Welcome to www.globaledit.com, which along with the globaledit Products (defined below), the globaledit suite of applications, all content and features contained therein, is owned and operated by Industrial Color, Inc. (“globaledit”). The following terms and conditions of service (“TOS”), together with all associated globaledit Purchase Orders (as defined below) (collectively, the “Agreement”), constitute an agreement between globaledit and Customer, Authorized User, and/or you, if applicable, in your individual capacity and in your capacity as an employee, officer, agent, partner, etc… of each organization you represent, including Customer, in connection with any use of the globaledit Products and Services.
globaledit may revise this Agreement (including any policies or agreements which are incorporated by reference herein) from time to time without notice to Customer, Authorized user, and/or you and such revisions shall be effective immediately upon posting to www.globaledit.com. Customer acknowledges and agrees that (i) globaledit may notify Customer of such revisions by posting them to www.globaledit.com or any subdomain and (ii) Customer’s use of the globaledit Products or the Services after such revisions have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute Customer’s acceptance of this Agreement as last revised. In addition, globaledit may occasionally notify Customer of upcoming revisions to this Agreement by email. We therefore recommend that you keep your account information including, but not limited to, your email address, current.
Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Ancillary Software” means software applications offered by globaledit from time to time that may or may not be hosted on globaledit ’s servers, for the purpose of accessing, interfacing, communicating with and/or providing functionality to the globaledit Product(s). Ancillary Software may include software loaded on or accessed by or through a Customer’s system or server, and mobile applications, including applications accessed by or through smart phones, mobile devices, cellular devices, tablets, or other similar devices.
“Authorized User” means an employee, agent, representative, or individual contractor of Customer (including, any sales representatives and retailers), or such other party who has been authorized by Customer to use the globaledit Products and Services, as well as any guest invited by Customer to access and use Customer Content on the globaledit Products or Services.
“Contract Term” is the applicable license or subscription period defined and set forth in the globaledit Purchase Order. If for any reason the globaledit Purchase Order does not provide a Contract Term, the Contract Term shall be twelve (12) months from the Account Start Date or other applicable invoice date or effective date specified in the globaledit Purchase Order.
“Customer” means the person or entity (i) who has subscribed to the globaledit Products and Services with us, and/or with respect to whom we have created a Company Account; and (ii) has specifically authorized you as an Authorized User to access gloabaledit Products and Services under their Company Account subject to this TOS.
“Customer Content” means (i) all images, photographs, videos, data, text, information, content and other materials that Customer or its Authorized Users’ store, process, or otherwise transmit through their use of the globaledit Product, including without limitation, the product catalog, product orders, and order notes, (ii) any and all meta-data on the foregoing, and (iii) information about Authorized Users.
“Customer Installed Programs” means any third party software or, if applicable, Customer’s or any Authorized User’s own proprietary software that Customer or such Authorized User is required to have installed on their own computers in order to access and properly interact with the globaledit Products and Services.
“Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the globaledit Product or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines, or mechanisms that would cause the globaledit Product to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
“Documentation” means any guides and other documentation for the globaledit Product that globaledit provides to Customer either directly or through publication on the SaaS Services or other means made available to the Customer.
“globaledit Product(s)” means the products or applications offered by globaledit in connection with the SaaS Services that are described on the applicable globaledit Purchase Order.
“globaledit Purchase Order” means a document whether not entitled or specifically identified as a “purchase order” that is signed or otherwise agreed to by authorized representatives of both Parties and that sets forth various terms and conditions applicable to the globaledit Products and Services subscribed for by the Customer, which may include any or all of the following: (i) the SaaS Services to be provided by globaledit , (ii) any globaledit Product(s) being ordered; (iii) the Professional Services to be provided by globaledit, if any, (iv) the Contract Term; (v) any applicable Usage Limitations; (vi) the applicable fees; (vii) any applicable Support Plans (as defined in the globaledit Support Plans addendum) and (viii) other mutually-agreed upon terms and conditions. Each globaledit Purchase Order is deemed incorporated into and made a part of this Agreement. To the extent any provision set forth in the globaledit Purchase Order conflicts with any provision set forth elsewhere in this TOS, the provision set forth in this TOS shall govern, unless the globaledit Purchase Order includes the section numbers of this TOS that the Parties agree no longer govern or are modified for the matters covered thereby.
“Intellectual Property Right(s)” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
“Professional Services” has the meaning set forth in Section 2.2.
“Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to globaledit in its sole discretion.
