GLEAN Commercial AGREEMENT
This Glean Commercial Agreement is between Sonocent, LLC, a limited liability company with a business address of 4600 140th Ave North, Suite 180, Clearwater, Florida 33762, USA (the “Supplier”) and the undersigned customer (the “Customer”) (each a "party" and together the “parties”). This Glean Commercial Agreement together with the Accepted Quotation (defined below), background recitals below, and its attachments collectively constitutes the parties’ “Agreement” with respect to the Customer’s use of Glean.
a) The Supplier and its Affiliates have developed a software application referred to as “Glean,” which it makes available via the internet for the purpose of allowing a customer’s End Users to make recordings of inter alia, lectures, seminars and tutorials and to take notes in parallel with recorded content (the “Services”). For clarity, the Supplier also has other software applications that do not come under the terms of this Agreement and that are subject to separate contractual terms.
b) The Customer wishes to use the Services in its education provision operation as a recording and notetaking tool for purposes that may include, but not be limited to, offering a reasonable accommodation to person(s) with a disability within the meaning of, and subject to, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and other laws that may be applicable to the Customer.
c) The Supplier has agreed to provide, and the Customer has agreed to use, and pay for, the Services subject to the terms and conditions of this Agreement.
d) As part of this Agreement, the Supplier will provide “Support” to the Customer in relation to the Services on the basis set out in Schedule 2. In consideration for the mutual promises in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereby agree as follows:
1.1 In addition to terms defined elsewhere in this Agreement, the following terms have the meanings given to them below. Section headings in this Agreement are only for convenience and shall not affect the interpretation of this Agreement.
a) Accepted Quotation: means the Supplier’s quotation regarding use of the Services, which has been signed and accepted in writing by the Customer or deemed accepted by the Customer in using the Services. The Accepted Quotation may be replaced with a new (re-quoted) Accepted Quotation if the Customer serves notice on the Supplier to renew their subscription in accordance with clause 16.1 or make other changes as agreed between the Parties.
b) Affiliate: means, in relation to either party, an entity that directly or indirectly controls, is controlled by, or is under common control with the party. For purposes of this definition, “controls” “controlled by,” and “under common control with” mean (i) the ownership, direct or indirect, of (a) more than fifty percent (>50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or (b) more than fifty percent (>50%) or such other controlling interest (as determined by applicable law) in the equity interests of any other type of legal entity (whether in the form of stock or otherwise), or (ii) status as a general partner in any partnership, or any other arrangement whereby a party controls or has the right to control the board of directors or equivalent governing body of a corporation or other entity.
c) End User: means those users who the Customer has authorized to use and access the Services from time to time.
d) Events: means audio recordings and electronic notes, slides and other media created by an End User and stored in the Services.
e) Glean Admin Portal: means the Glean administration portal available to Customer as part of the Subscription for overseeing and managing End User access to the Services on behalf of the Customer, accessible at admin.glean.co or such successor website as may be notified to Customer.
f) Intellectual Property Rights: means patents, utility models, rights to inventions, copyrights, rights in designs, computer software, database rights, trademarks and service marks, trade names and domain names, trade dress, goodwill and the right to sue for passing off or unfair competition, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
g) Organization Glean Administrator: means, collectively, one or more employees of the Customer assigned to manage the Customer’s Glean Administrator account, who administers access to the Services to the End Users on the Customer’s behalf and provides first line support for any questions or issues from End Users.
h) Normal Business Hours: means the Supplier’s hours during which Support would be available, which extend Monday through Friday 8:00 am ET to 2:00 pm ET, excluding the following holidays: New Year’s Day, Good Friday, Easter Monday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and weekends.
i) Seat: means the right to access the Services granted to Customer for an End User on a per individual basis. Each End User requires a Seat. Customer may not exceed the number of Seats allocated to Customer without the Supplier’s consent.
j) Service Agreement: means the Supplier’s terms upon which an End User may use the Services, which is required to be accepted by individual End Users.
k) Software: means the online software applications provided by the Supplier as part of the Services, including all updates and upgrades.
l) Start Date: means the date from which the Subscription Term starts specified in the Accepted Quotation. The Start Date may be the same as or later than the Effective Date of this Agreement.
m) Subscription: means the term-limited access to the Services purchased by the Customer for the Subscription Term stated in the Accepted Quotation, which entitles End Users to access and use the Services during such term in accordance with this Agreement.
n) Subscription Fees: means the subscription fees payable by the Customer for the Subscription, as set out in Schedule 1 of this Agreement.
o) Virus: means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, other malicious or harmful code and other similar things or materials.
