Terms of Service – Rest of World (excluding U.S.)
Last updated: May 23rd, 2019 (previous version)
Master Service Agreement
This Master Service Agreement (the "MSA" or "Terms of Service") is by and between Grabyo Limited, a company incorporated in England & Wales under number 8606400 whose registered office is at 19 Heddon Street, London, W1B 4BG, United Kingdom ("Grabyo") and the entity or individual ("Customer") identified in the order executed by Grabyo and Customer or identified in connection with the Grabyo Account registration process (in each case, a "Platform Services Agreement" or "Order"), and governs Customer'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. Use of the Service by Users is governed by this MSA, unless explicitly stated otherwise, and any new Services, including any new Grabyo properties, shall be subject to these Terms of Service. When a User uses the Services or any other service or product offered by Grabyo that does not have a separate legal agreement, these Terms of Service will apply.
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.
1.1 The Services
The "Services" means those online services that Customer has licensed from Grabyo, including Grabyo Studio, Grabyo Producer, Grabyo Mobile, Grabyo Player and/or such other services as Grabyo makes available to Customer from time to time. The various services comprising the Services enable Customer to upload, transcode, manage and distribute Customer'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 Customer's Account(s) by Customer or on Customer's behalf. The Services do not include Customer'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, Customer may make choices about its Content, including, depending on the particular Services being used by Customer, the presentation, management and distribution of Content. Customer may change its selections as permitted by the Services. In all cases, however, Customer's most recent selections in the U/I, as reflected in Grabyo's database, shall be conclusive in the event of any dispute concerning Customer's selections.
1.3 "Account" means a single point of entry via the U/I through which Customer, a Customer'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 Customer by Grabyo or its resellers that permits the Customer, 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.
1.8 "Administrator(s)" means any Authorized User that is designated by Customer to manage other Authorized Users' access to the Services.
1.9 "Authorized Users" means any individual who is authorized by Customer to access and use the Services on behalf of Customer.
1.10 "Usage Data" means all information, data and other content, not including any Content, accessed by Grabyo via Customer's access and use of the Services, including without limitation Customer and User's IP address, web request headers, including without limitation browser type, user agent, and referral page, web pages visited on the Services, cookie information from Users' usage of the Services, and other information relating to Customer and Users' usage of the Services.
1.11 "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including but not limited to viruses, worms, time bombs and Trojan horses.
2. Access to the Services; Free Accounts; Beta Services
2.1 Access to the Services
Access to Customer's Services Account(s) for Users shall be enabled by use of username(s) and password(s) ("Credentials") selected by Customer. Except where Grabyo has actual notice of loss, theft or unauthorized use of Customer's Credentials,
(i) Customer is solely responsible for designating all Authorized Users and Administrators and for providing accurate contact information to Grabyo for such Authorized Users and Administrators. Customer is responsible for (a) ensuring that all Authorized Users comply with the terms of this Agreement, and (b) any breach of this Agreement by any Authorized User.
(ii) Each Authorized User may access and use the Services only after completing the applicable registration process via the Service. Each Authorized User will maintain the confidentiality of his or her Credentials and will not disclose such Credentials to any other party or share their Account with any other individual. Any activities undertaken through the use of the Credentials will be deemed to have been performed by an Authorized User. Customer is responsible for all activity occurring in Customer's Account(s), and Customer 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.
(iii) Grabyo shall have the right, without further inquiry, to rely on the provision of Customer's Credentials as sufficient to authenticate Customer's use of the Services
(iv) An additional level of access security for the Customer's Account(s) is provided by Grabyo using multi-factor authentication ("MFA") and Customer Administrators are responsible for the set-up, configuration and management of MFA for all users and Customer Account(s). While Grabyo recommends the utilization of MFA by all of its clients, including Customer, Customer acknowledges that no security or authentication system is impenetrable or unable to be hacked.
(v) Customer will immediately notify Grabyo of any unauthorized access or use of Credentials that is known to, or reasonably suspected by, Customer. Grabyo reserves the right, at any time, to require that any Authorized User change his or her Credentials.
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. Customer 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 Customer, 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.
Customer is solely responsible for providing and maintaining at its own expense all equipment, software, services and other items necessary to access and use the Services (including, without limitation, computer hardware and software, modems, telephone service and Internet access). Grabyo shall have no responsibility or liability) for failure for the suitability, quality, reliability or performance of Customer equipment.
Grabyo reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice.
