporation, makes available its online service (“GLAIUM ” or the “Service”) to you (“Customer” or “you”).
Your license to use the Service is expressly conditioned on your continued compliance with this Agreement. By accessing or using the Service in any way, you become bound by this Agreement. Changes to this Agreement shall only be effective if in writing and signed by both Parties. Subject to Section 21, this Agreement also incorporates the terms of the GLAIUM privacy policy and cookie policy. GLAIUM shall provide Notice to Customer if any change is made to GLAIUM’s privacy policy or cookie policy and any such changes shall apply to Customer upon provision of such Notice.
Glaium may modify the Agreement from time to time as described herein. Your continued use of the Services following such modifications shall constitute your consent to the modified Agreement.
You may not use or access the Services if you are a direct competitor of Glaium unless explicitly agreed by Glaium in writing. Furthermore, you may not use or access the Services for benchmarking or any other competitive purpose.
Definitions
Capitalized terms not otherwise defined in the Agreement shall have the meaning specified in this Section.
“Report” means the various recommendations, messages, documents and analysis reports of End User Data generated through the Service.
“Data Sources” means sources of digital data and information as computer servers, databases, APIs, uploaded files and/or any other application, with respect to which Customer provides GLAIUM access in order to provide the Service.
“Customer Data” as used in this Agreement means any and all data regarding Customer’s end users and/or information generated by proprietary and third-party reporting systems.
“Personal Data” means any information related to an identified or identifiable natural person. For purposes of this definition, a natural person is identifiable if they can be directly or indirectly identified, including by reference to an identifier such as a name, an identification number, location data, an online identifier, or special characteristics which express the physical, physiological, genetic, mental, commercial, cultural or social identity of said natural person.
“Effective Date” means the date when the “Customer” has accepted and agreed to this agreement by clicking the Accept button in my.glaium.io interface, signing a PDF version of this agreement or using the “Service”.
“Plan” means the set of conditions and fees correspondent to the type of subscription selected by the “Customer”.
“Confidential Information” means any and all technical and non-technical information or data (including, without limitation, any aggregated and anonymized data) and any other non-public information disclosed or learnt in connection with this Agreement, whether in printed, textual, oral, graphic, or electronic form, including, without limitation, information relating to patents, trade secrets, techniques, inventions, know-how, processes, algorithms, software programs, software source documents, functional requirements, design details and specifications related to the current, future products and proposed sale of products and services of a party as well as information related to its finances, procurement requirements, purchasing, manufacturing, pricing, customer lists, business forecasts, marketing plans and personnel. All Customer Data is deemed Customer’s Confidential Information.
1. Description of the Service; License to Use Service
1.1. The Service
GLAIUM automatically collects, organizes and generates certain reports (the “Reports”) based on Customer Data (as defined below) from multiple Data Sources (as defined below) (such service, the “Service”), through Glaium’s platform available on the website, web app my.glaium.io, Glaium APIs, Glaium Slack App or any other App or Website operated by Glaium.
1.2 Limited Access to Customer Data; Limited Use of Customer Data
1.2.1. Credentials. In order to provide you with the Service, GLAIUM will use your credentials (e.g. username/password) (“Customer Credentials”) to automatically collect Customer Data from Data Sources. GLAIUM will use Customer Credentials solely for the purpose of accessing the Data Sources in order to provide the Service, and for no other purpose, without the express prior written consent of Customer. Customer Credentials constitute Customer’s Confidential Information as defined in Section 10 (“Confidentiality”) of this Agreement. We will collect data on a regular basis but no assurance can be made that all of the data collected will be current. GLAIUM DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH ANY OBSOLETE OR OUTDATED DATA IT COLLECTS.