“SaaS Services” means globaledit’s computer software and related software-as-a-service, hosting, maintenance and/or support services made available by globaledit for remote access and use by Customer and its Authorized Users, including any Documentation and Updates thereto and any equipment or technology used by globaledit in connection with the foregoing.
“Services” means the services provided by globaledit under the applicable globaledit Purchase Order, including but not limited to the SaaS Services and the Professional Services, and other services as globaledit may offer or provide from time to time.
“Severe Infraction” means breach or violation by Customer or any Authorized User of their respective obligations not to (nor authorize, permit, or encourage any third party to) do the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the SaaS Services or any Ancillary Software; (ii) modify, adapt, or translate the SaaS Services or any Ancillary Software; (iii) make any copies of the SaaS Services or any Ancillary Software; (iv) resell, distribute, or sublicense the SaaS Services, any globaledit Product, the Usage Data or any Ancillary Software, or use any of the foregoing for the benefit of anyone other than Customer or the Authorized Users unless expressly set forth in the globaledit Purchase Order; (v) use the SaaS Services, any globaledit Product, the Usage Data, the Ancillary Software, or any part of the globaledit system (1) in violation of any applicable law or regulation, for any illegal purpose, or in a way that violates, infringes, or misappropriates globaledit ’s or any third party’s Intellectual Property Rights, as determined by globaledit in its sole and absolute discretion, (2) in order to build a competitive (or substitute) product or service, or (3) for any purpose not specifically permitted in this Agreement; (vi) introduce, post, or upload to the SaaS Services, any globaledit Product, or any Ancillary Software any Prohibited Content; (vii) attempt a denial of service attack on the globaledit system or any part thereof, or attempt to hack or break any security mechanism of or on the system or any Service; (viii) access or use the globaledit system or any Service, globaledit Product, Ancillary Software or Usage Data in a way that poses a security or service risk to globaledit , to any user of Services offered by globaledit , to any third party on the SaaS Service, or to any of globaledit ’s or their respective customers, or may subject globaledit or any third party to liability or damages; or (ix) if globaledit determines, in its sole and absolute discretion, that the provision of any of the Services or globaledit Products to Customer or any Authorized User is prohibited by any applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
“Updates” means any corrections, fixes, patches, workarounds, and minor modifications to the SaaS Service that globaledit provides generally to customers.
“Usage Data” means data concerning the performance and use of the globaledit Product, excluding any Customer Content and any derivatives thereto.
License to Customer. Subject to the terms and conditions of this Agreement and the globaledit Purchase Order, globaledit grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and/or right during the Term (defined below) to access and use, and permit the Authorized Users to access and use, the SaaS Services and the related globaledit Products that are indicated on the globaledit Purchase Order, (excluding Ancillary Software), solely for the internal business purposes of Customer and only under the Company Account (defined below). globaledit shall electronically deliver or make available the SaaS Services, such that no tangible media passes to Customer. Customer will be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the SaaS Service.
Professional Services. globaledit offers its Customers implementation, configuration, program management, training, customisation, and other services relating to the SaaS Services and globaledit Products (the “Professional Services”). Any Professional Services to be provided by globaledit to Customer will be set forth in the globaledit Purchase Order. Each globaledit Purchase Order will describe the Professional Services to be provided by globaledit, the fees to be paid by Customer for such Professional Services, and any other terms and conditions that may be agreed to by the Parties with respect to such Professional Services. All right, title, and interest to and in any software or SaaS Services customization and/or development work product developed pursuant to the Professional Services (including, but not limited to, all copyrights, patents, trademarks, and other intellectual property rights relating thereto) (collectively, the “globaledit Work Product”) will be owned by globaledit and will be deemed to be included in the definition of SaaS Services and licenced to Customer on the terms set forth herein. All right, title, and interest to and in any work product other than globaledit Work Product developed pursuant to the Professional Services (including, but not limited to, all copyrights, patents, trademarks, and other intellectual property rights relating thereto) (collectively, the “Customer Work Product”) will be owned by Customer and will be licenced to globaledit on the terms set forth herein.
globaledit Products. The globaledit Product(s) to be made available under this Agreement will be set forth in the globaledit Purchase Order.
License to Ancillary Software. Subject to the terms and conditions of this Agreement and the globaledit Purchase Order, globaledit grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to install, access and use the Ancillary Software in executable object code form on compatible devices or platforms Customer owns or controls solely for the purpose of accessing and providing functionality to the Services and globaledit Products subscribed for by Customer under the Company Account.
