THIS AGREEMENT CONTAINS A DISCLAIMER OF WARRANTIES (SECTION 12), A LIMITATION OF LIABILITY (SECTION 13), INDEMNIFICATION OBLIGATIONS (SECTION 14) AND A CHOICE OF VENUE CLAUSE (SECTION 17).
1. Nature of this Agreement
This Agreement governs your use of the GleanView online, cloud-based service and platform, which you are accessing at https://app.gleanview.com/ (the "Service"). IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS.
If you are entering into this Agreement on behalf of a company or other legal entity, you are representing that you have the authority to bind the company or entity. In that case, the terms "you" and "your" in this Agreement refer to the company or entity.
2. Who you are contracting with
GleanView, LLC ("GW" or "we," "us" and "our") is the provider of the Service, regardless of the point at which you access the Service. We are a Florida limited liability company, with an address at 405 Golfway West Drive, Suite 302, St. Augustine, FL 32095. You may send all notices to that address to the attention of William Calhoun, or by email to firstname.lastname@example.org.
3. Changes to this Agreement
GW reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance of the modified and additional terms and conditions.
4. Purchased Service
We will make the Service available to you pursuant to this Agreement. GW may from time to time, in its absolute and sole discretion, issue new releases or versions of the Service. You agree that your subscription to the Service is neither contingent on the delivery of any future features, functionality or updates, nor dependent on any oral or written public comments made by us regarding future features, functionality or updates.
5. Your use of the Services
A. The Service consists of software running remotely on servers controlled by us and hosted by an unrelated third party. You have no right to receive either an object code or source code version of the software operating on the remote servers. Your usage rights are limited to accessing the Service via a designated portal using username(s) and password(s) provided to you by GW.
B. We authorize you to permit use by the number of users included in your Subscription Plan to whom we have supplied usernames and passwords to access the Service ("Users"). You are solely responsible for maintaining the confidentiality and security of usernames and passwords. Neither you nor any User may share usernames and passwords. Users may access the Software solely for purposes related to your business, and not for any other business or purpose, including re-offering the Service to third parties. Only your agents and employees may be Users. You may not access the Service if you are a direct competitor of GW.
C. You represent that you have provided GW with accurate and complete information when registering with GW, and you agree to update this information to keep it accurate and complete. You represent that each User for whom you have applied for a username and password is your agent or employee. You represent that neither you nor any of the Users for whom you have applied for a username and password is on any list maintained by the United States government of persons or entities (a) prohibited from receiving exports or (b) otherwise identified in connection with terrorism or U.S. national security concerns.
D. You and your agents and representatives, including all Users, must comply with all applicable laws in connection with accessing the Service, including all laws involving private data and applicable export controls. You will be responsible for ensuring that each of your agents and representatives, including all Users, abides by the provisions contained in this Agreement. You are responsible for all User activity while accessing or using the Service. You may not make the Service available to anyone other than Users or assist anyone in attempting to gain unauthorized access. If you become aware of any unauthorized access to the Service or breach of security of usernames or passwords, you must notify us promptly.
E. You may not (i) use the Service to store or transmit infringing, libelous, obscene or otherwise tortious or unlawful material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (ii) use the Service to store or transmit any computer viruses, "time bombs," "Trojan Horses," "worms" or any other malicious agents, code, files, programs, routines, scripts or software, (iii) interfere with or disrupt the integrity or performance of the Service or data contained on the Service, or (iv) load test the Service in order to test scalability.
F. You may not use the Services for the transmission of “spam” or unsolicited mass email - as defined on the Spamhaus website. You may not use the services in any manner such that your email bounce, abuse, or unsubscribe rates move above GV’s acceptable use limits.
G. GW may suspend or terminate your or any User’s access to the Service if such use is disrupting or causing harm to GW, the Service or GW’s computer systems, or is in violation of, or likely to violate, any applicable laws or any of the terms and conditions of this Agreement.
H. Use of the Service requires compatible devices, Internet access, and certain software (fees may apply); may require periodic updates; and may be affected by the performance of these factors.
I. “Free Services” means any access to the Service that we provide to you on an unpaid or trial basis. We may suspend, limit or terminate access to the Free Services at any time for any reason without notice. We may terminate your access to Free Services due to inactivity. We may make changes that limit the features and functionality of the Free Services at our sole discretion without notice to you.