2.7 Third Party Services
The Services may provide Customer with the ability to access technology and services made available by third parties ("Third Party Services") as a convenience only. Customer's use of any Third Party Services is solely at its own risk and is subject to any applicable terms and conditions of the third party provider of such services. Customer acknowledges and agrees that Third Party Services are not under the control of Grabyo. Grabyo makes no representation or warranty with regard to, and will not be responsible or liable to Customer for, any Third Party Services. Grabyo does not, unless otherwise expressly set forth in writing in a separate agreement executed by Grabyo, provide maintenance or support for any Third Party Services.
Where Grabyo provides training or support to the Customer the fees for such services will be defined in the Order. Customer shall be responsible for its own expenses in attending training and for Grabyo's travel and subsistence expenses if the parties agree that the training be conducted at Customer premises.
3. Customer's Obligations
3.1 Restrictions on Use
a) Customer 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;
(iii) use any Service in any manner not expressly permitted by this Agreement;
(iv) sell, lease, or rent access to or use of the Services, or otherwise transfer any rights to use the Services under this Agreement (including without limitation, on a timeshare or service bureau basis);
(v) host, on a subscription basis or otherwise, the Services (including any related application);
(vi) permit or assist others to enable access to the Services by any unauthorized third party other than in connection with any third party's access to Content made publicly available via the Services by Customer;
(vii) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit;
(viii) defraud, defame, abuse, harass, stalk, threaten, or infringe the rights of privacy or other intellectual property rights (including copyright) of others;
(ix) use the Services to store or transmit Malicious Code;
(x) attempt to gain unauthorised access to any Services or Content or its related systems or networks;
b) No Modifications: Except as expressly permitted in writing by Grabyo, Customer will not copy, distribute, modify, create derivative works based on, port, adapt, or translate any Grabyo software or Services. Customer will not reverse engineer the Services or any Grabyo software and will not decompile, disassemble, or otherwise attempt to discover the source code of any software provided or otherwise made available by Grabyo only in machine-readable (i.e., object code) format.
c) Content: Customer 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.
d) 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.
f) Customer 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.
g) Customer 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 Customer 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
Customer acknowledges and agrees 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 Customer'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
Customer shall pay Grabyo the fees set forth in each Order in accordance with the payment terms set forth in this Agreement and the Order. Customer shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Customer'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. In addition, if the payment for applicable fees is more than 15 days overdue then Customer shall be liable for a 10% late payment fee. If Customer 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 Customer, provided that Grabyo has supplied Customer prior notice and 5 days' opportunity to cure. If Grabyo pursues collection efforts against Customer due to Customer's failure to pay fees due under this Agreement, Customer 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 Customer in accordance with any active Order and this Agreement
(b) perform any other obligations expressly identified in any current Order.
5.1 Term of this Agreement
This Agreement commences on the Effective Date and shall remain in effect until all of Customer'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 Customer's initial Order, or the start date of a trial or, if such Order was submitted online, the date Customer submits the online Order. If Customer 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 Customer 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 Customer'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 Customer 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 unless otherwise specified in the Order.
Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders, if:
(a) 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 Customer 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.
5.4 Removal and Suspension
Grabyo reserves the right, without notice or liability to Customer, to remove any Content from the Services and/or suspend Customer's access to or use of the Services in its sole discretion if it believes that (a) Customer has violated its obligations under this Agreement, (b) that such removal is required by applicable law, (c) that Customer use of the Services represents a direct or indirect threat to the network function or integrity of the Services, (d) such suspension is necessary to prevent unauthorized access to or harm to Content or data of other Grabyo customers; (e) such suspension is necessary to comply with Grabyo's legal obligations, or (f) Customer's account has become inactive. Grabyo further reserves the right to remove any Content from the Services and/or render Content inaccessible to the public upon request from a third party asserting ownership of rights in such content. Customer is solely responsible for creating backup copies of any Content.
As between the parties, Grabyo owns all right, title and interest in and to the Services. This Agreement does not convey to Customer 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, Customer 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.
7.1 License to Use the Services
Grabyo hereby grants Customer 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 Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by Grabyo. Except as expressly permitted by Grabyo in writing, Customer 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
Customer 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 Customer's selections made through the U/I. All rights not expressly granted to Grabyo are reserved by Customer.
7.3 License to Feedback, Suggestions or Recommendations
Customer 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 Customer regarding the Services.
8. Disclaimers, Representations and Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GRABYO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, 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 CUSTOMER FROM GRABYO SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.2 Representations and Warranties
Customer 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 Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party's rights. Customer 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) Customer shall comply with all applicable laws, rules, regulations, and court or regulatory agency orders or actions;
(d) Customer shall be solely responsible and liable for any Prohibited Content (as defined in the AUP); and
(e) Customer shall abide by these Terms of Service.