Usage Limitations. The license or subscription, as it applies to a particular Service or globaledit Product, will be subject to any usage limitations (for example, limits on the number of Authorized Users able to use the SaaS Service) that are set forth in the globaledit Purchase Order or this Agreement (“Usage Limitations”). Without limiting any other rights or remedies herein or otherwise available to globaledit, globaledit may, but is not obligated to, monitor and/or enforce Usage Limitations using technical measures.
Download Limitations. In addition to any Usage Limitations set forth in the applicable globaledit Purchase Order or elsewhere in this Agreement, Customer and Authorized User shall not in any single instance, batch, or session download or otherwise transfer from any globaledit Products or SaaS Services any file or files in excess of 250 gigabytes (GB). Violation of this download limitation shall be deemed a Severe Infraction and may result in termination, suspension, or deactivation of the applicable Company Account. Should Customer or any Authorized User desire exceed this download limitation, please contact globaledit at email@example.com to obtain prior written authorization. However, any decision to permit or deny any such request shall made in globaledit’s sole discretion.
Documentation. Customer may copy and use (and permit the Authorized Users to copy and use) the Documentation solely in connection with the use of the Services and globaledit Products under this Agreement.
Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any third party or Authorized User to): (i) allow anyone other than Authorized Users to access and use the Services, the globaledit Products, or any Ancillary Software; (ii) allow an Authorized User to share with any third party his or her Access Credentials to the SaaS Service; (iii) unless expressly set forth in the globaledit Purchase Order, save, store, archive, or create derivative works of any portion of the Usage Data without the prior, written permission of globaledit in each instance, but excluding those reports generated through the intended functionality of the SaaS Service as set forth in the Documentation; (iv) remove or modify any proprietary marking or restrictive legends placed on the SaaS Service, any globaledit Product, the Usage Data, the Documentation or any Ancillary Software; or (v) take any action, or fail to act in a way, that results in a Severe Infraction.
Intellectual Property Rights.
globaledit. As between globaledit and Customer, globaledit retains title to and ownership of the Services, globaledit Products, Usage Data, the Documentation, the Ancillary Software and any content, materials, improvements or derivative works thereof, together with all copyrights, trademarks, and other Intellectual Property Rights relating thereto. Customer will have no rights with respect to globaledit Intellectual Property Rights, the Services, the globaledit Products, the Usage Data, or the Documentation other than those expressly granted under this Agreement.
Customer. As between globaledit and Customer, Customer retains title to and ownership of the Customer Content and any content, materials, improvements or derivative works thereof, together with all copyrights, trademarks, and other Intellectual Property Rights relating thereto. globaledit will have no rights with respect to the Customer Content other than those expressly granted under this Agreement.
Customer Content. Subject to the terms and conditions of this Agreement, Customer hereby grants globaledit during the Term of this Agreement, plus any applicable data preservation period set forth in Section 6.4, a non-exclusive, worldwide, transferable, perpetual, irrevocable, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to globaledit (such as hosting providers), to (i) host, store, cache, use, reproduce, modify, make derivative works of, transmit, distribute and display the Customer Content or any part thereof where and as globaledit deems necessary to render or perform any Service hereunder or otherwise in connection with and in furtherance of the exercise of globaledit ’s rights and obligations under this Agreement; and (ii) use, reproduce, transmit, distribute or display Customer’s and its Authorized User’s trade names, trademarks or service marks as globaledit deems necessary to render or perform any Services hereunder or otherwise in connection with and in furtherance of the exercise of globaledit ’s rights and obligations under this Agreement.
Service Modifications & Maintenance.
Service Modifications. globaledit reserves the right to, and may at any time from time to time, with or without notice: (i) enhance, modify or remove any feature(s) or functionality of any globaledit Product or Service; (ii) add additional service offerings; or (iii) remove service offerings (parts (i) – (iii) collectively, “Service Revisions”). globaledit may notify Customer of any material Service Revisions that will substantially impact Customer’s use of the Services by posting notice of such material Service Revisions on the SaaS Service, support page or globaledit blog. Unless, and only to the extent, globaledit provides otherwise, any Service Revisions will become effective immediately upon their implementation by globaledit. Customer’s and any Authorized User’s continued use of any Service or globaledit Product after any Service Revisions become effective constitutes Customer’s and that Authorized User’s acceptance of the Service Revisions.