6. Subscription fees; Payment
A. Your access to the Service is subject to your payment of the applicable subscription fees to GW, as specified in your Subscription Plan. Except as otherwise agreed with you in writing, (i) fees are quoted and payable in United States dollars, (ii) fees are based on the purchase of access to the Service, and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable.
B. You must pay subscription fees prior to the Activation Date, and thereafter on the first day of each succeeding month (if you have a monthly Subscription Plan) or on each anniversary of the Activation Date (if you have an annual Subscription Plan). The "Activation Date" is the date that GW first makes the Service available to you and provides you with email or written notice of such availability. If you have not paid applicable subscription fees within ten (10) days after the first day of each month (if you have a monthly Subscription Plan) or ten (10) days after an anniversary of the Activation Date (if you have an annual Subscription Plan), GW may suspend your access to the Service.
C. Where applicable, you will provide GW with valid and updated credit card information, or with a valid purchase order or alternative written document reasonably acceptable when you. If you provide credit card information to us, you authorize us to charge your credit card for the Service purchased for the initial subscription period and all renewal periods. SUBSCRIPTION PERIODS RENEW AUTOMATICALLY AS DESCRIBED IN PARAGRAPH 11 (TERM OF THIS AGREEMENT; SUSPENSION OR TERMINATION OF THE SERVICE). If we agree in writing that payment will be by a method other than credit card, we will invoice you for the subscription fees. You are responsible for maintaining complete and accurate billing and contact information.
D. If subscription fees are not received from you by the applicable due date, then we may (at our discretion) accrue an interest charge for late payment equal to 1.0% per month, calculated on the outstanding late balance, or the maximum rate permitted by law, whichever is less, from the date such payment was due.
E. Unless otherwise stated, the subscription fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any governmental body in any jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchase of the Service. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice the appropriate amount to you, and you must pay the invoice within thirty (30) days of the date of the invoice, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Our responsibilities
A. We will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned downtime for maintenance and system upgrades (of which we will provide at least 24 hours’ notice via the email address we have on record for your administrator. We will attempt to schedule such downtime to the extent practicable from 9:00 p.m. prevailing Eastern Time on Saturdays to 8:00 a.m. prevailing Eastern Time on Sundays.
B. Access to the Service may unavailable as the result of actions of or interference by governmental or other regulatory authorities, acts of God (including floods, hurricanes and other acts of nature), acts of terrorism, fire, labor disturbance, wars, riots or other civil disturbances, communications and Internet failures, and other events beyond GW’s control. In such circumstances, GW will not be in breach or violation of this Agreement.
8. Intellectual property ownership
A. This is a subscription to a service and not a license. No rights are granted to you except as expressly described in this Agreement.
B. GW owns and will own and retain all interest, right and title in and to the Service (including all scripts and software used to implement the Service), and all copyrights, patents, service marks, trademarks, trade secrets and other intellectual property rights ("Intellectual Property Rights") and Confidential Information related to the Service (defined below).
C. You may not take any action to interfere with, jeopardize or limit GW’s ownership of the Service or the Intellectual Property Rights or Confidential Information related to the Service. GW reserves all rights in the Service and in the Intellectual Property Rights and Confidential Information related to the Service.
D. You may not reproduce all or any portion of the Service (including all or any scripts and/or software used to implement the Service) in any form or by any means. You may not adapt, convert, copy, create derivative works from, decompile, disassemble, frame, mirror, reverse engineer, or translate all or any portion of the Service (including any scripts and software used to implement the Service, and any content, features and functions available on the Service), or re-offer the Service as a service to third parties, or knowingly permit any other entity or person to do so.
E. Please do not send unsolicited ideas to us, including ideas for features, processes, product improvements, marketing ideas, products or product names, promotions or software code. Neither we nor any of our employees accept or consider unsolicited ideas. This policy is intended to avoid misunderstandings or disputes when our products, services, or marketing strategies seem similar to unsolicited ideas that were submitted by users of the Service. If you send us unsolicited ideas anyway, then regardless of what your submission states, your ideas will automatically become our property, without compensation to you; you hereby assign all of your right, title and interest in and to such ideas to us; and we can use the ideas for any purpose and in any way without any obligation to you.
9. Your Data; Limited license to GW
A. Your data, User data and the data of your customers, including all data that you or any User inputs into the Service (collectively, "Your Data") will remain your property (or the property of the applicable User or customer). You accept full responsibility for all of Your Data. Neither you nor or any User may input any material that is defamatory, illegal, indecent, infringing, invasive of personal privacy (including as a result of privacy laws), misleading, profane, in poor taste or otherwise objectionable ("Objectionable Material"). GW reserves the right to remove Objectionable Material.
