Terms of Service - Broadcaster – Grabyo

Terms of Service – Broadcaster

Last updated: March 7th, 2018

This Master Service Agreement (the “MSA” or “Terms of Service”) is by and between Grabyo and the entity or individual (“Company”) identified in the order executed by Grabyo and Company or identified in connection with the Grabyo Account registration process (in each case, a “Platform Services Agreement” or “Order”), and governs Company’s use, and Grabyo’s provision, of the Services. Each Order, and any exhibit or schedule to an Order, is subject to this Agreement and is incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.
GRABYO RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT GRABYO SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
COMPANY ACKNOWLEDGES AND AGREES THAT ANY AND ALL USES OF THE SERVICES ARE FURTHER SUBJECT TO GRABYO’S PRIVACY POLICY LOCATED AT HTTP://ABOUT.GRABYO.COM/PRIVACY-POLICY (“PRIVACY POLICY”) AND ACCEPTABLE USE POLICY LOCATED AT HTTP://ABOUT.GRABYO.COM/ACCEPTABLE-USE-POLICY (“AUP”), EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY GRABYO WITH OR WITHOUT NOTICE.

1. Definitions

1.1 The Services

The “Services” means those online services that Company has licensed from Grabyo, including Grabyo Studio, Grabyo Producer, Grabyo Mobile, Grabyo Video Player and/or such other services as Grabyo makes available to Company from time to time. The various services comprising the Services enable Company to upload, transcode, manage and distribute Company’s Content and all other products and/or services provided by or through Grabyo and/or its Suppliers pursuant to a Contract including (but not limited to) technical support, engineering work, and/or any other professional services.

1.2 “Content” means all content, data, video, templates or information in any form that is uploaded to or made available in Company’s Account(s) by Company or on Company’s behalf. The Services does not include Company’s Content or the Content of any other Grabyo customer. By using the online, user interfaces or APIs (collectively, the “U/I”) provided as part of the Services, Company may make choices about its Content, including, depending on the particular Services being used by Company, the presentation, management and distribution of Content. Company may change its selections as permitted by the Services. In all cases, however, Company’s most recent selections in the U/I, as reflected in Grabyo’s database, shall be conclusive in the event of any dispute concerning Company’s selections.

1.3 “Account” means a single point of entry via the U/I through which Company, a Company’s representatives or employees or licensed third parties (collectively “Users”) access and use the Services.

1.4 “Demo Account” means a temporary account provided to Company by Grabyo or its Resellers that permits the Company, or its Users, as a potential customer to use the Services on a temporary trial basis for a limited time period.

1.5 “Fees” means all fees relating to the Services including, without limitation, all fees set forth in an Order.

1.6 “Player” means Grabyo’s cross-platform video player.

1.7 “Suppliers” means, individually and collectively, Grabyo’s licensors, suppliers, vendors, resellers, and partners.

2. Access to the Services; Free Accounts; Beta Services

2.1 Access to the Services

Access to Company’s Services Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Company. Except where Grabyo has actual notice of loss, theft or unauthorized use of Company’s Credentials,

  • (i) Company is responsible for all activity occurring in Company’s Account(s), and Company shall bear full responsibility and liability (and Grabyo shall have no responsibility or liability) for failure to secure passwords or enforce proper utilization of credentials.
  • (ii) Grabyo shall have the right, without further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate Company’s use of the Services
  • (iii) An additional level of access security for the Company’s Account(s) is provided by Grabyo using multi-factor authentication (“MFA”) and Company is responsible for the set-up, configuration and management of MFA for all users and Company Account(s). While Grabyo recommends the utilization of MFA by all of its clients, including Company, Company acknowledges that no security or authentication system is impenetrable or unable to be hacked.

2.2 Free Accounts

Grabyo may from time to time offer free Services Accounts, such as trial Accounts. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. Grabyo may terminate any free Account at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE ACCOUNTS.

2.3 Beta Services

Grabyo may from time to time offer products or services that are not generally available to all Grabyo customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited release or pre-release. Such Beta Services are still in development and Grabyo may change aspects of the Beta Services at any time, including prior to general release. Company will not be obligated or required to use any Beta Services. Grabyo may cease offering any Beta Services, or cease offering such services at no cost, at any time and without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.

2.4. Automatic Updates/Communication Features

The Services automatically communicate with Grabyo’s servers to check for automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches for the particular Services purchased under the Contract(s). At no charge to Company, Grabyo may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). All Updates shall be deemed part of the Services and subject to the same terms and conditions of these Terms of Service. Grabyo may (but is not required to) post notices from time to time on the Grabyo website explaining Updates and provide instructions associated with such Updates.