Maintenance. At any time from time to time, with or without notice and without globaledit liability to Customer or any Authorized User, all or part of any Services or globaledit Products may be suspended: (i) in order to maintain (e.g. update, modify, upgrade, patch or repair) the globaledit system or any part or aspect of its infrastructure; (ii) as globaledit determines may be required by applicable law; (iii) as globaledit determines to be necessary to protect its system or any part thereof, or any other party of its infrastructure, from unauthorized access or any attack; or (iv) as the result of technical issues or system failures. globaledit will make a good faith effort to notify Customer in advance of any scheduled suspension of the applicable globaledit Products or Services.
Company Account and Onboarding of Authorized Users. In order for Authorized Users to access the Services to which it has subscribed, Customer must first furnish globaledit with such information as globaledit may request in order to set up an account. Once globaledit opens Customer’s account (the “Company Account”), Customer will be solely responsible for the configuration thereof, including selection of Authorized Users, issuance of passwords, Authorized User identification numbers, access codes, private keys, or other Authorized User identification or login credentials (“Access Credentials”). Customer and Authorized Users are solely responsible for the accuracy and confidentiality of Authorized Users’ Access Credentials, as well as for any use, misuse, or communications entered through their Access Credentials. In addition, it is Customer’s sole responsibility to establish the parameters in the Company Account for each Authorized User and to establish control over who can see what Customer Content, who can edit or delete Customer Content, and any other security and confidentiality measures Customer wishes to have in place with respect to the access of its Authorized Users. globaledit may offer to, but shall in no case be obligated to, assist Customer in setting up the Company Account and/or any Authorized User accounts. Regardless of whether globaledit participates in the setup of the Company Account and/or any Authorized User accounts, Customer shall remain solely responsible for, and under no circumstance will globaledit be liable for, any actions or omissions that result from settings in the Company Account. globaledit reserves the right to delete or change Authorized Users’ Access Credentials at any time and for any reason. globaledit will not be liable for any loss or damage caused by any unauthorized use of an Authorized User or Company Account. Customer assumes all responsibility for its actions and the actions of each and every Authorized User or any other party that obtains access or uses the system by or through a Customer or Authorized User’s Access Credentials or Company Account. Customer is responsible for updating all information regarding Authorized Users and Access Credentials if any Authorized User is no longer employed or engaged by Customer. Customer must contact globaledit immediately by e-mailing globaledit at firstname.lastname@example.org and promptly providing globaledit with written notice in accordance with this agreement if customer believes that an unauthorized person may be using the Company Account or that Company Account has otherwise been compromised or if any Company Account information or Access Credentials are lost or stolen.
Fees and Payment Terms.
Fees. Customer will pay globaledit all fees set forth in the globaledit Purchase Order (the “Fees”) in accordance with the applicable payment schedules set forth in the globaledit Purchase Order. All payments of Fees are non-refundable.
Payment Terms. All Fees and other amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. Overdue payments will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from due date until paid. Customer will pay any sales, use, or other tax related to the licenses, subscriptions, and services provided hereunder, exclusive of income taxes and payroll taxes relating to globaledit’s employees. Customer’s failure to pay all Fees and applicable taxes when due shall be a material breach by Customer of this Agreement and globaledit may, in its sole and absolute discretion (and without prejudice to any other rights or remedies globaledit may have hereunder, or otherwise at law or in equity) temporarily or permanently suspend the Customer’s access and use of the globaledit Product(s) or Service(s) or otherwise deny any Service, or terminate the Agreement. Customer is responsible for any costs that globaledit incurs in collecting amounts from Customer, including reasonable attorney’s fees, court costs and collection agency fees.
Disputed Fees. Customer may dispute fees associated only with Upgrade Packages (as defined in the Purchase Order) or Services beyond those included on signed globaledit Purchase Order, by doing so in writing within fifteen (15) days of invoicing for such fees. Fees set forth on signed globaledit Purchase Orders are not eligible for dispute. globaledit shall administer fee disputes in its sole discretion; globaledit is only obligated to adjust an invoice or payment amount or provide a credit for overpayment in the event of a mis-calculation.
Term and Termination.
Term of the Agreement. The term of this Agreement shall commence on the Account Start Date or other applicable invoice date or effective date specified in the globaledit Purchase Order and continue for the Contract Term, unless otherwise terminated as provided in this Section. Thereafter this agreement shall be automatically renewed for successive terms equivalent to the Contract Term.
Termination. Either Party may terminate the Agreement upon written notice to the other Party if there are no current globaledit Purchase Orders in effect and none have been effective within the previous sixty (60) days.