B. You will be responsible for archiving, backup and preservation of all and any User Data, all documentation generated by the Service at your request, all emails generated by the Service, and all documents stored in the Service. Upon your reasonable request, and to the extent available, GW will provide you any backup that GW has of Your Data, in GW’s standard format, but GW takes no responsibility for creating or maintaining any backup of Your Data or any such emails or documents.
C. You hereby grant to GW a perpetual, non-exclusive, non-assignable, non-transferable and royalty free license to copy, distribute, store, transmit and use Your Data, solely for the following purposes: (1) to provide the Service to you, and (2) to the extent we de-identify the User Data, for statistical reporting purposes, including anonymous statistical data regarding the function and use of the Service for purposes of marketing the Service.
10. Data Protection; Data Processing
A. For the purpose of this clause, (“Data Protection Legislation”) shall mean the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) as amended or superseded, the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679 (“GDPR”) (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals. (“Personal Data”), (“Process/Processing”), (“Controller”), (“Processor”) and (“Personal Data Breach”) each shall have the meaning given to it in the GDPR.
B. Each party shall each comply with their respective obligations under the applicable Data Protection Legislation (if applicable). To the extent that we Process Personal Data on your behalf when you use the Service, you acknowledge that we are a Processor and you are the Controller. We will only Process that data to perform our obligations under this Agreement or other documented instructions and for no other purpose save to the limited extent required by law.=
C. As the Processor, we shall implement appropriate technical and organizational measures in such a manner as is designed to ensure the protection of the rights of the data subject and to ensure a level of security appropriate to the risk.
D. You acknowledge and agree that the Service provided by us gives you, not GW, control over access, additions, deletions, modifications and monitoring of Personal Data and that, accordingly: (i) the core activities of GW do not involve any monitoring of a data subject; and (ii) GW does not have actual knowledge of the type of Personal Data that you may host using the GW Service.
E. We will from time to time engage third party sub-processors (“Third Party Service Providers”), to carry out our Processing obligations under this Agreement. You hereby authorize GV to use the Third Party Service Providers listed here as Amazon Web Services the (“Third Party Service Provider List”). We shall remain liable to you for the performance of the Third Party Service Provider’s obligations. We shall notify you by email of any intended changes concerning the addition or replacement of Third Party Service Providers, such notification shall be by notifying you of a change to the Third Party Services Providers List (“Change Notification”) and it shall be your responsibility to check that list for details of the change. If you object reasonably to the change then you must inform us within 14 days of the Change Notification. If the Parties cannot resolve the objection then you shall have the right to terminate the relevant Service affected by the Change Notification.
F. For the avoidance of doubt, GW shall be entitled to collect anonymous and/or aggregated data regarding your use of the Services, provided that no individual natural person can be identified from such data (“Aggregate Data”). GW shall own all right, title and interest in and to the Aggregate Data and GW shall not be required to Process such data in accordance with Data Protection Legislation.
G. On termination or expiry of this Agreement, you have the option by written notice to GV within 14 calendar days of the date of expiry of the Agreement require GV to: (i) return a copy all User Data to you in GV’s standard format; and (ii) delete and procure the deletion of all copies of User Data. GW shall promptly and in any event within 90 days of the date of cessation of the Services, delete and procure the deletion of your Personal Data, including any Personal Data held in backups unless required to retain it by law.
H. We will ensure that all persons authorized to access your Personal Data are subject to obligations of confidentiality.
I. We shall make available to you, at your sole cost and on request, all information reasonably necessary to demonstrate compliance with Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you. In particular, GW shall inform you if, in our opinion, an instruction infringes Data Protection Legislation.
J. Taking into account the nature of the processing, at your cost, we will provide assistance to you, in connection with the fulfilment of your obligation to respond to requests for the exercise of data subjects’ rights pursuant to Chapter III of the GDPR to the extent applicable.
K. At your cost, we shall provide you with assistance in ensuring compliance with Articles 32 to 36 (inclusive) of the GDPR to the extent applicable to you, taking into account the nature of the Processing and the information available to us.
