Terms Of Use

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TERMS OF USE

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. 

AGREEMENT: BY USING THE SOFTWARE AND CLICKING ‘AGREE’ YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR ANOTHER ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. IF YOU HAVE A WRITTEN LICENSE AGREEMENT WITH GLOBAIN, THEN THAT AGREEMENT EXCLUSIVELY GOVERNS THE LICENSE TO THE SOFTWARE.

This agreement is between Globain, LLC a Pennsylvania limited liability company (Globain) and the customer entering into this agreement (Customer). The Globain software, modifications, enhancements and documentation provided to Customer (Software) are licensed and are not sold. 

  1. SCOPE. This agreement describes the licensing of the Software and support services provided to Customer under an order.
  2. LICENSE. Subject to the other terms of this agreement, Globain grants Customer, under an order, a term based, non-exclusive, non-transferable license up to the license capacity purchased to use the Software only in Customer’s internal business operations.
  3. RESTRICTIONS. Customer may not:
    1. Transfer, assign, sublicense, rent, create derivative works of the Software, or use it in any type of service provider environment for third parties;
    2. Reverse engineer, decompile, disassemble, or translate the Software; or
    3. Evaluate the Software for the purpose of competing with Globain or operate the Software other than in accordance with its technical documentation.
  4. PAYMENT.  Customer will pay all fees due within 30 days of an invoice, unless otherwise provided on an order, plus applicable sales, use and other similar taxes.  
  5. SOFTWARE PERFORMANCE WARRANTY. For new license purchases (not any renewals), Globain warrants that the Software will perform in substantial accordance with its technical documentation for a period of 90 days from the date of the order.  This warranty will not apply to any problems caused by software not licensed to Customer by Globain, use other than in accordance with the technical documentation, or misuse of the Software.  The warranty only covers problems reported to Globain during the warranty period or 15 days after.  Customer will cooperate with Globain in resolving any warranty claim. GLOBAIN WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY COVERED WARRANTY CLAIMS WITHIN A REASONABLE PERIOD OF TIME OR REPLACE THE SOFTWARE, OR IF GLOBAIN CANNOT DO SO IT WILL REFUND TO CUSTOMER THE LICENSE FEE PAID. THIS REMEDY IS CUSTOMER’S EXCLUSIVE REMEDY AND GLOBAIN’S SOLE LIABILITY FOR THESE WARRANTY CLAIMS.
  6. DISCLAIMER OF WARRANTIES. GLOBAIN DISLCAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER UNDERSTANDS THAT THE SOFTWARE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
  7. MUTUAL CONFIDENTIALITY.​
    1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Globain’s Confidential Information includes without limitation the Software (including without limitation the Software’s user interface design and layout, and pricing information).
    2. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
    3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.  The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. ​
  8. PROPRIETARY RIGHTS. The Software, workflow processes, user interface, designs, technical documentation, and other technologies provided by Globain as part of the Software are the proprietary property of Globain and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Globain and its licensors. The Software is protected by applicable copyright and other intellectual property laws.  Customer may not remove any product identification, copyright, trademark or other notice from the Software. Globain reserves all rights not expressly granted.
  9. TERMINATION.  This agreement expires at the end of the license period specified in the accompanying order.  In addition, either party may terminate this agreement upon a material breach of the other party after a 30-day notice/cure period, if the breach is not cured during such time period. Upon termination of this agreement or a license, Customer must discontinue using the Software, de-install and destroy or return the Software and all copies, within 5 days.  Upon Globain's request, Customer will provide written certification of such compliance.
  10. ANNUAL SUPPORT. Globain’s annual technical support and maintenance services (Support) are included with license purchases. Support is provided under the Support policies then in effect. Globain may change its Support terms, but Support will not materially degrade during any Support term. More details on Support are located at http://www.assessforce.com/support
  11. LIMIT ON LIABILITY.  ​
    1. EXCLUSION OF INDIRECT DAMAGES. Globain is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss or if the damage or loss is foreseeable.
    2. TOTAL LIMIT ON LIABILITY. Globain’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid or payable by Customer under the applicable order. ​
  12. DEFENSE OF THIRD PARTY CLAIMS.  Globain will defend or settle any third party claim against Customer to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Globain of the claim in writing, cooperates with Globain in the defense, and allows Globain to solely control the defense or settlement of the claim.  Costs. Globain will pay infringement claim defense costs it incurs in defending Customer, and Globain negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Globain may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If Globain determines that none of these are reasonably available, then Globain may terminate the Software and refund (as applicable) any prepaid and unused fees service fees. Exclusions. Globain has no obligation for any claim arising from: Globain’s compliance with Customer’s specifications; a combination of the Software with other technology or aspects where the infringement would not occur but for the combination; or technology or aspects not provided by Globain. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND GLOBAIN’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
  13. OTHER TERMS.​
    1. Governing Law and Exclusive Forum. This agreement is governed by the laws of the State of Pennsylvania (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.  Any suit or legal proceeding must be exclusively brought in the federal or state courts for Bucks County, Pennsylvania, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction.  The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.
    2. Entire Agreement. This agreement, the order and any statement of work constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.  Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.
    3. Non-Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all of the business or assets, of a party.
    4. Independent Contractors. The parties are independent contractors with respect to each other.
    5. Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
    6. Order of Precedence.  If there is an inconsistency between an order and this agreement, the order prevails.
    7. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
    8. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
    9. Usage Statistics. The Software will send non-personally identifiable usage statistics (e.g. number of assessments and number of active users) to Globain via email no more than once each month for purposes of license compliance. 
    10. Compliance Audit. No more than once in any 12-month period and upon at least 30 days advance notice, Globain (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
    11. Modification Only in Writing. No modification or waiver of any term of this agreement is effective unless signed by both parties.
    12. Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations. 
    13. US GOVERNMENT RESTRICTED RIGHTS. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
    14. No PO Terms.  Globain rejects additional or conflicting terms of a Customer’s form-purchasing document.
    15. Open Source Software Licenses. The Software may contain embedded open source software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.

 

 

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