Termination by Customer. Customer may terminate the Agreement at the end of the Contract Term specified in the globaledit Purchase Order by providing written notice to globaledit within a termination notice period occurring between sixty (60) and ninety (90) days prior to the end of the applicable Contract Term, in which case this Agreement shall terminate upon the expiry of the applicable Contract Term. Failure to provide notice of termination within the period set forth in this section will result in automatic renewal in accordance with Section 6.1.1 above. Notwithstanding Customer’s notice of termination under this Section, all remaining Fees and amounts set forth under any outstanding globaledit Purchase Order are due and payable to globaledit.
Termination by globaledit. In addition to the termination rights set forth in Sections 5.3 and 6.1:
globaledit may terminate the Agreement or suspend Customer’s or any Authorized User’s access to globaledit Products and/or Services in globaledit’s sole and absolute discretion if Customer, or any of its Affiliates, employees, contractors or Authorized Users: (i) use any of globaledit’s Intellectual Property Rights other than as expressly permitted herein; (ii) is in default or breach of any provisions of this Agreement; (iii) is in default of any of its payment obligations to globaledit; or (iv) commences liquidation or dissolution proceedings, disposes of or attempts to dispose of its assets other than in the ordinary course of business, fails to continue its business, makes an assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
globaledit may, in its 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 Authorized Users or otherwise, or terminate this Agreement or any globaledit Purchase Order, if Customer or any Authorized User commits a Severe Infraction.
globaledit may terminate the Agreement or suspend Customer’s or any Authorized User’s access to globaledit Products and/or Services for any or no reason, at globaledit’s convenience, by providing Customer at least fifteen (15) days prior written notice.
Termination of an Authorized User.
Customer may terminate any Authorized User’s right to access and use the globaledit Products and Services by changing the Authorized User configurations in the Company Account.
globaledit may terminate the right of any Authorized User to access and use the globaledit Products or Services immediately and without notice if: (1) Customer revokes its status as an Authorized User; (2) an Authorized User fails to comply with any of the terms or conditions of this Agreement; (3) Customer defaults under or breaches any of the provisions of this Agreement; or (4) either globaledit or Customer terminate the Agreement, or a globaledit Purchase Order, as applicable, for any reason or no reason.
Effect of Expiration or Termination. If this Agreement is terminated for any reason or expires, all licenses and/or subscriptions to the SaaS Services, globaledit Product(s), the Usage Data, the Documentation, and the Ancillary Software will also terminate upon the effective date thereof. If a license or subscription term expires or is terminated, then this Agreement will remain in effect (unless and until terminated in accordance with Section 6.2) with respect to any licenses or subscriptions that remain in effect. Upon any termination of this Agreement and/or any termination or expiration of a license or a subscription, the following provisions will apply (except with respect to any surviving license or subscription): (1) Customer will pay globaledit for any amounts payable hereunder as of the effective date of such termination or expiration; and (2) if Customer has not extracted all Customer Content from the SaaS Service prior to the effective date of expiration or termination, then Customer will pay globaledit any fees associated such extraction that globaledit may charge, and which for which globaledit may reasonably require payment before Customer may extract its Customer Content.
Data Preservation in the Event of Suspension or Termination
Termination or Suspension by globaledit for Convenience or Late Payment; Termination by Customer. If globaledit terminates this Agreement or any globaledit Purchase Order for any reason other than a Severe Infraction, or if Customer terminates this Agreement or any globaledit Purchase Order in accordance with Section 6.2.1, then for the first thirty (30) days during such suspension or following the effective date of such termination, as applicable, and only upon receipt by globaledit of all Fees due and payable by Customer (including the fees described in (d) below):
globaledit will not take any action to intentionally erase or delete any Customer Content then stored on the SaaS Service under the Company Account;
all applicable data or file storage charges provided will continue to accrue;
globaledit will make provision for up to two (2) of Customer’s employees designated by Customer to globaledit in writing, to have such limited access to the SaaS Service as globaledit may determine, for the sole purpose of downloading that Customer Content;
In the event of termination in accordance with this Section 6.4.1, globaledit may require that Customer pay all or a portion of the fees and charges that globaledit estimates will be applicable to any Customer Content retrieval in advance of allowing such retrieval to occur. globaledit reserves the right to modify its estimate of applicable retrieval and other fees and charges and require Customer to provide additional pre-payment amounts. If any applicable fees, as adjusted in accordance with this Section 6.4.1(d), are not paid in advance, then Customer shall pay all amounts due to globaledit immediately upon receipt of an invoice for such fees and other charges. In the event that the pre-payment of the estimated retrieval and other fees and charges is greater than the actual amount of fees and charges, globaledit will refund any such excess, provided that the excess amount may at its discretion be applied to any amounts owed by Customer to globaledit under this Agreement. Alternatively, globaledit may offer to provide Customer with such Customer Content in such format and on such media as Customer and globaledit may mutually agree upon in writing and charged at globaledit’s then current rates for such services.