1.2.2. Customer’s Data. Access to Customer’s Data Sources through the use of Customers Credentials will be treated at all times as READ-ONLY and GLAIUM will not insert, remove, or in any other way change any contents contained within Customer’s Data Sources. All information accessed by GLAIUM pursuant to this Section 1.2 will be treated as Confidential Information of Customer. For clarity, GLAIUM will at all times conform to industry-standard security safeguards when accessing and using Customer Data as permitted by this Section 1.2. GLAIUM shall at all times have appropriate security measures in place to protect Customer Data in accordance with all applicable laws. GLAIUM will use the Customer Data solely to provide the Service and to analyze users’ behavior for the purpose of improving GLAIUM’s offerings;
1.2.3. GDPR. With respect to Customers that require “user-level” data granularity from the Service, the Service may have the capability to process Personal Data in accordance with the GDPR requirements directly applicable to GLAIUM’s provision of the Service. In the event that Customer is using GLAIUM to track or monitor the behavior of any natural person, Customer must notify GLAIUM immediately in the event such person requests Customer not to track or monitor their behavior or requests any information collected by the Service about such person’s behavior. It is the Customer’s responsibility to disclose to such individuals that GLAIUM is being used for this purpose. This subsection 1.2.3 (GDPR) of this Agreement shall be subject to and shall follow the terms and conditions set forth in the Data Processing Agreement (DPA) located at https://glaium.io/dpa. In the event of any conflict or inconsistency between this subsection and the provisions of the DPA, the terms and conditions of Terms and Conditions shall prevail.
1.2.4. Links. The Service may provide or include links to third-party websites. You acknowledge and agree that GLAIUM is not responsible or liable for: (i) the availability or accuracy of such websites or (ii) the content, products, or services on or available from such websites. Links to such websites do not imply any endorsement by GLAIUM of such websites or the content, products, or services available from such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites.
1.3. Practices and Policies Concerning Usage
You acknowledge and agree that GLAIUM may establish general practices and policies concerning use of the Service, and you shall adhere to any such new or modified practices and policies upon GLAIUM’s provision of Notice to you of such practices and policies or upon GLAIUM’s posting of the same on the site you use to access the Service.
1.4. Partners Offer. Partners Offer is an option provided by GLAIUM allowing Customers who opt in to share portions of a Customer’s Data with designated third parties (“Partners”). Due to the sensitive nature of Customer Data, GLAIUM will share with Partners only the Customer Data that Customer has pre-selected and authorized to be used in connection with Partner Offer. Upon a Customer’s opting in to GLAIUM’s Partner Offer, the following terms shall apply:
1.4.1. GLAIUM will give to the designated Partner access to such Customer’s Customer Data so Partner can generate certain revenue reports for Customer (“Partner Reports”) based on Customer Data.
1.4.2. Partner shall have access to some of Customer’s Data and limited functionalities of the Service. Customer will have the ability to restrict some of the “Apps/Urls” and “DataSources” that Customer does not want to share with the Partner. GLAIUM will collect, access, store, and share Customer Data as agreed upon and permitted by Customer in the Agreement between Customer and GLAIUM. GLAIUM shall not provide any personal information or unauthorized Customer Data of Customer to any Partner. GLAIUM DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGES ARISING FROM PARTNER REPORTS CREATED BY ANY PARTNER AND PROVIDED BY ANY PARTNER TO CUSTOMER.
1.4.3. To authorize a new Partner, Customer must add Partner’s representative’s email address and define the level of access permissions for such representative. The representative will then receive an email from @glaium.io inviting him or her to choose a password in order to have access to the Service. Customer is responsible to add, edit permissions and remove Partner’s representatives from its accounts when Customer wishes to do so. BY AUTHORIZING ANY PARTNER, CUSTOMER IS AUTHORIZING GLAIUM TO SHARE CUSTOMER DATA WITH THAT PARTNER.
2. Billing Terms
This subscription begins on the “Effective Date” and will automatically renew every “Billing Term”. In case of trials the subscription will end on the Trial End Date set forth above unless Customer activates a paid subscription on or before the Trial End Date by paying the initial fee set forth in the “Plan” section above. After activation of a paid subscription, the term (the “Term”) of the subscription will automatically continue, and the Customer will be billed at the frequency defined in the Billing Period section above, until the date that is thirty (30) days after Notice from either party to the other of its election to terminate the subscription, as further detailed below. Your license to use the Service is expressly conditioned on your continued compliance with this Agreement. By accessing or using the Service in any way, you become bound by this Agreement. Changes to this Agreement shall only be effective if in writing and signed by both Parties.
