INDUSTRIAL COLOR, INC.

GLOBALedit®

TERMS AND CONDITIONS OF SERVICE

 

BACKGROUND –With respect to Customer, any Service offered or provided to Customer and the Users (“you” or “your”) by or through Industrial Color, Inc., (“Industrial Color”, “we”, “us” or “our”) is conditioned upon and subject to the terms and conditions of this TOS and any Agreement (hereinafter defined) with Customer. BY ACCESSING AND USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF and any posted guidelines, policies or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules (including but not limited to our Privacy Policy) are incorporated by reference into the TOS.  IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TOS, YOU ARE NOT PERMITTED TO, AND MUST NOT, ACCESS OR USE ANY SERVICE OR ANY OF THE GLOBALEDIT® APPLICATIONS.  BY ACCESSING OR USING ANY SERVICE OR ANY FEATURE OF ANY GLOBALedit® APPLICATION PROVIDED ON OR THROUGH THE SITE OR OTHERWISE YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS TOS.  A USER THAT DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TOS MUST NOT ACCESS OR USE ANY SERVICE OR ANY FEATURE OF ANY GLOBALedit® APPLICATION.

 

 

  1. DEFINITIONS  Capitalized words or phrases used in this TOS have the meanings assigned to them on Appendix A.
  2. LICENSE AND USE OF THE SERVICES; FEES

2.1            SERVICES/GENERAL.  Customer is only authorized to access or use the Services through Users, and during the Term, provided that neither Customer nor any User is in default or breach of this TOS or any Agreement.  The Services currently include the provision of access to certain features or functionality of the GLOBALedit® Applications through the Site, on Customer’s hardware, via mobile device, table or tablet device or otherwise in connection with the GLOBALedit® Applications, which include such other services as may from time to time be offered by or through us and selected by Customer in either written or electronic form from time to time.  The aggregate number of Users under Customer’s Account may not exceed the maximum number of permitted Users.

2.2            GRANT OF LICENSE

  1. License for Services.  Subject to the terms of this TOS and any Agreement, Industrial Color hereby grants Customer’s User(s), and Customer’s User(s) hereby accept from us, a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to access and use the Services subscribed for by Customer (other than Ancillary Software), during the Term, and only under Customer’s Account: (i) solely via such sub-domain or subdirectory on the Site or in such other manner as we from time to time designate; (ii) at such times as those Services are generally available to our licensees for access and use over the Internet or as otherwise provided by us; (iii) only for the purpose of accessing and utilizing those features or functionality of an executable object code version of GLOBALedit® Applications hosted on the System, and designated by Customer and accepted by us, in order to view or process Customer Content and to upload and download Customer Content to and from and to store Customer Content in a database on a Host Server or as otherwise designated and specified by us; (iv) for Customer’s internal business purposes only and not to operate any file storage service, resell any part of any Service, or for any outsourcing, service bureau or similar purposes; and (v) solely in accordance with this TOS (herein collectively the “Customer License”).  As between Customer and its Users on the one hand, and Industrial Color and its third party licensors and suppliers on the other, Industrial Color and its third party licensors and suppliers own and reserve all right, title and interest, including all Intellectual Property Rights, in and to the System, Services, Software and Industrial Color Technology and any Derivatives thereof.
  2. License for Ancillary Software.  Industrial Color hereby grants Customer’s User(s), and Customer’s User(s) hereby accept from us, a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to install, access and use the Ancillary Software in executable object code form on such compatible devices or platforms that you own or control solely for purposes of accessing and providing functionality to the Service subscribed for by Customer during the Term, under Customer’s Account, subject to the terms of this TOS and any Agreement, including without limitation the disclaimers of representations and warranties and the limitations of liabilities contained in this TOS and further subject to the rights of applicable third parties.  Customer and Industrial Color acknowledge that the license grant for Ancillary Software if offered and provided by Industrial Color and subscribed to and paid for by Customer shall be included in the Customer License.
  3. The Customer License is subject to all limitations and restrictions set forth in the TOS and all rights not expressly granted under Section 2.2(a) and (b) are reserved by us. We may in our sole and absolute discretion, immediately and with or without notice, suspend or terminate the Customer License in whole or in part and with respect to any or all Users or otherwise, and with or without notice if Customer or any User fails to comply with any term, condition, restriction or other provision of this TOS or any Agreement.  No other rights or licenses are granted to Customer, any User or any other Person under this TOS or otherwise, nor may any be implied by or inferred from any provision of this TOS or otherwise.  The Customer License is only applicable to the specific GLOBALedit® Applications  for which Customer has subscribed and we have agreed to provide and does not convey and rights or licenses to any other GLOBALedit® Applications or other applications or software.

2.3            GRANT OF LICENSE TO INDUSTRIAL COLOR.  Customer, each User and each Guest (if any) hereby grants to us, our Affiliates, agents, contractors, successors and assigns a non-exclusive, royalty-free, worldwide, transferable, fully paid up sublicensable, perpetual and irrevocable right and license to: (i) host, store, cache, use, reproduce, modify, make Derivative Works of, transmit, distribute and display their respective or joint Customer Content or any part thereof where and as we deem necessary to render or perform any Service to or for any of them or on any of their behalf and otherwise in connection with and in furtherance of the exercise of our rights and obligations under this TOS; and (ii) use, reproduce, transmit, distribute or display their respective trade names, trademarks or service marks as we deem necessary to render or perform any Service to or for any of them or on any of their behalf or otherwise in connection with and in furtherance of the exercise of our rights and obligations under this TOS or any Agreement (collectively the “Customer Content License”).

2.4            THIRD PARTY SOFTWARE.

  1. The Services or GLOBALedit® Applications may from time to time contain or comprise, or otherwise require our use of, third party software licensed to us pursuant to one or more third party license agreements.  Neither Customer nor any User: (i) acquires any right or license in or to any such third party software by virtue of the this TOS or otherwise; nor (ii) may under any circumstance directly or indirectly copy, modify, alter, tamper with, create any Derivative of, reverse engineer, decompile, disassemble or otherwise attempt to discern or derive the source code or any underlying algorithm of any such third party software, or attempt to do any of the foregoing.
  2. WE MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SOFTWARE INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

2.5            SERVICE MODIFICATIONS AND MAINTENANCE.

  1. We reserve the right to and may at any time or from time to time with or without notice: (i) enhance, modify or remove any feature(s) or functionality of any Software or Service; (ii) add additional Service offerings; (iii) remove service offerings; or (iv) modify this TOS, or any policy or other terms referenced in this TOS or posted on the site from time to time, including by modification, deletion, or addition of any part(s) thereof ((i) – (iv) collectively, “Revised Terms”). We will post a revised version of this TOS on the Site and posting the Revised Terms or revised TOS on the Site shall be the only notification we are required to provide to you.  Unless (and then only to the extent) we provide otherwise, any Revised Terms will become effective immediately upon our posting them on the Site. Any User’s continued use of any Service after any Revised Terms become effective constitutes Customer’s and that User’s acceptance of the Revised Terms.  Customer and each User are responsible for regularly checking the Site for Revised Terms.
  2. In addition to our right to suspend or terminate the Customer License or any User’s access to the System or any Service in accordance with Section 8, we may from time to time suspend all or part of any Service(s) without liability and without prior notice to Customer or any User: (i) in order to maintain (e.g. update, modify, upgrade, patch or repair) the System or any part or aspect of our infrastructure; (ii) as we determine may be required by any applicable Laws; or (iii) as we determine to be necessary to protect the System (or any part thereof) or any other part of our infrastructure from unauthorized access or any attack.  We will endeavor in good faith to provide Customer with advance notice of any scheduled suspension of applicable Services under this Paragraph 2.5(b).

2.6            NONEXCLUSIVE RIGHTS/SIMILAR AGREEMENTS. The rights and licenses granted by us in this TOS are nonexclusive. Nothing in this TOS prevents us nor may in any respect or under any circumstance be construed or operate to prevent us or any of our Affiliates from offering or providing any access to or use of any Service, Software, the System or any part thereof to any other Person(s) or from offering, entering into or performing under similar agreements with any other Person(s), including any Person(s) engaged in any business which may be the same as, similar to or competitive with your business.