In the event of termination in accordance with this Section 6.4.1, globaledit will have no obligation to: (i) continue to store any Customer Content under or in connection with the Company Account or otherwise after thirty (30) days from the suspension or early termination described in this paragraph; or (ii) provide Customer with access to the Customer Content described in this paragraph if Customer has not paid all Fees and other charges described in this paragraph in full. After thirty (30) days from the suspension or early termination described in this paragraph, globaledit may erase or delete any or all Customer Content, whether by removing pointers to such files or data on any of its servers, overwriting, or otherwise.
Termination or Suspension by globaledit for Cause. If globaledit terminates this Agreement or any globaledit Purchase Order due to a Severe Infraction, or if globaledit suspends the Company Account due to a Severe Infraction without terminating the Agreement or globaledit Purchase Order, as applicable, globaledit ’s obligations under this Agreement and any globaledit Purchase Order cease and globaledit may at any time from and after the effective date of such termination erase or delete any Customer Content then stored by globaledit under or in connection with the Company Account or otherwise, whether by removing pointers to such files or data on any of our servers, overwriting or otherwise.
Copies and archives. Customer acknowledges that globaledit 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 Authorized User may upload to the system.
Survival. Any provision of this Agreement that by its nature extends beyond the expiration or any earlier termination of the Agreement, or the authorization of any Authorized User hereunder to access or use the globaledit Products or any Service, shall remain in effect.
Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means: the SaaS Services, the globaledit Products, the globaledit Work Products, the Ancillary Software, any and all object code and source code relating thereto, the Documentation, all pricing and fees relating to the Services and globaledit Products, as well as any non-public information or material regarding globaledit’s legal or business affairs, finances, technologies, customers, employees, contractors, Affiliates, properties, or data; Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Customer or its Authorized Users; (b) is documented as being known to the Customer or its Authorized Users prior to its disclosure by globaledit; (c) is independently developed by the Customer or its Authorized Users without reference or access to the Confidential Information of globaledit and is so documented; or (d) is obtained by Customer or its Authorized Users without restrictions on use or disclosure from a third person who, to the Customer’s or its Authorized Users’ knowledge, does not owe a duty of confidentiality to globaledit.
Use and Disclosure of Confidential Information. Customer or its Authorized Users will, with respect to any Confidential Information disclosed by globaledit: (i) use such Confidential Information only in connection with the Customer’s or its Authorized Users’ performance of this Agreement; (ii) subject to Section 7.4 below, restrict disclosure of such Confidential Information within the Customer’s or its Authorized Users’ organization to only those of Customer’s or its Authorized Users’ employees and consultants who have a need to know such Confidential Information in connection with the Customer’s or its Authorized Users’ performance of this Agreement; and (iii) not disclose such Confidential Information to any third party unless authorized in writing by globaledit to do so.
Protection of Confidential Information.Customer or its Authorized Users will protect the confidentiality of any Confidential Information disclosed by globaledit using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
Compliance by Personnel. Customer or its Authorized Users will, prior to providing an employee or consultant access to any Confidential Information of the globaledit, inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with Customer’s or its Authorized Users’ obligations hereunder with respect to such Confidential Information.
Required Disclosures. If Customer or its Authorized Users are requested to disclose any of the globaledit’s Confidential Information pursuant to any judicial or governmental order, Customer or its Authorized Users will not disclose the Confidential Information without first giving globaledit written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
Feedback. During the term of this Agreement, Customer or its Authorized Users may elect to provide globaledit with feedback, comments, and suggestions with respect to the Services, the globaledit Products, or the Usage Data (“Feedback”). Customer agrees, on behalf of itself and its Authorized Users, that globaledit shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or such Authorized User.
Data Protection and Use.
Data Security. globaledit will use commercially reasonable efforts to protect the security of the Customer Content on globaledit’s SaaS Service in accordance with industry standards. However, globaledit (and any third-party hosting provider that globaledit may engage) makes no representation or warranty regarding the security, availability, protection and backup of any Customer Content, and Customer and its Authorized Users acknowledge that they alone bear sole responsibility for backup of any Customer Content. Customer and its Authorized Users (and not globaledit) are responsible for (a) routinely archiving all Customer Content, and (b) keeping any Customer Installed Programs or any other software that Customer or any Authorized User use or run in connection with any Service current with the latest security patches or updates. globaledit will have no liability to Customer, any Authorized User, or any third party for or in connection with any unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content. Some of the Customer Content may be subject to governmental regulation or otherwise may require security measures beyond those set forth herein. Customer agrees not to provide globaledit any such data, directly or through the globaledit Product, unless globaledit has first agreed in writing to provide additional required security measures.