2.1 Subject to the Customer’s complete and timely payment for the Subscription and any other fees due, the Customer’s compliance with the terms and conditions of this Agreement, and End Users’ compliance with the Service Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the End Users to use the Services during the Subscription Term solely for Customer’s education provision purposes. The Supplier shall require End Users to manifest acceptance of the terms of the Service Agreement prior to gaining access to the Services. A copy of the Service Agreement is available upon request, but the Supplier reserves the right to update such agreement from time to time, provided the changes apply across its customer base.
2.2 In relation to the End Users, the Customer covenants and agrees that:
a) Customer shall not permit log-in credentials to access the Services to be used by more than one individual End User at a time or shared among End Users unless they have been reassigned in their entirety to another individual End User, in which case the prior End User shall no longer have any right to access or use the Services;
b) each authorized End User of the Customer will be invited to use the Services on behalf of the Customer by the Organization Glean Administrator, who will send an email enabling the End User to complete their registration for an account to access the Services and create a strong password for his/her use of the Services;
c) it shall assist the Supplier in restricting or suspending an End User’s access to the Services where there has been a misuse of the Services by such End User in the reasonable opinion of the Supplier. In such circumstances the Supplier shall conduct an investigation, with the Customer’s full co-operation, and advise either the End User or the Organization Glean Administrator or both of the remediation steps which need to be taken prior to access to the Services being reestablished for the affected End User;
d) it shall permit the Supplier or the Supplier's designated auditor to audit the Customer’s use of the Services in order to establish the name and password of each End User and to audit Customer’s compliance with this Agreement during the Term and up to 6 months thereafter. Each such audit may be conducted no more than once per calendar quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
e) if any of the audits referred to in Section 2.2(e) reveal that any password has been provided to any individual who is not an End User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
f) if any of the audits referred to in Section 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpaid Subscription Fees plus interest calculated in accordance with Section 6.1 within 10 business days the Supplier’s notice to the Customer of the amount underpaid.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or permit End users to, access, store, distribute or transmit any material during their use of the Services that: a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; b) facilitates illegal activity; c) depicts sexually explicit images; d) promotes violence; e) violates intellectual property, privacy or publicity rights of any person or entity (including Intellectual Property Rights); (f) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or g) is otherwise illegal or causes or has the potential to cause damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other under this Agreement or at law, to disable the Customer's access to or take down any material that violates this Section 2.3.
2.4 The Customer shall not:
a) except as may be allowed by any applicable law, which cannot be waived or varied under this Agreement, and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or (ii) attempt to decompile, reverse compile, disassemble, reverse engineer, unlock source code, object code or underlying algorithms, or otherwise reduce to human-perceivable form all or any part of the Software including its source code; or
b) adapt, translate, or create any derivative works of the Software, or merge the software into any other software; or
c) access all or any part of the Services in order to build a product or service which competes with the Services; or
d) use the Services to provide services to third parties;
e) subject to Section 17, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the End Users, or
f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Section 2; or
g) distribute, re-distribute, or permit transfer of content in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions; or
h) circumvent or attempt to circumvent any security features of the Services; impose an unreasonably large load on the Supplier’s systems delivering the Services; or interfere, disrupt, or attempt to gain unauthorized access to other customer accounts using the Services or any other computer network through which the Services are delivered; or
i) introduce or permit the introduction of any Virus into the Supplier's network and information systems.
2.5 The Customer shall use commercially reasonable efforts to prevent any unauthorized access to, or use of the Services and, in the event of any such unauthorized access or use, promptly notify the Supplier.
2.6 The rights provided under this Section 2 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer, which would need to enter into their own separate agreement with the Supplier similar to this one.
2.7 If the Customer is using the Services on a free trial subscription basis (as set forth in this Section 2.7), the Customer’s use of the Services shall be subject to all of the terms of this Agreement for the applicable free trial term in this Section 2.7 and any subsequent Subscription Term. The following additional terms apply to the Customer if the Customer has chosen to take advantage of any free trial period for Services (the “Trial”). Notwithstanding any provision to the contrary in this Agreement, this Agreement will automatically terminate if notice of termination is given in writing by the Customer to the Supplier prior to the expiration of the Trial, or if there is no Accepted Quotation prior to the expiration of the Trial (each, “Early Termination”). Otherwise, this Agreement will automatically continue in effect according to its terms for the balance of the Subscription Term set forth in the Accepted Quotation (seamlessly, without any gap between the period of the Trial and the Subscription Term as long as there is an Accepted Quotation received by the Supplier from the Customer prior to the expiration of the Trial). Upon any Early Termination, the terms of Section 15 of this Agreement shall apply.