2.7            CUSTOMER’S ACCOUNT

  1. SET UP OF ACCOUNT AND PASSWORDS.  In order for Users to access the Services to which it has subscribed, Customer must first furnish us with such information as we may request in order to set up an Account.  By providing such information or using the Service or authorizing any Users to use the Service, Customer has agreed to be and is bound by the terms of this TOS.  Once we have set up Customer’s Account, Customer will be solely responsible for the configuration thereof, including selection of its Users, authorization of any User in excess of the aggregate number of permitted Users based on the Services to which it has subscribed and issuance of passwords, user identification numbers, access codes, private keys, or other user identifications or login credentials (each a “User ID” and collectively “User IDs”) to permitted Users for use under Customer’s Account. Customer’s Account must at all times be associated with a valid e-mail address, which Customer is responsible for maintaining in full force and effect at its sole cost and expense. Customer is responsible for all activities that occur under or with respect to its Account, regardless of whether or not such activities are undertaken by Customer, any of its employees, any User, or anyone else.  Without limiting the foregoing, Customer is responsible at all times for:

(i)                maintaining the confidentiality of all User IDs for its Account;

(ii)               designating and supervising all Users authorized to access any Service under its Account; and

(iii)             ensuring that all activities that occur under or in connection with its Account fully comply with this Agreement and all applicable Laws.

  1. REPORTING UNAUTHORIZED USE OF CUSTOMER’S ACCOUNT.  Neither we, nor any of our Affiliates, third party licensors or suppliers is responsible for any access to or use of Customer’s Account or any activities thereunder. including any alteration, deletion, destruction, damage, loss of or any failure to store any Customer Content or other files or data which Customer or a User submit or use under or in connection with Customer’s Account.  Customer must contact us immediately by e-mailing us at security@Globaledit.com and promptly providing us with written notice in accordance with this TOS if Customer believes that an unauthorized Person may be using Customer’s Account or that Customer’s Account has otherwise been compromised or if any of Customer’s Account information or User ID is lost or stolen.
  2. USERS

(i)            insuring that all activities that occur under or in connection with its Account fully comply with this Agreement and all applicable Customer will, through the process of configuring its Account, designate certain of its employees or other agents who are natural persons or certain of its consultants, clients or contractors (and where such consultants, clients or contractors are not natural persons then certain of their respective employees who are natural persons) up to the number permitted pursuant to the Services to which it has subscribed, as Customer’s Users to access and use such Services for or on Customer’s behalf under Customer’s Account and otherwise subject to the provisions of this TOS.  Each User must as a condition precedent to their accessing or using any Service under Customer’s Account, agree to be bound by the terms, conditions and restrictions of the TOS whenever and in the manner specified by us from time to time on the Site.

(ii)          Customer may assign to each of its Users a User ID to enable those individuals to access and use the Services to which it has subscribed under Customer’s Account. Customer, and not Industrial Color, is solely responsible for any access to or use of the System or any Service under or through Customer’s Account, and for maintaining the security and confidentiality of any User ID issued from time to time by Customer.  Unless, and then only to the extent otherwise expressly consented to in writing by us, Customer must not permit any Person to have access to or use of any of Customer’s Account information other than those of Customer’s bona fide employees who are themselves Users and have actual need to know that information in the proper exercise of the Customer License or the performance of Customer’s obligations.

(iii)         Customer will at all times be responsible and liable to us, for and in connection with any access to or use of any of the System or any Service under Customer’s Account and for any act or omission of any of Customer’s personnel or any User which may in any respect violate any of the provisions of this TOS.

(iv)         Customer will at all times be responsible for and bound by any transmission or communication placed on, executed through or facilitated by the System under Customer’s Account or that are accompanied by any User ID assigned by Customer to any User or assigned by us at Customer’s request to any User, and for the consequences of any such transmission(s) or communication(s), and otherwise for any acts or omissions of Customer or any User in connection with their access to or use of the System, any Service or Customer Content.  Customer must ensure that all Users comply with all conditions of and restrictions upon access to or use of the System or any Service imposed by this TOS.  If Customer becomes aware of a violation by any User of any of their obligations under this TOS, Customer must immediately notify us thereof in writing, terminate such person’s status as a User and otherwise terminate such person’s access to or use of Customer’s Account, the System or any Service.  In any event, upon our receipt of such notice from Customer, we may (but shall have no obligation to) do so.  We at all times reserve the right to limit or terminate Customer’s, any User’s or any other person’s access to or use of the System, any Service or any part thereof, immediately and without prior notice in the event we have reason to believe that there has been a technical failure or any improper access to or use of the System or any Service by such person(s), but in no event shall we have any liability for any delay or failure to do so.

(v)           Customer represents and warrants that it is not a Person on any list barring it from receiving Services, including the Denied Persons or Entity Lists, or any other list issued by the U.S. Department of Commerce, Bureau of Industry and Security, detailed at http://www.bis.doc.gov/complianceandenforcement/liststocheck/htm (or successor sites thereto).  Customer must not appoint, authorize or designate any individual to act as a User or Guest under Customer’s Account if that individual resides in any country on the United States Office of Foreign Assets Control Sanctions List, including Cuba, Iran, North Korea, Sudan or Syria, and no such individual may post any Customer Content to or access any Service available on or through the System.

  1. SYSTEM REQUESTS.

(i)            Any User ID which Customer or any User creates or utilizes in connection with Customer’s Account or otherwise in connection with any Service, or which we may, at Customer’s request, provide to Customer or to any of Customer’s Users for such purpose, are for Customer’s or such User’s internal use under this Agreement only, and neither Customer nor any User may sell, rent, transfer, sublicense or otherwise provide any User ID to any other Person.

(ii)          Provided that neither Customer nor any User is in default of any of their respective obligations under this TOS or otherwise to us, during the Term, Customer’s Users may make calls or requests to the Services to which Customer has subscribed at any time(s) that the Services are generally available to our customers for such purposes.  However, not more than the permitted number of permitted Users may make such calls or requests at any given time.

(iii)         We at all times have the right to monitor storage capacity used under Customer’s Account and to utilize technology to limit such usage to ordered amounts or to charge Customer for any excess usage.

(iv)         We at all times have the right to monitor any traffic or use of the System or any of the Services (including any traffic or use under or in connection with Customer’s Account) and to collect data with respect to same, which data may be used by us to enhance or improve the System or any Service or feature thereof.

2.8            FEES

  1. SERVICE FEES.  Customer must pay fees for the Service(s) to which Customer subscribes or uses, based on the fees contained in any Agreement and if no Agreement exists (or if Customer subscribes to Services that are not covered by the Agreement) then the fees shall be our then current schedule of fees in effect from time to time which will be provided to Customer upon request (the “Service Fee(s)”)  and as set forth in this Section 2.8.  Unless and then only to the extent otherwise expressly provided in an Agreement:

(i)                     Invoices.  We will invoice Customer and Customer must pay us for any Service Fees which include all of our out of pocket expenses (if any) which we incur during the immediately preceding month in connection with Customer’s Account, according to our then current schedule of fees.  We may from time to time increase any Service Fees or add new fees, for any existing or new Service (or any feature thereof) or implement a fee for any previously free Service or Service feature, by giving Customer notice on or prior to the effective date of such change(s), which notice may be provided by posting it to the Site or other similar manner of notification.  If any such change(s) are unacceptable to Customer, Customer’s sole and exclusive remedy is to terminate the Term in accordance with this TOS.  Any access to or use of any Service by a User following the effective date of any increase to or addition of any fees or charges will constitute Customer’s acceptance thereof.

(ii)                   Service Fees contained on Monthly Invoices.  We will invoice Customer as of the first day of each month for:  (i) all fees and charges applicable to the activity under Customer’s Account for the immediately preceding month; (ii) the coming month’s Account fee; (iii) Customer’s user and storage allotment or allocation fee for the coming month; (iv) any overage in file storage capacity allotment or allocation above the number of gigabytes per calendar month subscribed for by Customer for the preceding month; (v) if and to the extent we have posted any jobs to Customer’s Account or on Customer’s behalf then any applicable upload fees we may require in connection therewith; (vi) any user upload fees, (vii) download fees and such other fees any other billable transactions that may be incurred, and (vii) such other fees that we may charge from time to time, including but not limited to, account set up, processing and metadata entry.  If at any time Customer desires to authorize any number of Users in excess of the number of permitted Users set forth in the applicable SOW, Customer must pay the full month’s fee for same, regardless of when during the month Customer makes such election.

(iii)                  Payment.  Customer must pay all charges for any set up fees in advance of the first day any User is provided access to any Service.  Thereafter, Customer must pay all of our invoices within fifteen (15) days following Customer’s receipt thereof, in each case without any setoff or deduction, and any amount remaining unpaid after thirty (30) days shall accrue interest at a rate equal to the lesser of 1½% per month or the highest rate allowed by applicable Law, until paid in full.  All amounts payable by Customer to us must be paid in immediately available funds, in United Stated dollars.  Our invoices may be sent electronically to the e-mail address associated with Customer’s Account, if at any time we choose to provide our invoices in that manner.