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 CUSTOMER 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 CUSTOMER (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 CUSTOMER IS USING THE SERVICES VIA A FREE ACCOUNT, CUSTOMER'S MAXIMUM LIABILITY TO GRABYO IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY GRABYO. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS.
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. Customer'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 Customer 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 Customer 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.
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 Customer 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 Customer is a customer of Grabyo.
13. Identification Rights
Grabyo shall have the right to identify Customer as a customer, and to use Customer's logo in Grabyo's general marketing materials, and Customer shall have the right to identify Grabyo as the provider of the Services, and to use Grabyo's logo in connection with Customer's use of the Services.
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 Customer, to the contact identified in Customer's most recent Order and, if to Grabyo, to Grabyo Limited, 19 Heddon St, London, W1B 4BG, United Kingdom, attn: CEO or firstname.lastname@example.org.
15.1 Independent Contractors
Grabyo and Customer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship;
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
CUSTOMER 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 Customer'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. Customer specifically represents that
(i) it is not located in any country or jurisdiction that is subject to United Kingdom or United States 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 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;
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 Customer'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;
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 Customer's convenience only, Grabyo may provide Customer with a non-English translation of this Agreement. Any such non-English language version of this Agreement is for reference purposes. Customer acknowledges and agrees that the English language version of this Agreement shall, in all instances, govern the parties' relationship;
15.17 Force Majeure
Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, acts of terrorism, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
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 Customer; 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 Customer 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 applicable. 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.
17. Data Protection
This Clause applies only to the personal data of individuals in the EU.
17.1 In this Clause, the following terms shall have the following meanings:
"controller", "processor", "data subject", "personal data", "processing" (and "process") and "special categories of personal data" shall have the meanings given in Applicable Data Protection Law
"Applicable Data Protection Law" shall mean: (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); and (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679)
17.2 Customer (the controller) appoints Grabyo as a processor to process the personal data of individuals in the EU described in these Terms and Conditions (the "Data") for the purposes described, and the terms set out, in these Terms and Conditions, including, for the avoidance of doubt, to provide Customer with, and update and improve, our Services (or as otherwise agreed in writing by the parties) (the "Permitted Purpose"). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law;
17.3 Unless explicitly requested by Grabyo to do so, Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to Grabyo for processing;
17.4 Grabyo shall not transfer the Data outside of the European Economic Area ("EEA") unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient in the United States that has certified its compliance with the EU-US Privacy Shield, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission;
17.5 Grabyo shall ensure that any person it authorises to process the Data (an "Authorised Person") shall protect the Data in accordance with Grabyo's confidentiality obligations under this Agreement;
17.6 Grabyo shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incident");
17.7 Customer consents to Grabyo engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) Grabyo maintains an up-to-date list of its subprocessors, which shall be available on its website on or before 25 May 2018, which it shall update with details of any change in subprocessors at least 30 days prior to the change; (ii) Grabyo imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) Grabyo remains liable for any breach of this Clause that is caused by an act, error or omission of its subprocessor. The Customer may object to Grabyo's appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Grabyo will either not appoint or replace the subprocessor or, if this is not reasonably possible in Grabyo's sole discretion, the Customer may suspend or terminate the Agreement;
17.8 Grabyo shall provide reasonable and timely assistance to Customer (at Customer's expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Grabyo, Grabyo shall promptly inform the Customer providing full details of the same;
17.9 If Grabyo believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform Customer and provide reasonable cooperation to the Customer in connection with any data protection impact assessment that may be required under Applicable Data Protection Law;
17.10 If it becomes aware of a confirmed Security Incident, Grabyo shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Grabyo shall further take reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and keep Customer informed of all material developments in connection with the Security Incident.
17.11 Deletion or return of Data: Upon termination or expiry of this Agreement, Grabyo will, on Customer's explicit request, delete or return the Data in its possession or control (in a manner and form decided by Grabyo, acting reasonably). This requirement shall not apply to the extent that Grabyo is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, which Data Grabyo shall securely isolate and protect from any further processing.
17.12 Grabyo shall on reasonable prior notice and at the Customer's expense and subject to the confidentiality obligations set out in the Agreement, either (at Grabyo's determination) provide an independent third party audit report to recognised standards or submit to audits and inspections and provide information reasonably required in order to assess and verify compliance with the provisions of this Clause and the requirements of the Applicable Data Protection Law.