Terms of Service
Effective: March 1, 2023
Thank you for choosing Glofox!
These Terms of Service (“Terms”) between Zappy Limited d/b/a Glofox, a private company limited by shares, registered in Ireland with registration number 538463 and located at 3 Dublin Landings, North Wall Quay, Dublin 1, Dublin, D01 C4E0, Ireland (“Glofox,” “we,” “us” or “our”) and you (“Subscriber,” “you” or “your”) apply to the purchase of licenses and/or subscriptions for Glofox Offerings.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OR BY ACCESSING ANY PORTION OF THE GLOFOX PLATFORM, YOU CONSENT TO THE TERMS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS, YOU MUST NOT ACCEPT THE AGREEMENT AND YOU MAY NOT ACCESS THE GLOFOX PLATFORM OR USE OUR OFFERINGS.
1. DEFINITIONS.
Terms not defined elsewhere in the Agreement will have the meanings below:
“Affiliates” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
“Agreement” means these Terms, together with an Order Form, the Privacy Statement, and any other amendments, schedules, exhibits or appendices (collectively, “Addenda”) entered into by you and Glofox.
“Authorized User” means Subscriber’s employee, its Affiliate’s employee, or a permitted third-party agent for whom Subscriber creates a unique username and password under its Glofox account.
“Claim” means a claim, action, complaint, or legal regulatory body, administrative or judicial proceeding filed against a party.
“Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Any Glofox Technology and the terms and conditions of the Agreement will be deemed our Confidential Information without any marking or further designation. Any Subscriber Data will be deemed your Confidential Information without any marking or further designation. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
“Delivery” means the date that Glofox makes the Purchased Services available to you for use.
“Documentation” means the documentation, in all forms, relating to the Glofox Offerings, as such documentation may be revised from time to time and as made available by Glofox.
“Effective Date” means the earlier of the date that you accept these Terms or sign an Order Form.
“End Users” mean Subscriber’s active or prospective members, clients or customers with authorization to create an account and/or access and use the Platform.
“Fees” mean the fees for Purchased Services as described in an Order Form, as well as any other fees, charges, assessments or withholdings permitted by the Agreement or authorized by you.
“Glofox Technology” means any concepts, inventions, systems, processes, techniques, methodologies, know-how, data, tools, templates, technology (including, without limitation, software in executable code and source code), or any other information, data, materials, and any expressions of the foregoing, developed by, owned by, or licensed to Glofox and/or its Affiliates.
“Hardware” means the computer equipment, point-of-sale terminals, or other technical hardware distributed or made available by Glofox, or by an authorized reseller or distributer of our Offerings.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Offerings” mean the products, services and other offerings made commercially available by Glofox and Affiliates, including our hosted software tools for marketing, sales, business management, member experience and retention.
“Order Form” means Glofox’s quote or ordering document (including, without limitation, an online version of the Order Form) accepted by a subscriber via purchase order or other ordering document submitted to Glofox (directly or indirectly through an authorized reseller) to order Offerings. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of the Agreement.
“Platform” means the cloud-based software-as-a-service currently known as “Glofox,” including, without limitation, Glofox’s software platform, systems, servers, APIs, website, mobile application(s) and associated Glofox Technology that is owned, licensed or operated by Glofox or Affiliates and made commercially available pursuant to this Agreement.
“Privacy Statement” means the Glofox privacy statement, as may be revised from time to time, with the most current version available here.
“Professional Services” means consulting, advanced training, implementation or technical support services provided by Glofox to Subscribers, as set out in the Order Form or in a separate contracting document (such as a Statement of Work);
“Purchased Services” means the products, services, subscriptions and licenses to certain Offerings which you have a right to access and use as described in your Order Form.
“Sensitive Personal Information” means any of the following: (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) not authorized or covered by a duly executed Business Association Agreement with Glofox; or (b) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation (“GDPR”) or any successor directive or regulation).
“Subscriber Data” means the information, materials, data and other content (including data belonging to End Users, which may include an End User’s personal data) entered, uploaded or inputted into the Platform and tied to a Subscriber’s Glofox log-in credentials or business location(s).
“Team” means all Glofox employees, officers, directors, owners, attorneys, representatives or Affiliates.
“Term” means the Initial Term and any Renewal Term(s), as applicable, as described in the Order Form.
2. ELIGIBILITY.
To be eligible to access the Platform and use Purchased Services, you must: (a) be at least 18 years old and able to enter into contracts; (b) agree to these Terms; (c) comply with applicable law; and (d) provide true, complete, and up-to-date billing information. By accessing the Platform or using Purchased Services, you acknowledge that you meet all of these eligibility requirements.
3. MODIFICATION.
3.1 Changing These Terms. We reserve the right to change, modify, add, or remove portions of these Terms at any time by posting such changes on or through the Platform, or on our website. Please check the website and the Platform periodically for changes to the Terms. Your continued use of Purchased Services after such changes have been posted constitutes your binding acceptance of the changes. The amended Terms will automatically be effective upon the earlier of (a) your continued use of Purchased Services, or (b) 30 days from posting of such modified Terms on or through the Platform or website. The resolution of any dispute that arises between you and us will be governed by the Terms in effect at the time of such dispute.
3.2 Other Changes to the Agreement. Except as described in this Section, no modification of the Agreement will be binding unless in writing and signed by an authorized representative for the parties.
3.3 Changes Required By Applicable Law. Any changes required by law may be made by us immediately. Although we will use reasonable efforts to provide you with advance notice, such required changes may be made by us without your advance knowledge or consent.