(iv)                  Payment Authorization.  If Customer pays for Services by credit card, debit card or PayPal, Customer authorizes us to charge Customer’s credit card, debit card, or PayPal account to pay for any charges that may apply to Customer’s Account.  Customer must immediately notify us of any changes to its credit card account, debit card account or PayPal information (including any changes to its account number, billing address, cancellation of account, expiration of account, or any other information which may prevent or hinder us from properly charging Customer’s account.  Customer’s failure to pay all fees and charges for Services, and applicable taxes, when due shall be a material breach by Customer of this TOS justifying Industrial Color, in its sole and absolute discretion (and without prejudice to any other rights or remedies we may have hereunder, or otherwise at law or in equity) to temporarily or permanently suspend the Customer License or otherwise deny any Service, or terminate the Term.  Customer is responsible for any costs that we incur in collecting amounts from Customer, including reasonable attorney’s fees, court costs and collection agency fees.

  1. DISPUTES. All Service Fees or other amounts not timely, appropriately and in good faith disputed by Customer within thirty (30) days after the due date for same will be deemed final and not subject to dispute.  In the event Customer timely and in good faith disputes any charges invoiced by us, Customer must pay the undisputed portion of the charges and notify us in writing of the disputed amount.  In that written notice, Customer must identify in reasonable detail the reasons for and nature of the dispute and the amount of the disputed charges.  If Customer was billed in error, we will issue a credit for the amount billed incorrectly within sixty (60) days after we determine that an error was made.  Credits issued have no cash value and will be applied against current invoices or future services. In the event we determine that the amount was billed correctly, Customer must pay the applicable disputed amount within seven (7) business days after we confirm to Customer that the amounts were properly charged, together with interest accrued since the initial due date.
  2. TAXES.  Customer must pay any taxes or duties on Services that we are required by Law to collect.  All fees and charges payable by Customer to us are exclusive of any applicable taxes or duties, including any value-added, transaction, service or sales tax(es). Customer must promptly provide us with any information we reasonably request to determine whether we are obligated to collect any tax or duty from Customer, including Customer’s VAT identification number.  If Customer is legally entitled to an exemption from any tax or duty on any Service, Customer is responsible for providing us with legally sufficient tax exemption certificates for each taxing jurisdiction.  We will apply the tax exemption certificates to charges under Customer’s Account occurring after the date we receive the requisite tax exemption certificates. If any deduction or withholding is required by Law, Customer must promptly notify us thereof and pay us any additional amounts necessary to ensure that the net amount that we receive after any such deduction and withholding, equals the amount we would have received if no deduction or withholding had been required.  Customer must promptly provide us with documentation showing that the withheld and deducted amounts have been paid to the applicable taxing authority.
  3. SPECIAL PRICING ARRANGEMENTS. From time to time, we may, but are not required to, offer discounted or free pricing for certain Services (each a “Special Pricing Arrangement”). After a Special Pricing Arrangement ends, normal charges will apply. Customer must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) we impose in connection with the Special Pricing Arrangement, as described on the Service-specific page of the Site or elsewhere, if Customer chooses to take part in any Special Pricing Arrangement. Customer may not sign-up for multiple accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Arrangement. Any files or data stored as part of a Special Pricing Program must be actively used.
  4. 3.              RESPONSIBILITIES OF CUSTOMER AND USERS; GUESTS;  PROHIBITED ACTS

3.1            Neither Customer nor any User may access or use the System or any Service in any manner or for any purpose other than as expressly permitted under the Customer License and then only in compliance with all other terms, conditions and restrictions of this TOS and all applicable Laws.

3.2             Customer must never permit anyone other than a User to access or use any of the System or any Service under Customer’s Account.  Notwithstanding the immediately preceding sentence, Customer may from time to time during the Term, subject in each case to our prior written consent, permit Guests to access the Lightbox Service feature (if subscribed to by Customer) for the sole purpose of viewing, commenting on or downloading Customer Content in the Lightbox Service and any such access and use shall be subject to all of the terms, conditions and restrictions of this TOS imposed upon Users.  Any reference in this TOS to “Users” shall be deemed to include, and the Customer Content License is also granted hereunder by, each permitted Guest (if any), provided that nothing herein is intended to or may be construed or operate to expand the limited scope and purpose for which a Guest may access or use the System or Service as expressly set forth in this Subsection 3.2.

3.3            Neither Customer nor any User may at any time, directly or indirectly do or attempt to do any of the following:  (i) modify, alter, copy, tamper with, repair or create any Derivative of the System or any part thereof; (ii) reverse engineer, decompile, disassemble, copy or otherwise attempt to discern or derive the source code or any underlying algorithm of any Software (including any third party software) or any part thereof; (iii) access or use any Service to avoid incurring applicable fees or exceeding applicable usage limits or quotas; (iv) access or use any Service other than through the user interfaces provided by us from time to time for that purpose and then only under the password or other login credentials issued to the applicable User under Customer’s Account; (v) download, upload, reproduce, copy, post, distribute or in any other way transmit any Customer Content or other data, file or materials from or to the System unless such activities comply with the Customer License, all other terms, conditions and restrictions of this TOS, as well as all applicable Laws; (vi) interfere or attempt to interfere in any manner with the functionality or proper working of the System or any part thereof.

3.4            Neither Customer nor any User may at any time directly or indirectly access or use the System or attempt to access or use the System (or any part thereof) to:

(1)             violate, misappropriate or infringe any of our Intellectual Property Rights or the Intellectual Property Rights of any other Person;

(2)             post, upload, download, reproduce, display, create Derivative Works of, view, or transmit anything other than Customer Content, and then only if with respect to such Customer Content, they have the absolute legal right to do so and to grant us the Customer Content License (and by doing any of the foregoing, Customer and its User, jointly and severally, represent and warrant to us that they have all requisite legal rights to do so and to grant us the Customer Content License with respect to, that Customer Content, and that such activities and the Customer License, do not infringe the rights of any Person or violate any applicable Laws);

(3)             post, upload, transmit or distribute, or facilitate the posting, uploading, transmission or distribution of, any Customer Content or other data, files or materials which contain or constitute a virus, worm, malware, Trojan horse, spyware, malicious or harmful code or corrupted data or code that otherwise manifests contaminating, harmful or destructive properties;

(4)             delete any author attributions, legal, Intellectual Property Rights or other proprietary rights notices or designations from any Customer Content or any other data, files or other materials that Customer or its Users upload to or download from any part or feature of the System;

(5)             upload, reproduce, transmit or otherwise distribute any unsolicited advertising, promotional materials, junk mail, chain letters, pyramid schemes, spam or any other form of solicitation or advertising or otherwise for the purpose of direct marketing, spamming, unsolicited contacting of any Person, including any activities that violate anti-spamming Laws.

(6)             Upload, reproduce, transmit or otherwise distribute any Customer Content, message, information, data, text, file, or other communication, content or materials that is in any respect unlawful, harmful, threatening, abusive, harassing, defamatory or otherwise tortious, pornographic, obscene, or otherwise objectionable, or which may be invasive of any Person’s  right of privacy or publicity, or which might in any respect be unlawful or give rise to civil or criminal liability;

(7)             use any of the System’s communication features in a manner that adversely affects the availability of the System’s resources to us or any of our other customers or users;

(8)             impersonate, or falsely state or otherwise misrepresent any affiliation with any Person;

(9)             delete or revise any content posted to the System by anyone other than Customer’s Users;

(10)          manipulate or display the Site or any part thereof by using framing or similar navigational technologies;

(11)          constitute, promote, facilitate or permit gambling; or

(12)          violate any applicable Laws.

3.5            Customer and its Users alone (and at their sole cost and expense) are responsible for:

  1. the development, operation, maintenance and use of any Customer Content, including:  (i) the technical operation of any Customer Content, including ensuring that calls or requests Customer or any User makes to the System are compatible with the System, the applicable Service or Software; (ii) compliance of Customer Content with any restrictions set forth in this TOS or imposed under any applicable Laws; (iii) any claims relating to Customer Content; (iv) proper handling and processing of any notices sent to Customer or a User (or to any of their respective Affiliates), regarding any claim that any Customer Content violates any Person’s Intellectual Property Rights or other rights, including notices pursuant to the Digital Millennium Copyright Act; (v) properly configuring Customer’s or its Users’ computers and devices, and any Customer Installed Programs; (vi) obtaining and maintaining in full force and effect all requisite licenses for, and the proper operation of, all Customer Installed Programs; and (vii) taking their own respective steps to maintain appropriate security, protection and backup of all Customer Content, which may include use of encryption technology to protect Customer Content from unauthorized access or use, or  archiving of Customer Content; and
  2. providing customer service (if any) to any User.  We do not provide any support or services to Users unless we have an Agreement with Customer or such User obligating us to provide such support or services;

3.6            VIOLATIONS BY USERS.  Customer and its Users are responsible for and shall be bound by any of their communications placed on, executed through or facilitated by the System and for the consequences of any such communication(s), and otherwise for their acts or omissions in connection with their access to or use of the System or any Customer Content.  Each User is obligated to comply with all of the conditions of and restrictions upon access or use of the System imposed by this TOS.  If we become aware of any violation by a User of any of his or her obligations under this TOS, or otherwise have reason to believe that a User may have improperly accessed or used the System we may terminate that person’s status as a User and their access to or use of the System or any part thereof.