Aggregated Data. globaledit collects Usage Data in connection with the SaaS Service. globaledit may combine this Usage Data with other data (including the Customer Content), and use such combined data, or a subset thereof, in an aggregate and anonymous manner. Customer hereby agrees that globaledit may collect, use, publish, and vend such aggregated and anonymized data provided such usage does not identify Customer.
Digital Millennium Copyright Act. globaledit will remove infringing materials in accordance with the Digital Millennium Copyright Act if we are properly notified that the content infringes copyright. If you believe that your content has been copied in a way that constitutes copyright infringement, 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. Your message must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed.
A description of where the material that you claim is infringing is located on the SaaS Service, sufficient for globaledit to locate the material.
Your address, telephone number, and email address.
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
If you believe that your work has been removed or disabled by mistake or misidentification, please notify our Copyright Agent by sending us notice at the address specified above.
Representations and Warranties; Disclaimer.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement, if it is an entity; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party (if an entity) and have been duly authorized by all necessary corporate action on the part of such Party, if and as applicable, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
Additional Representations and Warranties of globaledit. In addition to the representations and warranties set forth in Section 9.1, globaledit represents and warrants to Customer that the Professional Services shall be performed in a professional and workmanlike manner.
Additional Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 9.1, Customer represents, warrants and covenants to globaledit that: (i) the Customer Content contains no Prohibited Content and that Customer has the right to provide globaledit the Customer Content in accordance with this Agreement; (ii) no Customer Content violates, misappropriates, or infringes any rights of any third party; (iii) each Authorized User agrees to comply with the terms and conditions set forth in this Agreement; (iv) it will not use or attempt to use any globaledit Product or Service, or any part thereof, or any Customer Content, to engage in any impermissible or unlawful advertising, marketing or other activities, or 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, or in any other way that violates any applicable laws; and (v) 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 shall not appoint, authorize or designate any individual to act as an Authorized User or Guest under the Company Account if that individual resides in any country on the United States Office of Foreign Assets Control Sanctions List, and no such individual may post any Customer Content to or access any Service or globaledit Product made available by globaledit .
Disclaimer.EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE globaledit PRODUCTS, THE SERVICES, THE USAGE DATA, THE globaledit WORK PRODUCT, THE ANCILLARY SOFTWARE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER globaledit NOR ITS SUPPLIERS MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
THE SERVICES OR GLOBALEDIT PRODUCTS MAY FROM TIME TO TIME CONTAIN OR COMPRISE, OR OTHERWISE REQUIRE USE OF, THIRD PARTY SOFTWARE LICENSED TO globaledit PURSUANT TO ONE OR MORE THIRD PARTY LICENSE AGREEMENTS. NEITHER CUSTOMER NOR ANY AUTHORIZED USER ACQUIRES ANY RIGHT OR LICENSE IN OR TO ANY SUCH THIRD PARTY SOFTWARE BY VIRTUE OF THIS AGREEMENT OR OTHERWISE, NOR 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. globaledit MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER globaledit, NOR ANY OF ITS AFFILIATES, THIRD PARTY LICENSORS OR SUPPLIERS IS RESPONSIBLE FOR ANY ACCESS TO OR USE OF THE COMPANY ACCOUNT OR ANY AUTHORIZED USER ACCOUNT OR ANY ACTIVITIES THEREUNDER INCLUDING ANY ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS OR ANY FAILURE TO STORE ANY CUSTOMER CONTENT.
TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Limitation of Liability.
Generally.IN NO EVENT WILL globaledit OR ANY OF ITS AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES, THIRD PARTY LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER, OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. globaledit’s AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) US $500.00 or (b) THE AVERAGE MONTHLY FEE PAID BY CUSTOMER TO globaledit UNDER THE APPLICABLE globaledit PURCHASE ORDER globaledit, CALCULATED BY AVERAGING THE ACTUAL FEES PAID BY CUSTOMER UNDER THE APPLICABLE globaledit PURCHASE ORDER globaledit DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM. NO ACTION ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN SIXTY (60) DAYS AFTER THE INCIDENT GIVING RISE TO SUCH ACTION HAS OCCURED.