L. Since it is you (not GW) who retains control over the access, additions, deletions, modifications and monitoring of Personal Data using the Service, you will be responsible in the first instance to respond to such requests of data subjects. GW will assist you to comply requests to exercise data subject rights under Data Protection Legislation by: (i) where the request relates to the right of erasure under Article 17 GDPR, by assisting you to delete the Personal Data where it is not possible for you to do so yourself, unless otherwise required by law. You acknowledge, and will notify the relevant data subjects, that GW has a 90 day’ cycle in relation to the deletion of its backups, but GW agrees that it shall not recover or restore the data contained in such backups in a manner that would affect the data subject during the interim period until such time as it is irretrievable.
M. GW will notify you without undue delay, and in any event within (48) hours upon becoming aware of a Personal Data Breach in respect of Personal Data it processes on behalf of you in writing if we become aware of a Personal Data Breach.
N. GW will allow you (or its appointed third party auditor) to conduct an audit of compliance of our Processing activities applicable to the Services provided to you pursuant to this Agreement no more frequently than once per year during the term and on an at least 30 days’ notice to GW in advance (provided that we shall be entitled to require that any third party auditor appointed to conduct such an audit enters into a confidentiality agreement with GW prior to such audit being conducted). [Such notice shall include a detailed proposed audit plan describing the proposed scope, duration and start date of the audit. We will review the proposed audit plan and provide you with any concerns or questions and work cooperatively with you to agree on a final audit plan. Where assistance requested from GW in conjunction with such audit requires the use of resources different from or in addition to those required of GW under this Agreement, you shall pay for such additional resources at GW’s then current rates.]
O. You acknowledge and agree that the use of the GW service requires that Personal Data be processed and hosted in the United States of America. Where your Personal Data is transferred outside the EEA, GW will ensure that there is the existence of an adequacy decision by the Commission or adequate safeguards are in place in compliance with the GDPR (for instance in respect of AWS, GW will rely on the Privacy Shield).
P. The type of Personal Data and categories of data subjects which GW may have access to will depend on the Personal Data you input into the Service and may include both Personal Data and special category data as defined in the GDPR. The nature/purpose of the Processing is to enable GW to provide its Services to you. The duration of the Processing will be the term set out for the provision of the relevant Service.
11. Term of this Agreement; Suspension or Termination of the Service
A. The initial term of this Agreement commences on the date you create an account and ends on the last day of your subscription period under your Subscription Plan, subject to earlier termination and survival of certain provisions as described in this Agreement. Subject to payment of the applicable subscription fees, this Agreement will automatically renew for successive subscription periods in accordance with your Subscription Plan at the end of the current subscription period, unless you provide us with notice of non-renewal at least 2 business days before the applicable renewal date. Applicable pricing will continue unchanged from the previous subscription period unless we notify you of changes in pricing at least 3 business days prior to the applicable renewal date.
B. GW reserves the right to terminate this Agreement at the end of any subscription period, so long as GW provides you with notice of termination at least 3 business days before the end of the current subscription period.
C. If GW determines that you or any of your agents, your representatives or Users have violated this Agreement or the other Terms (including your failure to timely pay subscription fees), GW may immediately (a) suspend your and your Users’ access to the Service until the violation has been remedied or (b) terminate this Agreement, and your and your Users’ access to the Service.
D. Either party may terminate this Agreement if the other party becomes subject to any bankruptcy or other proceeding relating to an assignment for the benefit of creditors, insolvency, liquidation, or receivership.
E. If this Agreement expires, is not renewed or is terminated for any reason, the following provisions will nevertheless survive expiration, non-renewal or termination: (i) all definitions, (ii) your accrued financial obligations to GW, if any, and (iii) the following sections and paragraphs: 8 (Intellectual Property), 9 (Your Data; Limited License to GW), this 10.E, 12 (Privacy and Confidential Information), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 15 (Indemnification), 17 (Notices), 18 (Venue and Governing Law) and 20 (Miscellaneous).
12. Privacy and Confidential Information
B. As used in this Agreement, "Confidential Information" means any confidential or proprietary information owned, possessed or utilized by a person or entity, whether or not specifically labeled or identified as "confidential," in any form or medium, with respect to the affairs, business, products, research and development, or services of such person or entity, including algorithms; books and records; business methods and plans; compilations; concepts; cost information; customer information, documentation and lists; data (including data analysis techniques) and databases (including architectures, structures, systems and technologies); designs; details of contracts (including contracts with agents, customers, employees, independent contractors, suppliers and vendors); discoveries; distribution channels; drawings; financial information and data (including budgets, financial statements, forecasts and projections); formulae; graphics; improvements; instructions; intellectual property; inventions; know-how; marketing methods; methodologies; operational methods; pricing information (including price lists and pricing policies); procedures; processes; products and product development plans and techniques; recipes; research and development (including past, current and planned); software (including software as a service); specifications; strategies; technical information; techniques; technology; test results; and all other information developed and used by the a person or entity in its business operations, and all documentation and media constituting, describing or arising out of each of the foregoing.