3. ADDITIONAL SEATS
3.1 Subject to Section 3.2 and Section 3.3, the Customer may, from time to time during any Subscription Term, purchase additional Seats in excess of the number set out in the Accepted Quotation and the Supplier shall grant access to the Services to such additional End Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional Seats, the Customer shall notify the Supplier in writing to email@example.com. The Supplier shall evaluate such request for additional Seats (together with the requested date for the increase to take effect) and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall require not fewer than 5 business days to activate the additional Seats.
3.3 If the Supplier approves the Customer's request to purchase additional Seats, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional Seats as set out in Schedule 1 and, if such additional Seats are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be prorated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4. GLEAN ADMIN. The Glean Admin Portal is available to the Customer with an active Subscription. The Customer shall use Glean Admin Portal to ensure that the number of Seats used by the Customer’s End Users does not at any time exceed the number of Seats purchased. The Customer shall be responsible for ensuring access to the Glean Admin Portal is restricted to relevant, authorized, current personnel of the Customer. The Customer’s Organization Glean Administrator's primary use of the Services must be to administer access to End Users. The Supplier reserves the right to suspend or terminate the Customer’s access to the Services if it identifies misuse of the Customer’s Organization Glean Administrator role. The Supplier will contact the Customer directly using the email address provided or confirmed by Customer if the Customer is in violation of this Section 3. The Customer is responsible for any misuse of the Services or breach of this Agreement by any End User. The Customer’s Organization Glean Administrator shall not count as a “Seat” for purposes of Customer’s purchased Seat allotment.
5.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement. The Supplier has and will retain sole control over the operation, provision, maintenance and management of the Services, including: a) its systems; b) location(s) where any of the Services are performed; c) selection, deployment, modification and replacement of the Software; and d) performance of Services maintenance, upgrades, corrections and repairs.
5.2 The Supplier shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for: a) planned maintenance of the Services performed outside Normal Business Hours timed to limit disruption to End Users; b) Services degradation or downtime due to a force majeure event, or any other circumstances beyond the Supplier’s reasonable control, including issues arising from the Customer’s systems or network, use of the Services other than as permitted under the terms of this Agreement; and c) unscheduled or emergency maintenance.
5.3 The Supplier reserves the right, in its sole discretion and without prior notice, to make any changes to the Services that it deems necessary or useful to: a) maintain or enhance (i) the quality or delivery of services across its customers, (ii) security and privacy measures of the Services or the Supplier’s systems, (iii) the competitive strength of or market for the Supplier’s services; or (iv) the cost efficiency or performance of such services; or b) to comply with applicable laws.
5.4 The Supplier may suspend access to the Services, in whole or in part (on an individual End User basis), if the Customer fails to comply or cause its End Users to comply with the terms of this Agreement or if End Users fail to comply with the terms of the Service Agreement.
6. SUPPORT. The Supplier will provide Support to the Customer in relation to the Services solely on the basis set out in Schedule 2.
7. SUBSCRIPTION FEES
7.1 The Customer shall pay to the Supplier the Subscription Fee in accordance with this Section 6. The Subscription Fee is payable in full in advance for the Subscription Term (excluding any Trial). The Supplier will invoice the Customer for the Subscription Fee upon receipt of an Accepted Quotation from the Customer and the invoice will set out the details of the agreed Subscription Term. Any invoices raised by the Supplier shall be payable by the Customer within 30 days of the date of the invoice into an account designated by the Supplier. All sums payable under this Agreement are exclusive of value added tax (VAT) or any relevant local sales taxes, for which the Customer shall be responsible. If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier's remedies under this Agreement, the Customer shall pay interest on the overdue amount at the rate of 1.5% per annum or the maximum rate allowed by applicable law, whichever is less. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.2 All amounts and fees stated or referred to in this Agreement: a) shall be payable in United States Dollars; b) are, subject to Section 10.1, non-cancellable and non-refundable; and c) are exclusive of any applicable sales taxes, which shall be added to the Supplier's invoice(s) at the appropriate rate. The Customer may present an exemption certificate with respect to sales tax exemption in the United States if it is a non-profit organization, in which case sales taxes may not be added to the Customer’s invoice.