2.1. Term; Payment
2.1.1. Billing Term. The specific billing term of this Agreement is set forth above under “Billing Period.”. For monthly subscriptions, or if the Service is provided on a month-to-month basis, the Billing Period is one (1) month beginning on the Effective Date, and payments will be due each month on that same day if the day of the Effective Date is the 1st through the 28th, or adjusted to the 1st day of the following month for subscriptions initially starting on the 29th, 30th, or 31st day of the month. For annual subscriptions, the period is twelve (12) months beginning on the Effective Date, and fees are billed annually, with payments due on the Effective Date and on each anniversary thereof.
2.1.2. Trial Period. Customer may use the Service at no charge, on a trial basis, for 5 (five) business days after the Effective Date. Unless the Customer activates a paid subscription on or before the end of the trial, the Customer’s access to the Service will be terminated, and all Customer Data will be removed. Customer can activate a paid subscription by paying the subscription fee set forth in the “Plan” section above on or before the Trial End Date.
2.1.3. Subscription Fees. The subscription fee for the Service (the “Subscription Fee”) shall be payable upfront on an annual basis or on a monthly basis, as selected by Customer and set forth in the “Plan” section above. After the Trial Period, Customer shall not have access to the Service unless the initial Subscription Fee has been paid. The amount of the Subscription Fee is based on (i) how many Data Sources Customer wishes GLAIUM to access for the purpose of providing the Service; (ii) the amount of historical data retained by GLAIUM and the time period of such retention, (iii) the number of monthly impressions a Customer has, and (iv) whether Customer elects to commit to an annual or monthly subscription. All payments must be made in US dollars via credit card, in full, without set-off, counterclaim or deduction. No payment will constitute a waiver of any counterclaims, defenses or deductions on the part of the Customer. Each invoice shall be paid within five (5) business days or as otherwise stated therein. In the event Customer fails to pay any amount due to GLAIUM hereunder within five (5) business days after the due date, at GLAIUM’s option and upon prior Notice to Customer, GLAIUM may terminate Customer’s subscription and access to the Service, and GLAIUM may delete all Customer Data (as defined below) and Reports (as defined below).
2.1.4. Monthly Adjustments. The amount of the periodic Subscription Fee may change up to one time per monthly period, based on changes in the numbers and amounts listed in the first paragraph of Section 2.1.3 above. Subscription Fees may be pro-rated and additional pro-rated charges invoiced accordingly. Any adjustments made to either a monthly or annual subscription will be made on the same day each month if the day of the Effective Date is the 1st through the 28th or adjusted to the 1st day of the following month for subscriptions initially starting on the 29th, 30th, or 31st day of the month.
2.1.5. Billing Providers. Glaium may use various billing service providers. When using such a provider’s services, you agree to be subject to, and to comply with, the terms and policies of such provider. Glaium shall not be liable and/or responsible for any acts or omissions of such billing providers.
2.1.6 Taxes or Duties. All fees payable hereunder, do not include any local, state, or federal sales, use, excise, personal property, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by you. For the avoidance of doubt, you shall not be responsible for any payment of taxes based on Glaium’s net income.
3. License to Use Service
Subject to the terms and conditions of this Agreement, GLAIUM hereby grants to Customer as of the Effective Date a non-exclusive, non-sublicensable, non-transferable and limited license to use the Service solely for the purposes described herein.
4. Creation of Account
4.1. Account. To access the Service you must create a user account.
4.2. Password Confidentiality. The password and sign-in details provided by you are confidential to you, and you hereby agree that you shall not share such information with any third parties. You shall notify GLAIUM forthwith if you are aware of any third-party having access to such information.
5. Responsibility for Data
We will use commercially reasonable efforts to provide the Service on an error-free basis, but we cannot guarantee that the Customer Data or Reports will not ever be deleted or inaccessible within the platform. You acknowledge and agree that GLAIUM will not be responsible for any failure of the Service to convert Customer Data or store Customer Data or Reports. You acknowledge and agree that GLAIUM will not be responsible for the deletion by the Customer or any third party of Customer Data or Reports stored or processed during the provision of the Service, or for the corruption of or deletion of any data, information or content contained in Customer Data or Reports caused by Customer or any third party. You bear full responsibility for archiving and backing up your Customer Data and Reports and sole liability for any inaccessible or irrecoverable Customer Data or Reports.