C. You and GW agree that to the extent you or GW receives Confidential Information (the "Receiving Party") of the other party (the "Disclosing Party"), the Receiving Party will not disclose, divulge, furnish, reveal or make available any of the Confidential Information of the Disclosing Party to any entity or person, or use such Confidential Information (a) without the Disclosing Party’s prior written consent, or (b) in connection with any activity or business other than that of the Disclosing Party. However, this provision will not apply to information that (i) is at the time of disclosure a part of the public domain or thereafter becomes a part of the public domain through no violation of this Agreement, (ii) was in the possession of the Receiving Party prior to its disclosure, (iii) is acquired by the Receiving Party through a third party under no obligation of confidence to the Disclosing Party, (iv) is independently developed by the Receiving Party without the benefit or use of the Disclosing Party’s information as evidenced by such receiving Party’s written records or in violation of any agreement, or (v) is required to be disclosed by law, regulation or valid court or governmental order but only to the extent required by such law, regulation or order and only if the Receiving Party first notifies the Disclosing Party, to the extent permitted, of the law, regulation or order and permits the Disclosing Party to seek a protective order or other relief from disclosure.
13. DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED "AS IS," "AS AVAILABLE," AND GW MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE. GW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF MERCHANTABILITY AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. GW IS NOT RESPONSIBLE FOR ANY SOFTWARE INSTALLED ON YOUR OR ANY USER’S COMPUTER SYSTEMS, INCLUDING ANY SOFTWARE USED TO ACCESS THE INTERNET, ELECTRONIC MAIL AND/OR THE SERVICE.
14. LIMITATION OF LIABILITY
USE OF THE SERVICE IS AT YOUR OWN RISK. IN NO EVENT WILL GW’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SERVICE, WHETHER IN CONTRACT OR TORT (INCLUDING GW’S OWN NEGLIGENCE), IN A PROCEEDING AT EQUITY OR LAW, EXCEED THE LOWER OF THE ACTUAL DIRECT DAMAGES OR THE TOTAL OF THE SUBSCRIPTION FEES PAID TO GW DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE CIRCUMSTANCES THAT GAVE RISE TO THE CAUSE OF ACTION. GW WILL NOT, IN ANY EVENT, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, LOSS OF THE USE OF ANY REVENUE OR PROFITS NOR ANY CONSEQUENTIAL, ECONOMIC, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR THIRD PARTY DAMAGES INCURRED (INCLUDING ANY LOSS OF YOUR DATA), EVEN IF GW HAS BEEN ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF SUCH DAMAGES.
A. YOU WILL DEFEND, HOLD HARMLESS, INDEMNIFY, COMPENSATE, REIMBURSE AND RELEASE GW AND ITS SUCCESSORS, ASSIGNS, PARTNERS, MEMBERS, OWNERS, SHAREHOLDERS, TRUSTEES, DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, LICENSORS, LICENSEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AWARDS, CLAIMS, COSTS, DAMAGES, EXPENSES, FEES, JUDGMENTS, REASONABLE EXPENSES AND FEES OF LEGAL COUNSEL AND OTHER LITIGATION COSTS AND EXPENSES, LOSSES, PENALTIES, AND SETTLEMENTS INCURRED BY GW ARISING OUT OF OR RELATED TO (A) THE BREACH OR VIOLATION OF THIS AGREEMENT BY YOU, YOUR AGENTS, YOUR REPRESENTATIVES AND/OR YOUR USERS, AND (B) ALL AND ANY ACTION, APPEAL, AUDIT, CHARGE, CLAIM, COMPLAINT, DEMAND, HEARING, INVESTIGATION, LITIGATION, PROCEEDING OR SUIT, INCLUDING BANKRUPTCY AND INSOLVENCY PROCEEDINGS ARISING OUT OF RELATED TO THE INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY YOU OR YOUR AGENTS, YOUR REPRESENTATIVES OR YOUR USERS WITH RESPECT TO YOUR DATA.