3. Company’s Obligations

3.1 Restrictions on Use

(a) Company covenants that it will not:

  • (i) use the Services in any illegal or unlawful manner or for any illegal or unlawful purpose
  • (ii) perform any act which is intended to harm Grabyo or the Services.

(b) Content: Company is solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third-party rights, as further described therein and elsewhere in these Terms of Service.

c) Grabyo, its Suppliers and the Services are passive conduits of the Content and Grabyo and its Suppliers have no obligation to undertake to pre-screen, edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto.

d) Grabyo Video Player: The Player contains software to track and capture user activity to assist Grabyo in optimizing the Services and Company’s use of the Services. Company’s use of the Player constitutes acceptance of this feature. For further information on how such software is used, please review the Privacy Policy. If Company or its Users enable syndication of Content on third party websites (which may be permitted via Company Account), Company, and not Grabyo, is solely responsible for notifying each such third party website that Grabyo may track information regarding the third party users who view Content using the Grabyo Video Player.

e) Company is responsible for Content provided by third parties that may contain errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, and/or infringing. Under no circumstances will Grabyo or its Suppliers be liable in any way for Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services.
f) Company acknowledges that Grabyo and its Suppliers are not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Grabyo and its Suppliers assume no responsibility for screening or monitoring for possible:

  • (i) infringement or enforcing rights of the Company or any third party rights with respect to Content;
  • (ii) unlawful, inappropriate or unpermitted use
  • (iii) libel, falsehoods, errors or omissions contained in Content
  • (iv) noncompliance with applicable laws, rules, or regulations, or court or regulatory agency orders.
  • (v) Company acknowledges and agree that by using the Services, Users may be exposed to Content that they deem offensive, indecent or objectionable and that Grabyo does not guarantee that any Content will be to the satisfaction of Users.

Grabyo will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and Grabyo shall have no obligation to do so, provided, however, that in addition to any other rights Grabyo may have, Grabyo reserves the right to suspend Company’s access to and/or use of the Services, or any particular Content, to the extent that Grabyo reasonably determines, in good faith, that such suspension is necessary to comply with applicable law (including without limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant harm to any end user or the Services; provided further, however, that in such event, Grabyo shall use commercially reasonable efforts to suspend only that portion of the Services, or the particular Content, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.

3.2 Obligation to Pay

Company shall pay Grabyo the fees set forth in each Order in accordance with the payment terms set forth in this Agreement and the Order. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company’s Orders (except for taxes on Grabyo’s income). All payments shall be made without deduction for withholding taxes, or set-off. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay applicable fees when payment is due, then in addition to any other rights Grabyo may have, Grabyo shall have the right to suspend delivery of all or a portion of the Services to Company, provided that Grabyo has supplied Company prior notice and 5 days’ opportunity to cure. If Grabyo pursues collection efforts against Company due to Company’s failure to pay fees due under this Agreement, Company shall pay Grabyo’s reasonable costs of collection, including any attorneys’ fees related thereto.

4. Grabyo’s Obligations

Grabyo agrees to:

(a) make the Services available to Company in accordance with any active Order and this Agreement

(b) perform any other obligations expressly identified in any current Order.

5. Term

5.1 Term of this Agreement

This Agreement commences on the Effective Date and shall remain in effect until all of Company’s Orders have expired or have been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Company’s initial Order or, if such Order was submitted online, the date Company submits the online Order. If Company is using the Services pursuant to a trial Account and does not submit an Order prior to the conclusion of the trial period, this Agreement will terminate at the end of the trial period or, if later, the date Grabyo closes such trial Account.

5.2 Term of Orders

The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Company submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Order Effective Date (unless a different term is set forth in Company’s Order) (“Initial Term”), following which the Order shall automatically renew for successive 1-year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or, if applicable, the current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Company or Grabyo, shall not automatically renew, but shall remain in effect for the period of time indicated during the Account registration process. Fees for the Services shall automatically increase by 5% each year after the Initial Term.

5.3 Termination

Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders, if:

(a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws;

(b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach.

In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by Grabyo, all fees and expenses payable under any such Orders shall become immediately due and payable. The parties agree that, in such a termination, Grabyo’s damages may be difficult to ascertain, therefore the parties agree that Company shall pay to Grabyo seventy-five percent (75%) of the remaining amounts payable under any terminated Orders as liquidated damages, and not as a penalty.