6. Privacy Policy and Cookie Policy
GLAIUM respects the privacy of others. This Agreement incorporates the terms of the GLAIUM Privacy Policy located at https://glaium.io/privacy-policy/ and the GLAIUM Cookie Policy located at https://glaium.io/cookie-policy/.
7. Copyright Policy
Unauthorized copying, modification, distribution, public display, or public performance of a copyrighted work obtained through use of the Service is expressly prohibited hereunder. GLAIUM may, at its discretion, remove content, disable and/or terminate the accounts of users and/or deny users future access to the Service, if GLAIUM believes that such users may be infringing the intellectual property rights of others, including GLAIUM, or otherwise potentially expose GLAIUM to civil or criminal liability.
8. Proprietary Rights
All right, title, and interest in and to the Service are and will remain the exclusive property of GLAIUM, subject to the limited license granted to Customer hereunder. Except as expressly permitted in this Agreement, Customer may not reproduce, modify, distribute, sell, transfer, or otherwise use the Service. You acknowledge that all content, intellectual property, and materials provided in connection with the Service, including but not limited to any and all products, content, images, trademarks, service marks, logos, product names, trade names, graphics, sounds, graphical user interfaces, and software (collectively “Materials”), are provided either by GLAIUM or by its third party authors, developers and vendors (collectively “Third-Party Providers”) and the underlying intellectual property rights therein are owned by GLAIUM and/or its Third Party Providers. Except as explicitly set forth herein, you may not reproduce, modify, distribute, sell, transfer, or otherwise use any Materials without the prior written consent of GLAIUM or the applicable Third-Party Providers, as the case may be. Notwithstanding the foregoing, neither GLAIUM nor its Third-Party Providers has any right, title, or interest in any materials uploaded by users or directly derived from materials uploaded by users, or in any Customer Data, other than GLAIUM’s right to use the same solely in the course of providing the Service as contemplated hereby.
9. Ownership and Use of Customer Data
GLAIUM has no ownership interest in any Customer Data or the content of the resulting Reports, and as between GLAIUM and Customer, Customer shall retain all ownership rights therein; provided, however, that, notwithstanding the foregoing,
9.1. GLAIUM has the limited right to use Customer Data to provide the Service as contemplated hereby; and
9.2. With respect to any Customer that has opted in to GLAIUM’s Performance Index offering, GLAIUM shall own such Customer Data as is or has been used by GLAIUM to create and sell any industry-specific performance reports (which reports shall not identify any particular Customer).
10. Confidentiality
Each party shall (a) use any disclosing party’s Confidential Information only as necessary to fulfill its obligations hereunder, (b) hold the disclosing party’s Confidential Information in strict confidence, and (c) not disclose the disclosing party’s Confidential Information to any third parties, except to those of its employees or contractors who need to know such information to perform the receiving party’s obligations hereunder and who have previously agreed in writing to protect third party confidential information. A receiving party shall either deliver promptly to the disclosing party or destroy promptly (and certify the completion of such destruction to the disclosing party) all Confidential Information and all copies thereof in the receiving party’s possession at any time upon the disclosing party’s request and upon the termination of this Agreement. The above obligations will not apply to Confidential Information which is already known to the receiving party at the time it is disclosed or which:
(i) has become publicly known through no wrongful act of the receiving party;
(ii) has been rightfully received from a third party without restriction on disclosure and without breach of this Agreement or other agreements entered into by the receiving party;
(iii) has been independently developed by the receiving party; or
(iv) has been approved in writing for release by the disclosing party prior to disclosure. If the receiving party receives a court order or is otherwise required by law to disclose any Confidential Information, the receiving party shall (y) notify the disclosing party immediately upon receipt of such court order or other document requiring disclosure, such that the disclosing party has time to object and move for a protective order, and (z) regarding any Confidential Information to be filed with a court, file it under seal and/or request that the court seal such Confidential Information prior to the receiving party’s disclosure. Except as may be required by such court order or law, the receiving party’s obligations with regard to such Confidential Information as set forth above will remain in full force and effect. The receiving party acquires no licenses or other rights to the Confidential Information of the disclosing party under this Agreement.