8. CONFIDENTIALITY AND PUBLICITY
8.1 The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. “Confidential Information” means all written or oral information, disclosed by either party to the other, related to the operations, technology, business or personnel of either party that has been identified as confidential or that by its nature would be regarded as proprietary or confidential by a reasonable person in either of the party’s industries. For purposes of this Agreement, the terms of this Agreement, the Services, Software and Aggregated Data will be deemed Confidential Information of the Supplier, and the Customer Data will be deemed Confidential Information of the Customer. The Customer waives any proprietary or confidentiality interest in any feedback provided by the Customer to the Supplier regarding Services under this Agreement, which feedback may be used by the Supplier in any manner it sees fit and shall be considered to be Confidential Information of the Supplier and not Customer.
8.2 Each party agrees as follows during the term of this Agreement: a) to use Confidential Information of the disclosing party only for the performance of this Agreement or the exercise of rights hereunder; b) that such party will not reproduce Confidential Information disclosed by the other party except as expressly authorized under this Agreement, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any unauthorized third party; c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; and d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, or End Users, if any, who have a need to have access.
8.3 Section 8.2 will not apply to Confidential Information of the disclosing party that a) is publicly available or in the public domain at the time disclosed; b) is or becomes publicly available or enters the public domain through no fault of the recipient; c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; e) is independently developed by the recipient as evidenced by written records; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party may disclose Confidential Information of the other party to the limited extent required (i) in order to comply with the order of a court or other governmental body, or (ii) as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall (if legally permissible) first have given written notice to the other party and cooperate with legally permissible efforts of the other party to obtain a protective order.
8.4 No party shall make, or permit any person to make, any public announcement or press release concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, by any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction; provided, however, that the Supplier may, without the Customer’s consent, include the Customer’s name and/or other indicia in its lists of the Supplier’s current or former customers in promotional and marketing materials.
9. DATA TERMS, INCLUDING CCPA TERMS AND FERPA TERMS
9.2 Subject to the terms and conditions of this Agreement, the Customer hereby grants the Supplier a limited nonexclusive, non-transferable, non-sublicensable, worldwide, license to use, copy and display data, including data from End Users’ Events, transmitted, uploaded and/or generated to or through the Services by or on behalf of the Customer (collectively, “Customer Data”) solely as needed to provide the Services and strictly in accordance with the terms of this Agreement. Supplier may generate, use and disclose on an aggregated, anonymized basis statistical data derived from End User use of the Services or derived from Customer Data, provided that such data shall not identify the Customer or any End Users (“Aggregated Data”), which shall not be considered Customer Data. Both parties will comply with all applicable laws, rules, and regulations in the performance of its obligations under this Agreement, including, without limitation, the California Consumer Privacy Act of 2018 and regulations thereunder (collectively, the “CCPA”). The Supplier shall take reasonable actions necessary to enable the Customer to comply with its obligations under the CCPA, as applicable. For purposes of the same, the Supplier is expressly prohibited from retaining, using, or disclosing personal information of End Users for any purpose other than to provide the Services in accordance with this Agreement, and shall not retain, use, or disclose personal information for a commercial purpose other than to provide the Services. The Supplier shall not collect, sell, or use personal information except as necessary to perform the Services. The parties expressly acknowledge and agree that the Customer is not providing any personal information to the Supplier for monetary or any other valuable consideration. For purposes of this Section 8.2, “personal information”, “consumer”, “commercial purpose” and** “sell”** shall have the meaning as defined in CCPA except that “personal information” shall be limited to the personal information the Supplier collects for or receives from or creates, receives, transmits or maintains on behalf of the Customer. The Supplier certifies that it understands the restrictions contained in this Section 8.2.