6. Title

As between the parties, Grabyo owns all right, title and interest in and to the Services. This Agreement does not convey to Company any ownership interest in or to the Services, but only a limited license to use the Services that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content. This Agreement does not convey to Grabyo any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.

7. Licenses

7.1 License to Use the Services

Grabyo hereby grants Company a limited, revocable (for breach of the licensing terms or violation of applicable law), non-sublicensable, non-transferable (except as provided in Section 15.2), non-exclusive, worldwide license during the Term to use the applicable Services for which Company has submitted an Order or registered online. All rights not expressly granted to Company are reserved by Grabyo. Except as expressly permitted by Grabyo in writing, Company shall not:
(i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or any part thereof in any way;
(ii) modify or make derivative works based upon the Services or reverse engineer, decompile or disassemble the Services.

7.2 License to Content

Company hereby grants Grabyo a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 15.2), non-exclusive, royalty-free, fully paid-up, worldwide license to perform all such acts with respect to the Content as are necessary for Grabyo to provide, maintain, or troubleshoot the Services in accordance with this Agreement and Company’s selections made through the U/I. All rights not expressly granted to Grabyo are reserved by Company.

7.3 License to Feedback, Suggestions or Recommendations

Company hereby grants to Grabyo an unlimited, irrevocable, perpetual, sublicensable, transferable, non-exclusive, royalty-free, fully paid-up, worldwide license to use and/or incorporate into Grabyo’s services any feedback, suggestions and/or recommendations provided to Grabyo by Company regarding the Services.

8. Disclaimers, Representations and Warranties

8.1 Disclaimers

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GRABYO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM GRABYO SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8.2 Representations and Warranties

Company represents and warrants that:

(a) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement;

(b) the Content, and its use through the Services, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights. Company shall:

  • (i) obtain all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content;
  • (ii) obtain any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives);
  • (iii) make any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees);
  • (iv) obtain public performance licenses from public performance rights collection organizations;
  • (v) take any other actions necessary in order to obtain the appropriate license to the Content.

(c) Company shall comply with all applicable laws, rules, regulations, and court or regulatory agency orders or actions;

(d) Company shall be solely responsible and liable for any Prohibited Content; and

(e) Company shall abide by these Terms of Service.

9. Indemnification

Each party agrees to indemnify, subject to Section 10, the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third party for or alleging infringement or misappropriation of such third party’s intellectual property rights (each a “Claim”).

The indemnification obligations in this section are conditioned upon:

(a) written notice by the indemnified party to the indemnifying party promptly of the indemnified party’s receipt of any Claim for which indemnification is sought;

(b) indemnifying party shall select counsel and control any litigation and settlement; and

(c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request.
Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim (i) if such action requires or contains an admission of guilt or liability of indemnified party and (ii) unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.

10. EXCLUSIONS/LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT IN THE CASE OF COMPANY MISAPPROPRIATION OF GRABYO INTELLECTUAL PROPERTY OR USE OF CONTENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF A PARTY IS MADE AWARE THAT SUCH DAMAGES ARE LIKELY. EXCEPT IN THE CASE OF COMPANY (i) MISAPPROPRIATION OF GRABYO INTELLECTUAL PROPERTY OR (ii) USE OF CONTENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE, IN AGGREGATE, TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE GREATER OF (A) $10,000.00, OR (B) THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACTION OR OMISSION GIVING RISE TO THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY IS USING THE SERVICES VIA A FREE ACCOUNT, COMPANY’S MAXIMUM LIABILITY TO GRABYO IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY GRABYO.

11. Third-Party Services

Grabyo may, from time to time, inform its customers of third-party services that can be used in connection with the Services. Company’s use of any third-party service in connection with the Services, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third-party service provider. Grabyo makes no representation or warranty with regard to any such third-party service, even if such provider is certified by Grabyo or selected as a premier provider (or similar designation) by Grabyo, and Grabyo shall not be responsible to Company in any manner for any such third-party service. Grabyo does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.

12. Confidentiality

Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes, without limitation:

(a) all intellectual property;

(b) financial and business information (including pricing);

(c) any other information designated in writing as “Confidential.”
Confidential Information does not include (i) Content; (ii) information that has become publicly known through no breach by Company or Grabyo of these confidentiality obligations; (iii) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; (iv) information required to be disclosed by law; or (v) the fact that Company is a customer of Grabyo.