3.7            SECURITY. We make no representation or warranty regarding, and Customer and its Users acknowledge that they alone bear sole responsibility for, adequate security, protection and backup of any Customer Content. Customer and its Users (and not us) are responsible for (a) routinely archiving all Customer Content, and (b) keeping any Customer Installed Programs or any other software that Customer or any User use or run in connection with any Service current with the latest security patches or updates. We will have no liability to Customer, any User, or anyone else, for or in connection with any unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content.

3.8            COOPERATION.  Customer and each User must provide us with any information, documents, cooperation or assistance we may from time to time reasonably request to enable us to comply with any applicable Laws.  We may report such information to regulatory or law enforcement authorities if and to the extent we deem necessary and appropriate in order to comply with applicable Laws.

  1. 4.              PROPRIETARY RIGHTS

4.1            OUR PROPRIETARY RIGHTS.

  1. Notwithstanding any provision of the this TOS to the contrary, the System, Software, Industrial Color Technology, and any content of, or materials which from time to time comprise any of the foregoing, including any text, images, graphics, logos, illustrations, photographs, video, audio or other content or files, as well as any designs, icons, layout, “look and feel” and any other graphical elements and any of our or any third party trademarks, service marks or other source indicators, (collectively “Our Materials”) and all Intellectual Property Rights in and to Our Materials are and remain the sole and exclusive property of Industrial Color or our third party Affiliates, suppliers or licensors.  Neither Customer nor any User may remove any of our (or any of our third party Affiliate’s, supplier’s or licensor’s) copyright, trademark or other Intellectual Property Rights notices, labels or marks at any time appearing in or on any of Our Materials;
  2. Nothing in this TOS grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance to Customer, any User or any other Person of any right, title or interest in or to any of Our Materials or any Intellectual Property Rights therein, including but not limited to any trademark, trade name, service mark or other proprietary identifying symbols used by us from time to time on or in connection with the System (including “GLOBALedit®”) or any feature or functionality thereof (collectively “Our Marks”).  Neither Customer nor any User may use any of Our Marks without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion.  All goodwill arising from or incident to any use of Our Marks shall inure exclusively to us or our third party licensors as applicable.
  3. Customer and each User consents to our use of Customer Content in connection with the provision of any Service to Customer or any User or otherwise in the exercise of the Customer Content License. We may disclose Customer Content:  (i) if Customer authorizes us to do so in connection with any use of the Services by Customer or a User; or (ii) as necessary to provide any Service to Customer or any User; or (iii) to comply with the Agreement or this TOS or the request of a governmental or regulatory body, subpoenas or court orders or as we may otherwise deem necessary to comply with any applicable Laws.
  4. Neither Customer or any User by virtue of this TOS or otherwise, acquires any rights in any of Our Materials, except for the limited Customer License during the Term, as provided in Subsection 2.2.

4.2            CUSTOMER’S AND USER’S PROPRIETARY RIGHTS. Our Materials do not include Customer Content or any trademark or service mark of Customer or its User.  As between Customer and its Users on the one hand, and Industrial Color on the other, Customer or its Users and their respective third party licensors own all right, title and interest in and to Customer Content and their respective trademarks and service marks.  Except for the Customer Content License or as provided in this Section 4.2, we obtain no rights under the Agreement or this TOS from Customer, its Users or any of their respective third party licensors, to Customer Content or any of their respective trademarks or service marks, including any related Intellectual Property Rights; provided however, that in the event Customer fails to make full payment of any fees or charges due and owing to us for the Service from time to time, we shall in addition to any other rights or remedies which we may have under this TOS or otherwise at law or in equity, have a continuing lien upon any Customer Content stored on the System and the right to withhold or suspend Customer’s or any User’s or any other Person’s access to any such Customer Content until such time as those fees and charges and any accrued interest thereon (if and as the case may be) are paid in full.

4.3            NON-ASSERTION. During and after the Term, neither Customer nor any User shall assert, nor will they authorize, assist, or encourage any third party to assert, against us or any of our Affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property Rights infringement claim with respect to the System, or any Industrial Color Technology.

4.4            SUGGESTIONS.  If Customer, any of its employees or agents or any User provides any suggested improvement(s) to the System or any feature or functionality thereof (each a “Suggestion” and collectively “Suggestions”) to us or any of our Affiliates, we will own all right, title and interest (including any Intellectual Property Rights) in and to any Suggestion even if the Person making the Suggestion has designated the Suggestion as confidential or proprietary.  We, our Affiliates and our successors or assigns shall be entitled to use and exploit any Suggestion without restriction.  Customer and each User must, and hereby does, irrevocably assign to us all right, title and interest (including all Intellectual Property Rights) in and to all Suggestions (if any) and agrees to provide us or our designees with any assistance we may or they may reasonably request or require from time to time to further document, perfect and maintain our rights in any Suggestion.

  1. 5.              CONFIDENTIALITY.

5.1            Recipient agrees that it will not, without the Disclosing Party’s express written authorization, disclose to any third party or use for Recipient’s own benefit, the Disclosing Party’s Confidential Information except as contemplated by or permitted under this TOS.  Recipient will protect the confidentiality of the Disclosing Party’s Confidential Information using at least the same degree of care Recipient takes to protect its own Confidential Information of like kind (but in no event less than a reasonable degree of care) and will, except as may be required to comply with any applicable Laws, restrict access to the Disclosing Party’s Confidential Information to those of Recipient’s personnel, agents or contractors that need to know such information in order to exercise Recipient’s rights or perform Recipient’s obligations under this TOS, and who have been advised of the confidential nature of the Confidential Information and the restrictions upon disclosure and use thereof imposed by this Section.  Nothing herein is intended to nor may be construed or operate to prevent us from disclosing, and we may disclose, Customer or any User’s information, including any Confidential Information, to any Person who or which directly or indirectly acquires all or substantially all of our business assets, or the issued and outstanding shares of our equity securities, or upon a merger, stock-swap, consolidation, reorganization or any other means by which a third party acquires or otherwise succeeds to all or substantially all of our business. The foregoing obligations of confidentiality shall survive the expiration of any earlier termination of the Term for a period of three years.

5.2            DISCLOSURE TO LAW ENFORCEMENT.  Access to or use of the System for illegal activities is prohibited.  We will cooperate with law enforcement authorities in the investigation and prosecution of criminal activity.  Customer and each User agree that we may disclose any and all of their respective information, including assigned IP Addresses, Account history, Account use, Customer Content, Confidential Information or other information or data to any law enforcement agency as permitted hereunder or as may be required by Law without Customer’s consent or the consent of any User, and without any notification to Customer or any User. 

  1. 6.              REPRESENTATIONS AND WARRANTIES

6.1            Customer and each User hereby severally (and not jointly) represent and warrant to us as follows:

  1. that throughout the Term and for a period of one (1) year following expiration or any termination thereof:  (i) neither they nor any of their respective Affiliates shall directly or indirectly solicit the employment of, employ, or otherwise engage the services of any of our current or former employees with whom they had contact with in connection with the System or the Services; and (ii) they shall promptly notify us of any communications which they or any of their respective Affiliates may have with any such persons regarding or in any way pertaining to any potential employment or other engagement for the provision of services;
  2. that they own all right, title and interest in and to the Customer Content, including all Intellectual Property Rights therein necessary for the lawful use of such Customer Content on or in connection with the Service or otherwise have all rights in and to the Customer Content necessary to lawfully grant us the Customer Content License and any other rights necessary to utilize Customer Content as contemplated by this TOS;
  3. that they have all necessary rights, licenses, consents, permissions, waivers and releases to copy, distribute, use, display and otherwise exploit any Customer Content uploaded by them at any time to any Service;
  4. that no Customer Content: (i) violates, misappropriates or infringes any of our rights or rights of any third party; (ii) constitutes defamatory material; (iii) is designed or intended for use in any illegal activity or to promote any illegal activities; or (iv) contains any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code;
  5. that they each own all right, title and interest in and to their respective trademarks and service marks; and
  6. that they will not use or attempt to use the System, any part thereof, or any Customer Content: (i) in a manner that infringes, violates or misappropriates any of our rights or rights of  any third party; (ii) to engage in any impermissible or unlawful advertising, marketing or other activities; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data subject to export limitations, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and Council Regulation (EC) No 428/2009; or (iv) in a way that otherwise violates any applicable Laws.
  7. 7.              INDEMNIFICATION

7.1            GENERAL. Customer and each User must at all times indemnify, defend and hold us, our Affiliates and third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) Customer’s or any User’s access to or use of the System in a manner not authorized by this TOS, or in violation of any applicable Laws; (ii) Customer Content, or Customer Installed Programs or the combination of either with other applications, content or processes, including any claim involving infringement or misappropriation of third-party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of Customer Content, (iii) any breach by Customer or a User of any term or condition of this TOS, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of Customer, any of its employees, contractors, or any User.