B. YOU HEREBY WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING INDEMNIFICATION, RELEASE AND HOLD HARMLESS PROVISIONS, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
C. We will give you notice of any claim for which you are required to indemnify us. You will have the right to control that portion of the defense and settlement of the claim that relates to you, unless the claim involves potential criminal liability for GW or is a claim in which non-monetary relief is sought against GW. If you are permitted to control the defense and settlement of the claim, you may not settle any claim unless the settlement unconditionally releases us of all liability. You and we will reasonably cooperate with each other in good faith to facilitate a defense or settlement of the claim.
16. Third party services
We may give you notice by means of electronic mail to the email address we have on record for your administrator, or by written communication sent by first class mail or by courier service to the address we have on record for you. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier, or 12 hours after sending (if sent by email), or, if earlier, when received. You may give notice to us by using the contact information in Section 2 (Who You Are Contracting With). By giving notice in accordance with this paragraph, a party may change its applicable address, email, or other contact information.
18. VENUE AND GOVERNING LAW
Regardless of where you are located or where you access the Service, this Agreement will be governed by, interpreted and construed in accordance with the laws of the STATE OF FLORIDA, without giving effect to choice of law or any conflicting rules. The laws of the STATE OF FLORIDA will control the interpretation and construction of this Agreement, even if under another jurisdiction’s choice of law or conflict of law analysis, the substantive law of another jurisdiction ordinarily would apply. Your use of the Service may be subject to other laws applicable to you and your business. You irrevocably and unconditionally submit to the EXCLUSIVE JURISDICTION AND VENUE of any Florida state court or United States federal court sitting in or having jurisdiction over Duval County, Florida and any appellate court from any such state court or federal court (each individually, a "Designated Court"), in any action, claim, complaint, demand, suit or proceeding arising out of this Agreement or your use of the Service (each a "Proceeding"), and you irrevocably and unconditionally waive, to the fullest extent legally permitted, any objection to the laying of venue in any Designated Court and the claim or defense of an inconvenient forum.
19. Professional Services
You may retain GW to perform professional services ("Professional Services") as you and we may agree upon in writing (a "Work Order"). We will use commercially reasonable efforts to carry out the Professional Services contained in the Work Order and to provide any resulting functionality in the Service made available to you and your Users. Except as we otherwise agree in a Work Order, (a) Professional Services and the results of the Professional Services are made available "AS IS," (b) we will provide the Professional Services on a time and materials basis at our then –applicable rates, and subject to such deposits or advances as we may require. Access to the Professional Services will be available as part of the Service during the relevant subscription period, unless we otherwise agreed in writing. All aspects of the Professional Services not contained in a Work Order will be governed by the terms of this Agreement, including (without limitation) paragraph 8 regarding our ownership of all Intellectual Property Rights and Confidential Information associated with the Professional Services.
A. The use in this Agreement of the word "including" means "including, without limitation." This Agreement does not confer any remedies or rights upon any person other than GW and you, and for the avoidance of doubt, Users have no contractual relationship with GW. Your relationship with GW is that of independent contractors only. Nothing may be construed as creating any agency relationship, employment relationship, joint venture, licensor/licensee relationship or partnership between GW and you. No waiver of any provision in this Agreement will be effective unless it is contained in a written document executed by GW. No waiver of any provision contained in this Agreement will be deemed a further or continuing waiver of such provision, or of any other provision. If any provision contained in this Agreement would be held to be illegal, invalid, prohibited or unenforceable for any reason, then such provision is ineffective in such jurisdiction, without invalidating the remaining provisions contained in this Agreement or affecting the enforceability, legality or validity of such provision in any other jurisdiction. If such provision could be drawn more narrowly so as not to be illegal, invalid, prohibited or unenforceable in such jurisdiction, it will be so narrowly drawn without invalidating the remaining provisions contained in this Agreement or affecting the enforceability, legality, or validity of such provision in any other jurisdiction.
B. The prevailing party in any Proceeding (including bankruptcy and insolvency proceedings) is entitled to an award of all and any out-of-pocket costs, expenses and fees incurred in connection with such Proceeding (whether incurred before the Proceeding or during the Proceeding), including reasonable fees and disbursements of legal counsel and other professionals, which award of costs, expenses and fees is in addition to any other remedy awarded in such Proceeding.
C. You may not assign this Agreement to any other person or entity. We can assign this Agreement to any person or entity succeeding to all or substantially all of our business, whether by sale of assets, sale of equity or a merger or other combination. We also may assign this Agreement to any parent or subsidiary of GW. We may make any such assignments without notice to you.
Revision Date: October 9, 2018
Copyright © 2016-2018 GleanView, LLC, All Rights Reserved.