13. Identification Rights

Grabyo shall have the right to identify Company as a customer, and to use Company’s logo in Grabyo’s general marketing materials, and Company shall have the right to identify Grabyo as the provider of the Services, and to use Grabyo’s logo in connection with Company’s use of the Services.

14. Notices

All notices under this Agreement must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company, to the contact identified in Company’s most recent Order and, if to Grabyo, to Grabyo Limited, 23 Heddon St, London, W1B 4BQ, United Kingdom, attn: CEO or hello@grabyo.com.

15. General

These Terms of Service including all URLs incorporated herein (i.e., the Acceptable Use Policy located at http://www.grabyo.com/acceptable-use-policy, and the Grabyo Privacy Policy located at http://www.grabyo.com/privacy-policy) constitute the complete and exclusive agreement between Company and Grabyo with respect to its subject matter; provided, however, that if Company accept or enter into a Contract or some other written agreement with Grabyo or its authorised agents (including its resellers) that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of a Contract or these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Notwithstanding anything to the contrary herein, if Company receives the Service through one of Grabyo’s resellers instead of directly from Grabyo, then Grabyo has no direct liability to Company in connection with the Services.

15.1 Independent Contractors

Grabyo and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship;

15.2 Assignment

Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns;

15.3 Governing Law

This Agreement shall be governed by the laws of England and applicable to contracts entered into and wholly to be performed therein;

15.4 Forum Selection

Any and all disputes arising out of or related to this Agreement or performance hereof shall be brought exclusively in the courts located in England and the parties hereby waive any objection thereto;

15.5 Jury Trial Waiver

COMPANY AND GRABYO EACH WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT;

15.6 Limitation on Claims

Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company’s use of the Services must be filed within 1 year after such claim or cause of action arose, or such claim or cause of action shall be forever barred;

15.7 Export Compliance

Each party shall comply with all applicable export control laws and regulations. Company specifically represents that

  • (i) it is not located in any country or jurisdiction that is subject to U.K. economic sanctions, nor is it acting on behalf of the government of, or providing the Services to citizen that is a national of, any such country
  • (ii) it is not identified on the the Asset Freezing Unit of Her Majesty’s (HM) Treasury within the United Kingdom, as amended from time to time, nor is it owned or controlled by any such entity

15.8 Effect of Waivers

The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision

15.9 Survival

All terms of this Agreement which by their nature extend beyond the termination of this Agreement remain in effect until fulfilled and apply to respective successors and assigns;

15.10 Counterparts; Delivery; Acceptance

This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party, or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof;

15.11 Integration; Amendment

This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties;

15.12 No Reliance

No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement;

15.13 Severability

If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision;

15.14 Government Entities

Services licensed to the U.S. government or any entity acting on its behalf shall be as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Services;

15.15 Purchase Orders/Instruments

Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect;

15.16 Foreign Language Translation of Agreement

For Company’s convenience only, Grabyo may provide Company with a non-English translation of this Agreement. Any such non-English language version of this Agreement is for reference purposes. Company acknowledges and agrees that the English language version of this Agreement shall, in all instances, govern the parties’ relationship.

16. Corruption and Anti-Bribery

Grabyo represents and warrants that neither it nor its subsidiaries, shareholders, subcontractors, directors, officers, employees or agents (i) either directly or indirectly have made or will make an offer, payment, promise to pay, or authorized or will authorize the payment or giving of money or anything of value to any Public Official or family member or representative of such Public Official for the purpose of obtaining, directing or retaining business or securing an improper advantage for Company; or (ii) have taken or will take any other action, or permitted or will permit or authorized or will authorize any other action to be taken, including any other action in connection with the conduct of their business and the transactions contemplated under this Agreement, which would cause Grabyo or Company to be in violation of any applicable Anti-Corruption or Anti-Bribery Laws. This includes all local laws in the countries in which business is conducted. As used herein, “Anti-Corruption and Anti-Bribery Laws” mean the UK Bribery Act (the Bribery Act) 2010 as amended, and the anti-corruption and anti-bribery laws and regulations of the local country and any other applicable anti-corruption and anti-bribery laws; and “Public Official” means: (A) any person who is employed full- or part-time by a government, or by regional subdivisions of governments, including states, provinces, districts, counties, cities, towns and villages or by independent agencies, state-owned businesses, state-controlled businesses or public academic institutions; (B) political parties, political party officials and candidates for political office; and (C) employees of public international organizations, such as the African and Asian Development Banks, the European Union, the International Monetary Fund and the United Nations.

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