Interruption of Service. Neither globaledit nor any of its agents, representatives, contractors, Affiliates, third party licensors or suppliers shall have any liability whatsoever to Customer or any Authorized User for or with respect to any delay, outage or interruption of the Services or the unavailability in whole or in part of the Services in any respect. As between globaledit 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 Service Level Addendum (“SLA”), if any, executed by and between globaledit and Customer in connection with and appended to the Agreement as an Exhibit thereto and which, by its express terms, refers to and amends this section.
Indemnification. Customer will defend, hold harmless, and indemnify globaledit and its officers, directors, and employees from and against any and all claims, actions, and lawsuits brought by a third party (“Third-Party Claims”) to the extent the Third-Party Claim is based on: (i) an assertion that the Customer Content or a Customer Installed Program infringes or misappropriates any patent, copyright, trade secret or other intellectual property right of a third party; (ii) Customer’s or its Authorized Users’ breach of this Agreement or violation of any applicable laws; or (iii) any act, omission, or misconduct of Customer, any of its employees, contractors, or any Authorized User. globaledit will promptly notify Customer of any claim which globaledit becomes aware of and which globaledit believes to be subject to indemnification under this section; provided that failure to promptly notify Customer shall not affect Customer’s indemnification obligations hereunder except to the extent that such failure to promptly notify Customer materially prejudices Customer’s ability to defend the claim. At globaledit ’s option, Customer will have the right to defend against any such claim(s) with counsel of Customer’s own choosing (subject to a conflicts assessment), and to settle such claim as Customer deems appropriate, provided that Customer (nor any person acting on Customer’s behalf) may not enter into any settlement without globaledit ’s prior written consent (which may be conditioned or withheld in its sole and absolute discretion) and provided that globaledit may, at any time, elect to take over control of the defense and settlement of any claim.
Notices. Unless otherwise specified herein, all notices and other communications between the Parties required or permitted by this Agreement or by applicable law (other than routine operational communications), will be deemed properly given, if given by (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; (iii) nationally recognized private courier service; or (iv) facsimile, to the respective addresses of the Parties set forth below or such other addresses as the respective Parties may designate by like notice from time to time. Notices so given will be effective upon (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first:
If to Customer: the address set forth in the globaledit Purchase Order
Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.
Assignment. This Agreement may not be assigned or otherwise transferred by either Party without the prior written consent of the other, which consent will not be unreasonably withheld or denied, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void. However, either Party may, without the consent of the other Party, assign this Agreement to any person or entity that is acquiring all or substantially all of its assets or which is a successor by merger, consolidation, acquisition of stock or assets, or other business combination to such Party (a “Permitted Assignment”); provided that such Party provides written notice of the Permitted Assignment to the other Party. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.
Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control of and not caused by the negligence of such Party.
Choice of Law. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including, but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
Modification. globaledit may modify any policy or other terms referenced in this Agreement or posted on the SaaS Service from time to time, including by modification, deletion, or addition of any part(s) thereof. Except as set forth in the preceding sentence, no modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.
No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Publicity. During the term of this Agreement, globaledit may refer to Customer as a customer of the globaledit Products and Services. In connection therewith, globaledit may use Customer’s name and corporate logos. Any goodwill arising from the use of such name and logos shall inure solely to Customer’s benefit. All other publicity regarding this Agreement shall be mutually agreed to and coordinated by the Parties.
Export Customer shall not export or re-export, either directly or indirectly, the SaaS Services, globaledit Products, the Usage Data, the Ancillary Software, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer shall not permit Authorized Users or any third parties to access or use the SaaS Services, globaledit Products, the Usage Data, or the Ancillary Software in violation of any United States export embargo, prohibition, or restriction.
U.S. Government. With respect to the procurement or use of any Service, globaledit Product or Ancillary Software 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 Authorized Users (a) only as Commercial Items; and (b) with only those rights as are granted to Customer or its Authorized Users pursuant to the terms, conditions and restrictions of this Agreement. All Computer Software, technical data and documentation were developed exclusively at private expense by Industrial Color, Inc. or its third party licensors or suppliers.
Counterparts. This Agreement, and any globaledit Purchase Order may be executed in counterparts (which may be exchanged by facsimile or .pdf copies), each of which will be deemed an original, but all of which together will constitute the same Agreement.
CUSTOMER, AUTHORIZED USER, AND/OR YOU ACKNOWLEDGE THAT CUSTOMER, AUTHORIZED USER, AND/OR YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
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