9.3 As between the parties, to the extent that the Customer is an institution required to comply with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g) (“FERPA”) and its accompanying regulations, (a) the Customer shall obtain consent to disclose education records and/or any personally identifiable information (PII) contained within any education records, each as defined under FERPA, to the Supplier for purposes of allowing the Supplier to provide the Services in accordance with the terms of this Agreement, or alternatively, (b) the Customer may designate the Supplier as a “School Official” within the meaning of FERPA with legitimate educational interests to help support student End Users accessing the note taking accommodation available by way of the Services, for which the Customer would otherwise have to employ its own employees to provide the same service as the Services. Pursuant to 34 CFR 99.31(a)(1), if the latter designation of “School Official” applies, the Supplier hereby agrees that: (i) the Supplier shall only use the foregoing education records and PII to provide the Services under the terms of this Agreement, and that for purposes of FERPA, this Agreement establishes that the Supplier is under the control of the Customer with respect to use and maintenance of the educational records; and (ii) the Supplier shall not redisclose any personally identifiable information from education records of student End Users without the prior written permission or direction of the Customer or as required by applicable law. The parties agree that education records and PII of student End Users, as defined by FERPA, are within the larger category or “personal information” under this Section 8 and within Customer Data.
9.4 The Supplier shall follow its information security procedures in relation to all personal information as set out in its Customer Data Security Policy available at legal.sonocent.com/data-security-policy.
9.5 The Supplier shall assist, at the Customer’s expense, with the Customer’s response to requests from End Users whose personal information the Supplier has in its possession or control during the term of this Agreement, as may reasonably be requested by the Customer from time to time. The parties acknowledge that access to the Services by individual End Users may be for a period shorter than the Subscription Term.
(a) When an individual End User’s access terminates for any reason prior to the end of the Subscription Term, the Customer may either:
(i) notify the Supplier in writing and the Supplier shall return all Customer Data relating to such End User within twelve (12) months if so notified, unless within such twelve (12)-month period the Customer also gives the Supplier written notice that such End User intends to enter into a separate agreement with the Supplier to continue to use the Services on their own (in which case, the Supplier may retain the Customer Data relating to such End User in order to give effect to the request) or unless the Supplier is required by applicable law to retain such records, or
(ii) notify the Supplier in writing and the Supplier shall permanently delete all Customer Data relating to such End User within eighteen (18) months following such termination, unless within twelve (12) months following such termination the Customer also gives the Supplier written notice that such End User intends to enter into a separate agreement with the Supplier to continue to use the Services on their own (in which case, the Supplier may retain the Customer Data relating to such End User in order to give effect to the request) or unless the Supplier is required by applicable law to retain such records.
(b) At the end of the Subscription Term, the Supplier (as mutually agreed with Customer) shall either:
(i) return all Customer Data within twelve (12) months following such termination; unless within such twelve (12)-month period the Customer also gives the Supplier written notice that specific End Users intend to enter into a separate agreement with the Supplier to continue to use the Services on their own (in which case, the Supplier may retain the Customer Data relating to such End Users in order to give effect to their requests) or unless the Supplier is required by applicable law to retain such records, or
(ii) permanently delete all Customer Data within eighteen (18) months following the end of the Subscription Term, unless within twelve (12) months following such termination the Customer also gives the Supplier written notice that such End User intends to enter into a separate agreement with the Supplier to continue to use the Services on their own (in which case, the Supplier may retain the Customer Data relating to such End User in order to give effect to the request) or unless the Supplier is required by applicable law to retain such records.
10. LIMITED WARRANTY; WARRANTY DISCLAIMER
10.1 The Supplier warrants, beginning on the Start Date, during the Subscription Term that the Services will substantially meet any published functional specifications of the Supplier for the Software. Should the Services fail to substantially meet such specifications, or be otherwise defective, the Supplier will use commercially reasonable efforts to correct material errors or nonconformities within a reasonable period of time as part of Support provided by the Supplier, except to the extent the error or nonconformity results from use of the Services other than as permitted under this Agreement, or modification or alteration of the Software by anyone other than the Supplier or use of the Services in combination with any other software or equipment not provided by the Supplier. If correction is not possible, the Supplier may replace the defective Software, in whole or in part, with replacement software with substantially the same functionality or if that is not possible, terminate the Customer’s access to the Services and refund the Subscription Fee paid by the Customer. This remedy comprises the Customer’s sole and exclusive remedy for a breach of the limited warranty in this Section 10.1.
10.2 The Supplier does not warrant that: a) the Customer's use of the Services will be uninterrupted or error-free; b) that defects, bugs or errors can or will be corrected; or c) that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.3 THE SUPPLIER HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE OR TRADE USAGE.