11. Termination
The terms set forth in this T&C shall be in force for as long as the Plan is in effect.
11.1. At the end of the Subscription Package term specified in your Plan, your Subscription Package under such Plan will automatically renew pursuant to the same terms and conditions, unless otherwise explicitly stated in the Plan or if either party provides the other with written notice 45 (forty-five) days prior to the end of the then applicable Subscription Package term. In the event any Plan is executed by you for additional Services (an “Additional Order”) during any existing Subscription Package term or renewal Subscription Package Term, you agree that the Subscription Package term of such Additional Order shall be prorated to be in alignment with the existing Subscription Package term or renewal Subscription Package term so that the termination of all current and existing Subscription Package terms and all subsequent renewal Subscription Package terms shall coincide to take effect on the same date. Applicable fees shall be prorated in accordance with any pro-rated Subscription Package term or Renewal Subscription Package term. Notwithstanding the foregoing, except if otherwise specified in the Plan: (i) the fees for each unit of pricing during any renewed Subscription Package term may be increased by up to 7% (seven percent) of the applicable fees in the immediately preceding Subscription Package term; and (ii) any free period provided during the expiring Subscription Package shall not apply to the renewed Subscription Package term.
11.2. Each party may terminate the Agreement upon written notice if the other party is in material breach of the terms of the Agreement, and such breach is not cured within 30 (thirty) days from the receipt of written notice of such breach. Furthermore, Glaium shall have a right to immediately suspend the Services in the event of: (i) non-payment; (ii) any breach by you of Sections 3-5 of these T&C; or (iii) if required to avoid harm to Glaium or any third party.
11.3. Upon any termination or expiration of the Agreement, Glaium will cease providing the Services to you, and you will delete all copies of the Codes from all webpages, systems and Applications under your control or your account. In the event of any termination: (a) you will not be entitled to any refund of any fees for Services not yet rendered through the date of termination (except where explicitly stated otherwise in an Order Form); and (b) any: (i) outstanding balance through the date of termination; and (ii) other unpaid payment obligations will be immediately due and payable in full. Any obligations of the parties that by their nature are intended to survive the termination or expiration of the Agreement, including the obligations of the parties in all the Sections of this T&C, shall survive any termination or expiration thereof.
12. General Prohibitions
As a condition to your use of the Service, you agree not to:
12.1. Upload or transmit or cause us to upload or transmit (in connection with providing the Service) as part of the Customer Content or otherwise any data, text, graphics, content, or material that: (i) could create liability for being false or misleading; (ii) is defamatory; (iii) invades another’s privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred, or harm against any individual or group; (vi) infringes another’s rights, including any intellectual property rights; (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (viii) spreads messages of terror or depicts torture; (ix) harms minors in any way, this includes any form of child pornography; or (x) promotes illegal activity, including but not limited to, gambling and the offering for sale of illegal weapons;
12.2. Upload or cause us to upload (in connection with providing the Service) any information containing personal data or subject to any other privacy laws, rules or regulations, including, without limitation, the Health Insurance Portability and Accountability Act (HIPAA) and the European Data Protection Directive [EC/95/46], as the same may hereafter be amended, modified or changed;
12.3. Attempt to probe, scan, or test the vulnerability of the Service or any related system or network or breach any security or authentication measures;
12.4. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
12.5. Impersonate or misrepresent your affiliation with any person or entity;
12.6. Access, tamper with, or use any non-public areas of the Service, the GLAIUM servers, or the technical delivery systems of GLAIUM providers;
12.7. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Service; or
12.8. Misuse system resources including, but not limited to, employing content which consume excessive CPU time or storage space; utilizing excessive bandwidth; or reselling access to content hosted on our servers.
GLAIUM will have the right to investigate and prosecute violations of any of the above, including infringement of intellectual property rights, breach of confidentiality provisions, and security-related issues, to the fullest extent permitted by law including, in addition to any other relief and remedies available to it, preliminary and final injunctive relief to enforce the provisions of this Agreement. GLAIUM may involve and cooperate with law enforcement authorities in prosecuting persons who violate this Agreement or applicable law.