7.2            NOTIFICATION. We will promptly notify you or Customer (as applicable) of any claim which we become aware of and which we believe to be subject to indemnification under this Section 7; provided that our failure to promptly notify you or Customer shall not affect Customer’s or your indemnification obligations hereunder except to the extent that our failure to promptly notify you or Customer materially prejudices your or Customer’s ability to defend the claim. At our option, you or Customer will have the right to defend against any such claim(s) with counsel of your or Customer’s own choosing (subject to a conflicts assessment), and to settle such claim as you or Customer deem appropriate, provided that neither you nor Customer (nor any Person acting on your or Customer’s behalf) may enter into any settlement without our prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim

  1. 8.              TERMINATION.

8.1            TERMINATION OF PARTICULAR USERS.  Your right to access and use the System or any Service, and the Customer License, as to you, will terminate: (a) if Customer revokes your status as a User; (b) you fail to comply with any of the terms or conditions of this TOS; (c) Customer defaults under or breaches any of the provisions of any Agreement with us; or (d) either we or Customer terminate the Term for any reason or no reason.  Upon or at any time following any of the foregoing events, we may disable your login credentials and you may no longer be permitted access to or use of any of the System or Services.  Any provision of this TOS that by its nature extends beyond the expiration or any earlier termination of the Term, or your authorization hereunder to access or use the System or any Service, shall remain in effect, and shall apply to you until fulfilled or discharged by your performance thereof.

8.2            TERMINATION BY CUSTOMER.

  1. Unless otherwise set forth in any Agreement, Customer may terminate the Term for any or no reason, at Customer’s convenience, by providing us with not less than thirty days advance written notice of termination in accordance with the notice provisions of this TOS and closing Customer’s Account for all Services for which we provide an account closing mechanism.
  2. Customer may terminate any individual’s status as a User and as such that individual’s authorization to access or use any of the System or Services under Customer’s Account at any time with or without cause and with or without notice to such individual, through Customer’s reconfiguration of its Account to so modify such individual’s status thereunder.

8.3            TERMINATION OR SUSPENSION BY US OTHER THAN FOR CAUSE.  We may terminate or suspend the Customer License or any User’s access to the System or any Service, or terminate the Term in its entirety, for any or no reason, and in our sole and absolute discretion at any time by providing Customer with not less than fifteen days advance notice in accordance with the notice provisions of this TOS.

8.4            TERMINATION OR SUSPENSION BY US FOR CAUSE. We may terminate or suspend the Customer License or any User’s access to the System or any Service, or terminate the Term  in our sole and absolute discretion at any time with or without our giving of any notice to Customer or any User if:

  1. Customer, or any of its Affiliates, employees, contractors or Users: (i) attempt a denial of service attack on the System or any part thereof; or attempt to hack or break any security mechanism of or on the System or any Service or we otherwise determine that Customer or any User’s access to or use of the System or any Service poses a security or service risk to us, to any user of Services offered by us, to any third party on the Site, or to any of our or their respective customers, or may subject us or any third party to liability or damages; (ii) otherwise access or use or attempt to access or use the System or any Service in a way that is disruptive or threatens the System, a Service, or any part thereof, or any access or use of the System or any Service, or any part thereof by us or any of our other customers; (iii) use any of Our Materials or Our Marks other than as expressly permitted herein; or (iv) otherwise are in default or breach of any provisions of this TOS or any Agreement.
  2. Customer is  in default of any of its payment obligations to us;
  3. Any payment mechanism Customer has provided to us is invalid or charges are refused for such payment mechanism, and Customer fails to correct such payment problem within fifteen days following notice thereof provided in accordance with the provisions of this TOS;
  4. we determine, in our sole and absolute discretion, that there is evidence of fraud with respect to Customer’s Account;
  5. we receive notice or we otherwise determine, in our sole and absolute discretion, that Customer or a User may be accessing or using the System or any part thereof for any illegal purpose or in a way that violates applicable Laws or violates, infringes, or misappropriates our or any third party’s Intellectual Property Rights;
  6. we determine, in our sole and absolute discretion, that our provision of any of the Services to Customer or any User is prohibited by any applicable Law, or has become impractical or unfeasible for any legal or regulatory reason; or
  7. Customer (i) commences liquidation or dissolution proceedings; (ii) disposes of or attempts to dispose of its assets other than in the ordinary course of business; (iii) fails to continue its business, makes an assignment for the benefit of creditors; or (iv) if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.

8.5            EFFECT OF SUSPENSION OR TERMINATION

  1. SUSPENSION. Upon our suspension of the Customer License, in whole or in part for any reason, (i) fees will continue to accrue for any access to or use of the System, if any, which we may continue to permit (including fees for support requests and data or file storage), notwithstanding the suspension; (ii) Customer remains liable for all fees, charges and any other obligations which have accrued through the date of suspension; (iii) the Customer License with respect to (and as such all of Customer’s or its User’s attendant rights and licenses under this TOS to access and use) the suspended Services or the suspended features or functionality of any Software (including GLOBALedit® Applications) shall be terminated during the period of the suspension.
  2. TERMINATION. Upon expiration or any earlier termination of the Term : (i) Customer remains liable for all fees, charges and any other obligations which have accrued by Customer and Users through the date of expiration or earlier termination (or such longer period, if any, provided for in Section 8.6); (ii) all of Customer’s or any User’s rights under this TOS (including the Customer License) immediately terminate; (iii) Customer, all then current Users and any individual who at any time during the Term may have been a User must immediately return, or if instructed by us, destroy all of our Confidential Information and any of our other property (if any) then in Customer’s, such User’s or other person’s possession or subject to their control, including without limitation any hardware provided by us; (iv) return or if instructed by us destroy any tangible media on which any of the Software resides; and (v) Sections 1, 4, 5, 6, 7, 8, 9, 10 and 11 and Subsections 2.3, 2.4, 2.5, 2.6, 2.7(a), 2.7(b), 2.7(c)(ii)(iii)(iv) and (v), 2.7(c)(i), 2.7(c)(iiii), 2.7(c)(iv), 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 of this TOS will survive and continue to apply in accordance with their terms.
  3. SUSPENSIONS DUE TO MAINTENANCE OF SYSTEM.  Notwithstanding any provision of this Subsection 8.5 to the contrary, all fees and charges provided by us will continue to accrue and shall be payable by Customer, without deduction during any period of suspension or maintenance of the System as described in Paragraph 2.5(b).