11. CUSTOMER’S OBLIGATIONS
The Customer shall:
a) provide the Supplier with: (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to information as may be required by the Supplier; in order to provide the Services, including but not limited to any data input by the Customer held in the Services, security access information and configuration services;
b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable as reasonably necessary;
d) ensure that the End Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any End User's breach of this Agreement;
e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform the Supplier’s obligations under this Agreement, including without limitation the Services;
f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time at https://glean.co/specification/;
g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's Services online portal used to access the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
h) require that the End Users comply with the terms of the Service Agreement at all times.
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services or Customer Data processed through the Services, provided that: a) the Customer is given prompt notice of any such claim; b) the Supplier provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and c) the Customer is given sole authority to defend or settle the claim.
12.2 In the event that a third party (not including an Affiliate of the Customer) alleges that the Software infringes or misappropriates the Intellectual Property Rights of such party, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 business days' written notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.3 Section 12.2 states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents’, and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Rights.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement is based on: a) a modification of the Services or Software by anyone other than the Supplier; b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier or the terms of this Agreement or the Service Agreement; c) the Customer Data processed through the Services; or d) the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13. LIMITS OF LIABILITY
13.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this Section 13.
13.2 Subject to Section 13.5, each party’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed an amount equal to the Subscription Fee paid in the 12 months preceding a claim.
13.3 Subject to Section 13.5, neither party shall be liable for consequential, indirect, punitive or special losses or damages.
13.4 Subject to Section 13.5, neither party shall be liable for any of the following losses or damages (whether direct or indirect): a) loss of profit; b) loss or corruption of data; c) loss or corruption of software or systems; d) loss or damage to equipment; e) loss of use; f) loss of production; g) loss of contract; h) loss of opportunity; i) loss of savings, discount or rebate (whether actual or anticipated); and/or j) harm to reputation or loss of goodwill.
13.5 Notwithstanding any other provision of this Agreement, neither party’s liability shall be limited in any way in respect of the following: a) death or personal injury caused by negligence; b) fraud or fraudulent misrepresentation; or c) any other losses which cannot be excluded or limited by applicable law.
13.6 Except as expressly and specifically provided in this Agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
c) the Services are provided to the Customer on an "as is" basis.
14. INTELLECTUAL PROPERTY RIGHTS. The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and Software, including in all improvements and modifications thereto. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services.
15. INSURANCE The Supplier maintains at its own cost and with a reputable insurance company the insurances it is required to maintain to provide the Services. Full particulars of that insurance and copies of the relevant certificates are available on request.
16. TERM AND TERMINATION
16.1 This Agreement shall, unless otherwise terminated early as provided in Section 2.7 or Section 16.5, commence on the Effective Date and shall automatically terminate at the end of the Initial Subscription Term, unless the Customer notifies the Supplier that it wishes to renew for a further term, in writing, at least 90 days before the end of the Initial Subscription Term.
16.2 If the Customer provides such written notice of its intention to renew in accordance with clause 16.1 above, this Agreement shall be renewed for a further term (“Renewal Period”).
16.3 The Renewal Period shall, unless otherwise terminated early as provided in Section 2.7 or Section 16.5, automatically terminate at the end of that Renewal Period, unless the Customer notifies the Supplier that it wishes to renew for a further term, in writing, at least 90 days before the end of that Renewal Period.
16.4 The “Initial Subscription Term,” which is set out in the Accepted Quotation, together with any subsequent Renewal Periods shall constitute the “Subscription Term”. The period from the Effective Date through the end of the Subscription Term shall constitute the “term” of this Agreement. The “Initial Subscription Term” shall be deemed to include the period of any Trial under Section 2.7 for purposes of calculating the length of the overall “term” of this Agreement.
16.5 Without affecting any other right or remedy available to it, either party may terminate this Agreement (and by extension the Subscription Term) with immediate effect by giving written notice to the other party if:
a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default after being notified in writing to make such payment;
b) the other party commits a material breach of any other term of this Agreement, which breach is irremediable, or (if such breach is remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; or
c) the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law that is not dismissed within 90 days; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.6 Termination or expiration of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiration, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiration.
16.7 On termination for any reason: a) all rights granted to the Customer under this Agreement shall cease; b) the Customer and its End Users shall immediately stop using the Services; and c) the Customer shall immediately pay to the Supplier, upon the Supplier’s demand, any sums due to the Supplier under this Agreement. The Supplier has no obligation to retain Customer Data after any expiration or termination of this Agreement; provided that the Supplier may do so to the extent required by applicable law.