GLAIUM does not monitor your access to or use of the Service and has no obligation to do so. However, GLAIUM has the right to do so for any legitimate purpose including, but not limited to, operating the Service, ensuring your compliance with this Agreement, and complying with applicable law or any order or requirement of a court, administrative agency, or other governmental body.
13. Agencies and Partners
13.1. If you are an agency or a party representing, or providing services for the benefit of, a third party (“Agency Client“), you represent and warrant that you are authorized to act on behalf of, and bind to this Agreement, that Agency Client (and upon our request shall provide evidence thereof). You further represent and warrant that such Agency Client has provided you with explicit permission to collect on its behalf and view Customer Data and that you shall use such Customer Data strictly in accordance with the permissions provided to you by such Agency Client and the terms of this Agreement. You shall ensure that each Agency Client agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 6 (Privacy). You acknowledge and agree that: (i) Glaium makes no representations or warranties for the direct or indirect benefit of any Agency Client; and (ii) you will not make any representations or warranties to such Agency Client on behalf of Glaium. You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Glaium, the Services, or use thereof. You agree to indemnify, hold harmless and defend Glaium, from and against any claims or actions and any related liability arising out of or relating to: (a) any representations and warranties made by you concerning any aspect of the Services to an Agency Client; (b) any claims made by or on behalf of any Agency Client pertaining directly or indirectly to your use of the Services; and (c) any claims with respect to acts or omissions of an Agency Client in connection with the Services.
13.2. The Services enable you to data, measures, analysis and reports of certain third parties that you work with (“Partners“). For such purpose, you may, through your configuration of the Services, direct Glaium to share End User Data with, and receive data related to, End Users from Partners (“Shared Data“). Pursuant to the foregoing, you hereby grant Glaium the right to share Shared Data with Partners and to obtain and process Shared Data from Partners. Customer acknowledges and agrees that: (i) the sharing of such Shared Data between Glaium and Partners shall be enabled only to the extent supported by the Partner and Glaium; (ii) any use of Shared Data by a Partner shall be subject to your own agreements with Partner; (iii) Glaium shall have no liability or responsibility in connection with any actions or omissions by Partners; (iv) any use or processing of Shared Data may be subject to certain limitations and restrictions imposed by Partners including requirements by Partners to delete Shared Data they share with Glaium after a certain period of time; and (v) that you will indemnify, hold harmless and defend Glaium from and against any claims or actions or any related liabilities arising from your instructions to share Shared Data with a Partner. For the purpose of the Agreement the term “End User Data” shall include Shared Data.
14. Disclaimer of Warranties
THE SERVICE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, GLAIUM EXPLICITLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND OTHER TERMS (INCLUDING WITHOUT LIMITATION, WARRANTIES REGARDING SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT). GLAIUM MAKES NO WARRANTY (I) REGARDING THE ACCURACY, SECURITY, QUALITY OR NATURE OF INFORMATION THAT MAY BE OBTAINED BY USER THROUGH THE USE OF THE SERVICE, (II) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. YOU ACKNOWL AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT GLAIUM WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT YOU MAY INCUR IN CONNECTION THEREWITH, INCLUDING BUT NOT LIMITED TO DAMAGES TO YOUR COMPUTER SYSTEM OR TO THE COMPUTER SYSTEM OF ANY THIRD PARTY. IF WE PROVIDE ADVICE OR INFORMATION ON WAYS TO USE THE SERVICE OR WAYS IN WHICH YOUR USE OF THE SERVICE MAY BE IMPROVED, WE DO NOT THEREBY PROVIDE ANY GUARANTEES.
15. Severability
In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
16. Indemnity
Each party hereto shall defend, indemnify, and hold the other Party and its affiliates, officers, managers, directors, employees, agents, members and stockholders (the “Indemnified Parties”), harmless from and against any and all claims, causes of action, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) associated with a breach of its warranties and covenants as set forth in this Agreement or any third-party claim related to such a breach. Each party shall also be liable under this section for actions and omissions of third parties acting under its instruction.