8.6            DATA PRESERVATION IN THE EVENT OF SUSPENSION OR TERMINATION

  1. FOLLOWING EXPIRATION OR TERMINATION BY US WITHOUT CAUSE.  In the event of expiration, or any earlier termination of the Term by us for any reason other than Customer’s or a User’s breach of this TOS or any other or User Customer obligations to us: (i) we will not for the first thirty days following expiration or such earlier termination, take any action to intentionally erase or delete any Customer Content then stored on the System under Customer’s Account; (ii) all applicable data or file storage charges provided will continue to accrue; (iii) we will make provision for up to two (2) of Customer’s employees designated by Customer to us in writing, to have such limited access to the System as we may determine, for the sole purpose of downloading that Customer Content,  in which case our standard fees and charges shall apply and all such downloading must be completed by Customer within the first thirty days following expiration or such earlier termination of the Term.  We may require that Customer pre-pay all or a portion of the fees and charges that we estimate will be applicable to any downloading.  We reserve the right to modify our estimate of applicable downloading and other fees and charges and require Customer to provide additional pre-payment amounts.  In the event that the prepayment of the estimated download and other fees and charges is greater than the actual amount of fees and charges, we will refund any such excess, provided that the excess amount may at our discretion be applied to any amounts owed by you to us under this TOS.  Alternatively, we may offer to provide Customer with such Customer Content in such format and on such media as Customer and Industrial Color may mutually agree upon in writing and at our then published charges for such services. Following the first thirty days after expiration or such earlier termination of the Term, we will have no obligation to continue to store any Customer Content on the System under or in connection with Customer’s Account or otherwise and may erase or delete any or all such Customer Content, whether by removing pointers to such files or data on any of our Servers, overwriting, or otherwise.
  2. FOLLOWING TERMINATION BY US FOR CAUSE.  In the event we terminate the Customer License or the Term for cause as set forth in Subsection 8.4, our obligations under our this TOS cease and we may at any time from and after the effective date of such termination erase or delete any Customer Content then stored on the System under or in connection with Customer’s Account or otherwise, whether by removing pointers to such files or data on any of our Servers, overwriting or otherwise.
  3. FOLLOWING TERMINATION BY CUSTOMER. In the event Customer terminates the Term prior to expiration thereof, Customer must in all events pay us all fees and charges which have accrued but remain unpaid as of the effective date of termination.  Upon our receipt of Customer’s notice of termination (i) we will not take any action to intentionally erase or delete any Customer Content then stored on the System under or in connection with Customer’s Account, for a period of thirty days after the effective date of termination; (ii) Customer may (in the manner provided in this paragraph) retrieve any remaining Customer Content then stored on the System under or in connection with its Account, provided however that Customer has paid us all remaining balances, charges or fees incurred by it up to and including the effective date of termination, as well as any charges for any post termination data or file storage or other use of any of the Services (if any); and (iii) we will provide Customer with the same post termination data retrieval assistance that we generally make available to our other customers, at our then current fees and charges for those services.  Following Customer’s termination of the Term, we will have no obligation to continue to store any Customer Content on the System under or in connection with Customer’s Account or otherwise, and may erase or delete any or all such Customer Content, whether by removing pointers to such files or data on any of our Servers, overwriting, or otherwise.
  4. SUSPENSION OTHER THAN FOR CAUSE. In the event we suspend the Customer License for any reason other than a “for cause” suspension under Subsection 8.4 (without terminating the Term), then during the period of such suspension, (i) we will not take any action to intentionally erase or delete any Customer Content then stored on the System under or in connection with Customer’s Account; (ii) all applicable data or file storage charges will continue to accrue; and (iii) we will make provision for up to two of Customer’s employees designated by Customer to us in writing, to have such limited access to the System as we may determine, for the sole purpose of downloading that Customer Content.
  5. FOLLOWING SUSPENSION FOR CAUSE. In the event we suspend the Customer License for cause under Subsection 8.4 (without terminating the Term) then during the first thirty days of any such suspension (i) we will not take any action to intentionally erase or delete any Customer Content then stored on the System under or in connection with Customer’s Account; (ii) all applicable data or file storage charges will continue to accrue; and (iii) at any time from and after the first thirty days of such suspension, we may in our sole and absolute discretion erase or delete any or all Customer Content stored on the System under or in connection with Customer’s Account, or otherwise whether by removing pointers to such files, data or materials on any of our Servers, overwriting, or otherwise.
  6. COPIES AND ARCHIVES.  Customer acknowledges that we shall be entitled (but not obligated) to retain archives and a copy of any and all Customer Content and other materials or data which Customer or any User may upload to the System and which we in our sole and absolute discretion determine to be needed to respond to any inquiries following expiration or termination of the Term or to evaluate any claims (if any), or queries and requests of law enforcement or other governmental agencies.
  7. 9.              COPYRIGHT.

If you are authorized to act on behalf of a copyright owner, and any Customer Content or other material on the Site or any Service infringes the Intellectual Property Rights of the owner, please notify us in writing and by Certified Mail at:  Industrial Color, Inc., Attention: Legal Department, 32 Avenue of the Americas, 22nd Floor, New York, New York 10013.

To be effective, your notification must provide us with information that meets certain requirements of the Digital Millennium Copyright Act, title 17, United States Code, Section 512, which are summarized as follows:

(i)              a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(ii)            a detailed identification of copyrighted work or works claimed to have been infringed;

(iii)           information sufficient to permit us to locate the allegedly infringing material;

(iv)           information sufficient to permit us to contact you, such as an address, telephone number or email address;

(v)             a statement that you have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent or the law; and

(vi)           sworn statement that the information in your notification is accurate and that you are authorized to act on behalf of the copyright owner of the allegedly infringed material.

  1. 10.           DISCLAIMER & LIMITATIONS ON LIABILITY

10.1         GENERAL DISCLAIMER. The System, Software, Services, Site, Industrial Color Technology, and any other service, technology, software, function, content, image, file, database, data, information, manual, guide, instruction or materials provided by or through us or any of our third party licensors or suppliers under or in connection with this TOS or which at any time or times comprise any part of the System (collectively the “Offerings” or “OFFERINGS”) are provided “AS IS” and “AS AVAILABLE”.   NEITHER WE NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE OFFERINGS TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, AND OUR THIRD PARTY LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.  NEITHER WE NOR ANY OF  OUR THIRD PARTY LICENSORS OR SUPPLIERS WARRANT THAT ANY OF THE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY OR WITHIN ANY OF THE OFFERINGS WILL BE TIMELY, CURRENT OR SECURE. OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE OR THEY WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE OFFERINGS OR THAT WE OR THEY WILL CORRECT ANY DEFECTS.

10.2         INTERRUPTION OF SERVICE.  Neither Industrial Color nor any of its third party licensors or suppliers shall have any liability whatsoever to Customer or any User for or with respect to any delay, outage or interruption of any Service or the unavailability in whole or in part of the System in any respect.  As between Industrial Color and Customer, the foregoing disclaimers and limitation of liability for and with respect to any such delay, outage or interruption set forth in the immediately preceding sentence may be modified if (but then only to the extent) otherwise expressly set forth in a separate written Agreement (if any) executed by and between Industrial Color and Customer in connection which, by its express terms, refers to and amends this Section.

10.3         NO LIABILITY FOR THIRD PARTY WEBSITES OR SOFTWARE.   The Site and/or the Services may contain links to websites that are not under our control (“Third Party Sites”). We provide  such links (if any) as a convenience and the inclusion of any such link does not constitute or imply our endorsement or validation of any Third Party Site.  We are not responsible for or with respect to any third party software, including Customer Installed Programs, or for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site.

10.4         LIMITATIONS OF LIABILITY.

  1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AS BETWEEN CUSTOMER OR ANY OF ITS USERS OR GUESTS (IF ANY) ON THE ONE HAND, AND ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS ON THE OTHER HAND, OUR THIRD PARTY LICENSORS OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO ANY DAMAGES FOR ANY LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT) BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY WHATSOEVER, WHETHER  ARISING FROM OR IN CONNECTION WITH ANY OF THE OFFERINGS, ANY THIRD PARTY SOFTWARE COMPRISING ANY OF THE OFFERINGS, OR OTHERWISE;
  2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS OR AFFILIATES, SHALL BE LIABLE TO CUSTOMER, ANY USER, ANY GUESTS OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, CUSTOMER CONTENT, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH ANY OF THE OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (i) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SYSTEM OR ANY SERVICE OR ANY PART THEREOF; (ii) THE PROVISION OF OR FAILURE TO PROVIDE, OR ANY INTERRUPTION OF, ANY SERVICE; (iii) ANY INFORMATION, SOFTWARE, PRODUCT, SERVICE, DATA, FILE, CONTENT, (INCLUDING BUT NOT LIMITED TO CUSTOMER CONTENT) OR MATERIALS STORED ON, OBTAINED THROUGH, UPLOADED TO OR DOWNLOADED FROM THE SYSTEM OR ANY SERVICE, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING; (iv) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR CONTENT (INCLUDING BUT NOT LIMITED TO CUSTOMER CONTENT); OR (v) ANY ACCESS TO OR USE OF OR ANY INABILITY TO ACCESS OR USE, ANY CUSTOMER CONTENT OR OTHER CONTENT OR MATERIALS.
  3. IN THE EVENT THAT NOTWITHSTANDING THE PROVISIONS OF THE FOREGOING PARAGRAPHS 10.4(a) AND (b), WE (OR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES OR THIRD PARTY LICENSORS OR SUPPLIERS) ARE FOUND LIABLE TO CUSTOMER, ANY USER OR GUEST OR OTHERWISE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY,  THE AGGREGATE AMOUNT OF ALL SUCH LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE GREATER OF $500 OR THE AMOUNT ACTUALLY PAID TO US BY CUSTOMER OR YOU (AS APPLICABLE) FOR AND WITH RESPECT TO THE PARTICULAR SERVICES THAT GIVE RISE TO SUCH CLAIM DURING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUED.
  4. Customer and each User hereby expressly waives any claim that the foregoing exclusions deprive them of an adequate remedy, or cause this TOS to fail of its essential purpose.  Customer and each User furthermore acknowledge that they understand that an essential purpose of the exclusion of warranties and the limitation of liability provided in this TOS is an allocation of risk between Industrial Color on the one hand and Customer and its Users (or Guests) on the other, which allocation of risk is reflected in the applicable fees and other arrangements between Industrial Color and Customer, and that Industrial Color would not be willing to enter into this TOS with Customer or any User (or, if applicable, any Guest) if we were required to bear any additional risk.
  5. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU OR CUSTOMER AND YOU OR CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
  6. 11.           MISCELLANEOUS

11.1         FORCE MAJEURE.  Notwithstanding any provision of this TOS to the contrary, neither we nor any of our Affiliates will be liable in any respect under any theory of liability for any delay, default or failure to perform any obligation under this TOS, or otherwise, due to any cause beyond our or their reasonable control including acts of God, war, terrorism, riot or riots; embargos; strikes or walkouts or other industrial disputes; acts of civil or military authorities, government interference; denial or delays in processing of export license application; fire, floods, earthquakes, storms, hurricanes or other accidents; fuel crises, failure or interruption of telecommunication, electric power, fiber optic cable service or the internet (each a “Force Majeure”).