16.8 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including all defined terms, this Section 16.8 and Sections 1, 2.4, 6, 7, 8.5, 9.2, 9.3, 11, 12, 13, and 17 through 30, shall remain in full force and effect.
17. WAIVER. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. REMEDIES. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19. ASSIGNMENT. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Supplier may at any time assign, transfer, delegate, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20. ENTIRE AGREEMENT. This Agreement, together with the Schedules attached hereto and the Accepted Quotation, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Each party acknowledges that, in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.
21. AMENDMENT. No amendment of this Agreement shall be effective unless it is in writing and signed by the authorized representatives of the parties.
22. SEVERABILITY. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall not affect the validity and enforceability of the rest of this Agreement and the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Signature pages exchanged electronically or as PDF copies transmitted over email shall be considered originals for purposes of this Agreement.
24. THIRD-PARTY RIGHTS. There are no third-party beneficiaries to this Agreement except that the Supplier’s Affiliates may enforce the Supplier’s rights under this Agreement.
25. NO PARTNERSHIP OR AGENCY. The Supplier is acting as an independent contractor to the Customer. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26. FORCE MAJEURE. Except for the Customer’s payment obligations, neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
27. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing. Notices sent in accordance with this Section 27 will be deemed effectively given: a) when received, if delivered by hand, with signed confirmation of receipt; b) when received, if sent by reputable international courier, signature required; c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s Normal Business Hours, and on the next business day, if sent after the addressee’s Normal Business Hours; and d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
28. GOVERNING LAW AND DISPUTE RESOLUTION. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, USA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. THE PARTIES SHALL ATTEMPT IN GOOD FAITH TO RESOLVE PROMPTLY BY NEGOTIATION BETWEEN EXECUTIVES ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF SUCH NEGOTIATIONS ARE UNSUCCESSFUL, SUCH DISPUTE SHALL BE SETTLED BY ARBITRATION BY A SOLE ARBITRATOR EXPERIENCED IN INTELLECTUAL PROPERTY AND SOFTWARE DISPUTES AND IN ACCORDANCE WITH THE THEN CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA), AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND BINDING AND MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF. THE PLACE OF ARBITRATION SHALL BE NEW YORK, NEW YORK. THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO AWARD DAMAGES IN EXCESS OF COMPENSATORY DAMAGES OR TO AWARD DAMAGES WAIVED UNDER ANY LIMITATION OF LIABILITIES PROVISION HEREIN, AND EACH PARTY EXPRESSLY WAIVES AND FOREGOES ANY RIGHT TO PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES. Notwithstanding the foregoing, the Supplier may seek redress in the state and federal courts of the State of New York, including injunctive relief, in the event of any breach or threatened breach of the Intellectual Property Rights and Confidential Information protections of this Agreement by the Customer, and the Customer hereby waives any claim of an inconvenient forum in such courts for such purposes.
29. INTERPRETATION. Unless the context otherwise requires: a) words in the singular shall include the plural and in the plural shall include the singular; b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; c) a reference to one gender shall include a reference to the other genders; and d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns. References to Sections are to Sections in the body of this Agreement unless otherwise indicated. The Schedules, any addendum to this Agreement (if any) and the Accepted Quotation are part of this Agreement, hereby incorporated by this reference.
30. CONFLICTS. In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the Schedules, the provision in the body of this Agreement shall take precedence, except as set forth in an addendum to this Agreement.
Schedule 1 Subscription Fees
The Subscription Fee for the Initial Subscription Term shall be set out in the Accepted Quotation.
The Subscription Fee shall be subject to an annual review by the Supplier prior to entering into any Renewal Periods.
Schedule 2 Support
The Supplier will, as part of the Services, make available to the Customer its standard in-product support services, which comprise a self-serve help center available under “help” on the Website (or presently available at help.glean.co). The Customer may also email firstname.lastname@example.org. Issues reported caused by factors that would preclude the warranty (or are outside of the warranty coverage) under the terms of Section 10 of the Agreement may be supported (or not) at the Supplier’s discretion and subject to payment of the Supplier’s then-current rates for non-standard support services.
The Customer has been allocated a Glean account manager, who is contactable during Normal Business Hours. All support services requests on behalf of Customer should be directed by the Customer’s Organization Glean Administrator to such account manager; individual End Users are not permitted to contact the Glean account manager directly.
Version 6, published November 2021.
If you have any questions about these terms please email email@example.com. Please include your quotation number on the email.