17. Limitation of Liability and Damages
EXCEPT FOR BREACHES OF SECTION 10 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS OR PARTNERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY YOU TO GLAIUM HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
18. Notice
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and shall be deemed to have been given on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Notices must be sent to the respective parties at the following email addresses (or at such other address for a party as shall be specified in a Notice given in accordance with this Section 18).
If to GLAIUM: legal@glaium.io.
If to Customer: the email address of Account’s owner.
19. Waiver
The failure of either party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
20. Controlling Law; Jurisdiction and Arbitration
20.1. Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, will be governed by the laws of the Commonwealth of Massachusetts (notwithstanding its choice of law provisions). This Agreement is not governed by the U.N. Convention on Contracts for the International Sale of Goods.
20.2. Jurisdiction. Subject to Section 20.3 below, the parties hereby consent and submit to the exclusive (subject to the paragraph below) jurisdiction and venue of the state and federal courts located in Boston, Massachusetts in connection with any actions or proceedings arising out of or relating to this Agreement. Subject to Section 20.3 below, for the exclusive benefit of GLAIUM and to the extent possible in the applicable jurisdiction, GLAIUM shall retain the right to bring proceedings as to the substance of the matter in the courts of the country of your residence or, where these terms and conditions are entered into in the course of your trade or profession, the country of the place of business in which you agreed to these terms and conditions or (if different) the country of your principal place of business.
20.3. Arbitration
20.3.1. In the event of any dispute or claim arising out of or relating to any provision of this Agreement or any breach thereof, the parties will use reasonable commercial efforts to settle such conflict amicably.
20.3.2. If the parties fail to amicably resolve a dispute within 30 days following the date on which a party notifies the other of the dispute, either party may initiate a demand for arbitration under the Commercial Rules of the American Arbitration Association (including but not limited to the International Commercial Arbitration Supplementary Procedures, as applicable) (the “Rules”).
20.3.3. Except as set forth herein, the dispute will be arbitrated in accordance with the Rules. The arbitration shall be conducted before one arbitrator selected in accordance with the Rules.
20.3.4. The arbitration shall be held in Boston, Massachusetts, United States, and the language of the arbitration shall be English. The arbitration will be final and binding and may be enforced in any court of competent jurisdiction.
20.3.5. Nothing herein shall prevent or delay a party from seeking a preliminary injunction.
21. Entire Agreement
This Agreement is the entire and exclusive agreement between GLAIUM and you regarding the Service, and this Agreement supersedes and replaces any prior agreements between GLAIUM and you regarding the Service. To the extent this Agreement conflicts with any current or later implemented GLAIUM privacy policy or cookie policy, such policy shall control. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other GLAIUM products or services, affiliate services or third-party content software or services. Please be aware that GLAIUM reserves the right to cancel any transmission it finds in violation of any of the above policies.
22. Miscellaneous
22.1. Relationship. Customer and GLAIUM are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
22.2. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to any successor to all or substantially all of its business (whether by sale of assets or equity, merger, consolidation or otherwise) without the consent of the other party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
22.3. Force Majeure. Operation of our Service may be interrupted with by numerous factors outside of our control. GLAIUM is not responsible or liable for any delay or failure in performance under this Agreement is caused by or results from acts or events beyond GLAIUM’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power.
22.4. Confidential Information. You represent and warrant to GLAIUM that (i) you are not a competitor of GLAIUM, (ii) you shall keep all nonpublic information and materials pertaining to GLAIUM, including but not limited to pre-release software, testing, and testing procedures strictly confidential, and (iii) you shall not use any information gained from access to the Service or use of the Service to compete with GLAIUM.
BY CLICKING ON THE “ACCEPT” BUTTON IN THE MY.GLAIUM.IO ENVIRONMENT, SIGNING A PDF VERSION OF THIS DOCUMENT OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF SERVICE ON BEHALF OF LICENSEE. IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THE TERMS OF THESE TERMS OF SERVICE ON ITS BEHALF. IF LICENSEE DOES NOT AGREE WITH ANY PROVISION OF THE TERMS OF SERVICE, OR YOU DO NOT HAVE THE AUTHORITY TO BIND LICENSEE, YOU MUST CLICK THE “CANCEL” BUTTON AND MAY NOT ACCESS OR USE THE SERVICE IN ANY MANNER FOR ANY PURPOSE.