11.2         ATTORNEYS FEES.  If any legal action or other proceeding relating this TOS or the enforcement of any provision of this TOS is brought by us against Customer or you, we shall be entitled to recover reasonable attorney’s fees, costs and disbursements whether same be incurred before or at trial, on appeal or in any post judgment proceedings (in addition to any other relief to which we may be entitled).

11.3         GOVERNING LAW; VENUE; EQUITABLE RELIEF; REMEDIES CUMULATIVE.

  1. This TOS shall be construed in accordance with, and governed in all respects by, the internal laws of the state of New York and the federal laws of the United States, without giving effect to any principles of conflicts of laws which might cause the application of the laws of any other jurisdiction.  This TOS will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
  2. Our rights and remedies under the this TOS shall be cumulative (and not alternative).  Notwithstanding anything in this TOS to the contrary, in addition to any and all other remedies available to us hereunder, thereunder or otherwise at law or in equity, we may seek and shall be entitled to injunctive or other equitable relief in any state, federal or national court of competent jurisdiction for any actual, threatened or alleged infringement of our or any third party’s Intellectual Property Rights or for any breach or threatened breach of any of the provisions of Sections 2, 3, 4 or 5.  Except as provided in the immediately preceding sentence, any dispute arising from or incident to this TOS shall be adjudicated in any state or federal court in the Borough of Manhattan, City of New York, State of New York.  Customer and each User consent to the exclusive jurisdiction and venue in such courts and agree that each such court shall be deemed to be a convenient forum.

11.4         HEADINGS.  Section, subsection or paragraph headings or captions contained in this TOS are for convenience of reference only, shall not be deemed to be a part of this TOS and shall not be referred to in connection with the construction or interpretation of this TOS.

11.5         US GOVERNMENT.  With respect to the procurement or use of any Service by or for any agency or part of the U.S. Government, any software provided in connection with any Service and any related explanatory written materials are “commercial items” as that term is defined at 48 CFR Section 2.102, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR Section 12.212 or 48 CFR Section 227.7202, as applicable.  Consistent with 48 CFR Section 12.212 or 48 CFR Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computers Software Documentation are being licensed to the U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to Customer or its Users pursuant to the terms, conditions and restrictions of this TOS.  All Computer Software, technical data and documentation were developed exclusively at private expense by Industrial Color, Inc. or its third party licensors or suppliers.

11.6         NOTICES.  Except as otherwise expressly provided in this TOS, notices made by us to Customer or any User under this TOS that affect our customers or any user or our Services generally may be posted on the Site. Notices made by us regarding Customer’s Account specifically (e.g., notices of breach and/or suspension) may be provided to Customer and its Users via the email address provided to us in Customer’s registration for the Services or Account set-up, or via any updated email address Customer provide to us in accordance with standard account information update procedures we may provide from time to time. It is Customer’s responsibility to keep its email address current and Customer and its Users will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not Customer or such User actually receives the email.

For notices made by Customer or any User to us under this TOS and for questions regarding this TOS or the Services, Customer and Users must contact us as follows:

 

Notices required or permitted to be given to us pursuant to this TOS shall be effective only when actually received by us and shall be sufficient if given in writing and (a) hand delivered; or (b) sent by first class mail, return receipt requested and postage prepaid; or (c) by Federal Express or other reputable overnight courier service to us at the following address:  32 Avenue of the Americas, 22nd Floor, New York, New York 10013; Attention: Vice President of Development.  We may change the address or contact person for notice to us, by notifying Customer of such address change in accordance with the notice provisions of this Section.

 

11.7         THIRD PARTY ACTIVITIES. If Customer authorizes, assists, encourages or facilitates another Person to take any action related to the subject matter of this TOS, Customer shall be deemed to have taken the action yourself.

11.8         SEVERABILITY. If any portion of this TOS is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this TOS will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language and is valid and enforceable. If such construction is not possible, the provision will be severed from this TOS, and the rest of the TOS shall remain in full force and effect.

11.9         WAIVERS. The failure by us to enforce any provision of this TOS or any Agreementshall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in a writing executed by one of our authorized officers to be effective.

11.10       SURVIVAL. Sections 1, 4, 5, 6, 7, 8, 9, 10 and 13, and Subsections 1.6, 2.3, 2.4, 2.5, 2.7(a), 2.7(b), 2.7(c)(ii)(iii)(iv) and (v), 2.7(c)(i), 2.7(c)(iiii), 2.7(c)(iv), 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 of this TOS will survive the expiration or any termination of the Term.

11.11       RELATIONSHIP. Each party is an independent contractor with respect to all activities under this TOS and nothing in this TOS is intended or may be construed or operate to create any employment, franchise, joint venture, agency, partnership, escrow, franchise, fiduciary or other relationship other than independent contractors.

11.12       ASSIGNMENT.

  1. We may assign any or all of our rights or delegate any or all of our obligations under this TOS to any third party without any notice to or consent by you or Customer, and for any purpose, including without limitation: (i) collection of unpaid amounts; (ii) in the event of an acquisition, corporate reorganization or merger; (iii) or sale of substantially all of our assets to another Person.  You and Customer each hereby consent to any such assignment or delegation.
  2. Under no circumstances may Customer, any User or any Guest rent, lease, sublicense, assign or otherwise transfer any rights or licenses under this TOS or delegate any of its or their respective obligations under this TOS (whether by operation of Law or otherwise) without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion.  In those cases, if any, where we consent to such assignment or delegation, as a condition thereof, the proposed assignee or transferee must agree in writing to be bound by all of the terms of this TOS.  Any attempted assignment or delegation by Customer, any User or any Guest of any right or obligations under this TOS, whether by operation of Law or otherwise, not specifically consented to by us is void and of no force and effect.  This TOS is binding upon and inures to the benefit of not only the parties hereto but, subject to the provisions of this Section, also their respective transferees, successors or assigns.

11.13       LANGUAGE. All communications and notices to be made or given pursuant to this TOS shall be in the English language.

11.14       CONSTRUCTION.  For purposes of this TOS: (a) whenever the context requires, the singular number shall include the plural, and visa versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders; (b) any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the Construction or interpretation of this TOS; (c) the words “hereof”, “hereunder”, “herein” and words of similar import refer to this TOS as a whole and not to any particular provision of this TOS; (d) as used in this TOS, the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (e) except as otherwise expressly indicated, all references in this TOS to “Sections”, “Subsections”, “Paragraphs”, “Schedules”, “Exhibits” are intended to refer to sections, subsections or paragraphs of this TOS and to schedules or exhibits to this TOS; and (f) in the computation of periods of time from a specified date to another specified date, the word “from” means “from and including”, the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including”.

11.15       ENTIRE AGREEMENT.

  1. As between us and each User or Guest, this TOS incorporates by reference all policies and guidelines posted by us on the Site, including our Privacy Policy (as such policies and guidelines may be modified by us from time to time) and constitutes the entire agreement between us and each User (or Guest) regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you or Customer and us, whether written or oral, regarding such subject matter. In addition, some Services may also be subject to additional or different terms and specific pages on the Site may set out additional terms and conditions, all of which are incorporated by reference into this TOS.
  2. As between us and Customer, this TOS incorporates by reference all policies and guidelines posted by us on the Site including our Privacy Policy (as such policies and guidelines may be modified by us from time to time), and together with any Agreement constitutes the entire agreement between Industrial Color and Customer regarding the subject matter hereof and supersedes any and all prior contemporaneous representations, understandings, agreements or communications between Customer and us, whether written or oral, regarding such subject matter.

UPDATED: January [10], 2014

 

Appendix A

Definitions

The following capitalized words or phrases have the meanings set forth below.:

 

 

  1. Agreement” means any GLOBALedit® Service Agreement, Service Order, Account Application, or other agreement, Statement of Work, that is provided by us and accepted by Customer, either by written or email confirmation or use of the System or Service, including any other written exhibit, schedule, addenda or statement of work from time to time  in connection with the Service.  In the event of a conflict between this TOS and the terms of an Agreement, the terms of this TOS shall govern except where and only to the extent that the Agreement provides that it supersedes specific provisions of the TOS.
  2. Account” means the “sub administrator” or “account group” created by us on our System for Customer’s use and configuration.
  3. An “Affiliate” of a Person means a Person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. As used in the immediately preceding sentence, the term “control” (including the correlative terms “controlling”, “controlled by”, or “under common control”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
  4.           (1)                 “Confidential Information” means and includes any information, data or facts concerning the business, operations, finances, assets, affairs or prospects of Customer or us (each a “Party”) disclosed by that Party (the “Disclosing Party”), to the other Party (the “Recipient”), in written or other tangible form or media, or in electronic form and which is: (i) labeled at the time of disclosure by the Disclosing Party to Recipient as “Proprietary”, “Confidential” or with a legend of similar import; or  (ii) orally disclosed and identified as confidential at the time of such disclosure and which is summarized by the Disclosing Party to the Recipient in writing within fifteen days of such disclosure.

(2)             The immediately preceding paragraph (d)(1) notwithstanding, Confidential Information does not include any information which: (i) was or subsequently becomes generally available to the public other than as a result of an act or omission by Recipient in breach of any confidentiality obligation hereunder (but only with respect to the period of time after which such information was so generally available); or (ii) was lawfully known to Recipient prior to the disclosure of such information to Recipient by Disclosing Party (as shown by Recipient’s files and records existing prior to the time of such disclosure); or (iii) was obtained by Recipient from a third party where such disclosure was made without any restriction as to confidentiality or use and Recipient does not know or have any reason to believe that the third party’s disclosure of such information violated an obligation or duty of confidentiality to Disclosing Party; or (iv) is disclosed by Disclosing Party to any other Person without restrictions on use or disclosure; or (v) was or is independently developed by Recipient without any use of or reference to any Confidential Information, by employees or contractors of Recipient who had no access to any Confidential Information.

(3)             Notwithstanding any provision of this TOS to the contrary, the exceptions set forth in the immediately preceding paragraph (d)(2)do not apply to any Software (including any of the GLOBALedit® Applications) or any related technology, know how, technical data, software tools, algorithms, specifications, flow charts, architecture, protocols, manuals or related documentation, all of which are and shall for all purposes hereunder be considered and treated as the Confidential Information of Industrial Color, its Affiliates or its third party licensors, as applicable.

  1. Customer” means the Person who has subscribed to Services with us, and with respect to whom we have therefore created an Account; and (ii) has specifically authorized you as a designated User to access Services under their Account subject to this TOS. 
  2. Customer Content” means any image, photograph, video, data, text or  other content, file or materials created, or with respect to which all requisite Intellectual Property Rights are owned or licensed, by Customer, a User or a Guest, and which Customer, User or Guest may lawfully and without thereby infringing any Person’s Intellectual Property Rights, grant us the Customer Content License and upload, download, edit, modify or create Derivative Works of, reproduce, store, cache, distribute or display (privately or publicly) through or utilizing the Service.
  3. Customer Installed Programs” means any third party software or, if applicable, Customer’s or any User’s own proprietary software that Customer or such User is required to have installed on their own computers in order to access and properly interact with the System.
  4. Derivative” means with respect to copyrightable or copyrighted materials, a Derivative Work thereof; (ii) for patentable or patented subject matter, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret
  5. Derivative Work” means with respect to copyrightable or copyrighted materials, any translation, abridgement, revision or other form in which and existing work may be recast, transformed or adapted.
  6. User” means and includes those of Customer’s employees, agents, consultants, clients or contractors who are specifically designated by Customer under its Account as the individuals who may access and use a Service on Customer’s behalf pursuant to the TOS; and who hereby agree to comply with, and be bound by the TOS and any other term, condition or restriction relating to access to or use of the System required by us from time to time, and then only for so long as they are not in default thereof.   The aggregate number of Users and as such, the number of individuals authorized by Customer from time to time to access or use any Service under Customer’s Account must not at any given time exceed the maximum number of Users for which Customer has subscribed or otherwise agreed to by Customer and Industrial Color.
  7. GLOBALedit® Applications” means any of our proprietary suite of software application(s) offered by us or through various platforms which are specified by us at www.globaledit.com and subdomains from time to time and may include Ancillary Software and access to features or functionality of which may from time to time be offered by us as part of a Service.
  8. Guest” means an individual who Customer authorizes to access the Lightbox Service feature under Customer’s Account solely for the purpose of viewing, commenting on or downloading Customer Content.

m. “Host Server” means Server(s) on which GLOBALedit® Applications are installed for Users’ non-exclusive use in connection with the Service.

  1. Industrial Color Technology” means and includes any of our proprietary technology, including Software in any form (whether in object code, source code or otherwise), software tools, algorithms, flow charts, user interface designs, architecture, libraries, objects and documentation (both printed and electronic), network designs or configurations, hardware designs or configurations, know-how, trade secrets and any related Intellectual Property Rights (whether owned by us or licensed to us from a third party) and also including any Derivatives, improvements, enhancements or expansions of any of the foregoing conceived, reduced to practice or developed at any time.
  2. Intellectual Property Rights” means any intellectual property rights which may exist or be created under the laws of any country or other jurisdiction anywhere in the world, whether arising under statutory or common law or otherwise, and whether or not perfected, including, without limitation, all (i) patents and patent applications; (ii) industrial property rights; (iii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications, mask work registrations; (iv) moral rights; (v) rights relating to the protection of trade secrets and confidential information or rights of privacy or publicity; (vi) rights associated with trademark, service mark, trade dress, or trade name, including any common law rights and any state or federal trademark or service mark applications or registrations; (vii) divisionals, continuations, renewals, reissues and extensions of any of the foregoing whether in whole or in part(as and to the extent applicable) now existing, hereafter filed, issued or acquired; and (viii) any right analogous to those set forth in this definition; and (ix) any other proprietary rights relating to intangible property.
  3. Laws” means all laws, statutes, ordinances, rules and regulations of any country, state, city or other governmental authority or any department, agency or subdivision thereof, including all orders, judgments, injunctions, awards, decisions or decrees of any court having effect of law.
  4. Ancillary Software” means software applications offered by us from time to time that may or may not be hosted on our Servers, for the purpose of accessing, interfacing, communicating with and/or providing functionality to the GLOBALedit® Applications and may include software loaded on or accessed by or through a Customer’s system or Server, mobile applications, including applications accessed by or through smart phones, mobile devices, cellular devices, tablets, tables or other similar devices.  Ancillary Software includes but is not limited to the GLOBALedit® App for use with iPad®*, GLOBALedit® Transport and GLOBALedit® LightTable. *iPad® is a registered trademark of Apple, Inc.
  5. Person” means a natural person, a corporation (for profit or not for profit), an association, a partnership (general or limited), limited liability company, limited liability partnership, joint venture, trust, government or political department, subdivision or agency, or any other entity.
  6. Server” means a computer or device on a network that manages system resources (e.g. file servers manage file storage; a printer server manages the processing of print jobs; a database server manages the processing of database queries; and a network server manages network traffic), which may include servers on our premises, servers at remote or other locations, servers that Industrial Color has contracted to use and may include servers deployed in one or more data centers or through a content delivery network.
  7. Service” means each of the  services offered by us from time to time on or through the Site or in connection with the GLOBALedit® Applications, which may include hosted services and applications, and Ancillary Software, and other applications and platforms that provide Customer’s User(s) with access to certain features or functionality of GLOBALedit® Applications or other Software  and other services that we may offer or provide from time to time as part of our services, if and as applicable.
  8. Site” means our website on the Worldwide Web portion of the Internet, located at www.globaledit.com, any sub-domain or subdirectory on the website and any other successor or related website used or offered by us from time to time.
  9. Software” means the GLOBALedit® Applications, and any other computer software comprising or hosted on the System or utilized in connection with the System or the Service, including any third party software described in Subsection 2.4 but excluding any Customer Installed Applications.  Software shall also mean and include applications that are not hosted on the System but are used in connection with or provide functionality to the GLOBALedit® Applications, including any Ancillary Software or other Software provided by us.

w. “System” means and includes the Services, Software, the Site, computers, Server(s), routers, cables and any other equipment or connections used or maintained by us, our Affiliates or contractor(s) or Customer to facilitate Customer or its Users access to the System or the Service or use any feature or functionality of any of the GLOBALedit® Applications over the Internet, via mobile device, tablet or other device or in connection with the GLOBALedit® Applications whether or not used or accessed over the Internet.

  1. Term” means the period of time commencing as of (i) the effective date set forth in any Agreement, or (ii) if there is no Agreement the first date that Customer or any User accesses or uses the Service, (the “Effective Date”) and continuing on a month to month basis until the earlier of: (x) the expiration or earlier termination of the term described in any applicable Agreement or as provided for therein or in this TOS, or (y) the date of termination pursuant to Section 8 of this TOS.