3.4 Changes to the Platform. We continually strive to improve the quality of our Offerings and use of the Platform. To these ends, we may from time to time make changes to the Platform or your Purchased Services to include enhancements, add new features or functionalities, or launch upgrades (collectively, “Enhancements”). Enhancements should improve your use of Purchased Services and the Platform and should not degrade your experience. Whenever possible, we will announce the release of Enhancements in advance. Unless otherwise noted in the Agreement, or unless we agree with you otherwise, you will not be required to pay any additional Fees for your use of Enhancements.
4. PURCHASED SERVICES.
4.1 Grant of Licensed Rights. Subject to your compliance with the terms and conditions of the Agreement, we will: (a) make the Purchased Services available to you subject to the terms and conditions of the Agreement, including these Terms; (b) provide implementation and standard support services related to your Purchased Services at no additional charge and upgraded support for an additional charge (if applicable); and (c) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for (i) planned downtime (for which we will attempt to give advance notice), and (ii) any unavailability caused by a Force Majeure Event (defined below in Section19.5). In exchange for your timely payment of Fees, we grant you a non-exclusive, non-transferable and non-sublicensable right to access the Platform and Documentation, and use Purchased Services, for your legitimate business purposes at the specific business location(s) identified in your Order Form for the duration of the Term.
4.2 Trials, Evaluations & Beta Licenses. Offerings provided for trials and evaluations, as specified in an Order Form, are provided at no charge, and their use will be for the specified limited duration. Some Offerings may be available to you as a preview, or as a beta or other pre-release version (each, a “Beta Offering”). All rights for Beta Offerings are solely for internal testing and evaluation. Your use of a Beta Offering will be for the term specified by us, and if no term is specified, then for the earlier of one year from the start date of the Beta Offering or when that version of the Beta Offering becomes generally available. We may discontinue the Beta Offering at any time and may decide not to make any of the features and functionality generally available. Notwithstanding anything to the contrary in these Terms, we do not provide maintenance and support, warranties, or indemnification for free trials, evaluations or Beta Offerings.
4.3 License Restrictions. Except as expressly permitted in your Order Form, you agree as a condition of the license that you and your Affiliates are restricted from and shall not:
(a) use the Platform or Purchased Services (i) in violation of applicable law or regulation or in connection with such unlawful material (such as material that violates any obscenity, defamation, harassment, privacy, publicity or intellectual property laws); or (ii) in a manner that would cause a material risk to the security or operation of the Platform or to any of our other subscribers.
(b) copy, distribute, republish, download, display, sell, rent, lease, host or sub-license the Platform, Glofox Technology or the Purchased Services, or attempt to use Confidential Information to create a product or service that is similar to or competitive with our Offerings;
(c) intentionally try to bypass a security mechanism of the Platform, or intentionally transmit material which contains viruses, Trojan horses, worms or some other harmful computer program;
(d) attempt to interact with the operating system or networks underlying the Platform or any Glofox Technology, or modify, create derivative works of, adapt, translate, reverse-engineer, decompile, or otherwise attempt to discover the underlying technology of the Platform or Glofox Technology, the source code, data representations, or underlying algorithms, processes and methods;
(e) remove, obscure, or alter any proprietary notices associated with the Platform, Glofox Technology or our Offerings;
(f) use any software components, modules or other services that may be delivered with the Platform but which are not licensed to you and identified in your Order Form;
(g) send unsolicited advertising, marketing or promotional materials, whether by email or text, without the recipient’s legally-valid consent; or
(h) violate the Agreement.
We reserve the right to immediately suspend or discontinue Purchased Services, or your access to the Platform, where we have reason to believe you have violated this provision.
4.4 Reservation of Rights. We retain all right, title, and interest in and to the Platform, our Offerings and Glofox Technology, and all related Intellectual Property Rights, including, without limitation, any Enhancements thereto. Your rights to access the Platform and Documentation, and use Purchased Services, are limited to those expressly set forth in these Terms. All rights not expressly granted herein are reserved.
4.5 Glofox Account. Only you and your Authorized Users have rights to access your Glofox account. You and Authorized Users are strictly forbidden from sharing or allowing third parties to use it. You must keep log-in credentials to your Glofox account secure at all times. If you suspect that your account or credentials have been or are being used by an unauthorized third party, or have been compromised, please contact us immediately at [email protected]. We may attribute all use of your Glofox account to you, and you agree to be responsible for all activities that occur under your account. You grant us the right to update any of the contact information associated with your account for billing purposes.
4.6 Hardware. You are solely responsible for setting up, maintaining and paying for your own technical equipment and Hardware needed to access the Platform or use Purchased Services. Technical equipment and Hardware may include, without limitation, the internet connection at your business location, modems, payment terminals, peripherals, tablets, mobile devices and workstations, and any third-party services related to such technical equipment and Hardware. We make no warranties on your Hardware and expressly disclaim all liability related to or arising from your use of Hardware associated with Purchased Services.
4.7 Glofox APIs. If we make access to any APIs available as part of Purchased Services, we reserve the right to place limits on access to such APIs (for example, limits on the number of calls or requests). Further, we may monitor your usage of such APIs and limit the number of calls or requests you may make if we believe that your usage is in breach of the Agreement or may negatively affect the security, operability, or integrity of the Platform or any of our Offerings (or otherwise impose liability on us).
5. PROFESSIONAL SERVICES.
5.1 Engagement. Only an initial online training and implementation come standard with the Fees associated with your Purchased Services. Supplemental or on-site training, consulting work, custom reporting and technical support services will all be considered as separate engagements for Professional Services outside the scope of the Agreement (although we will consider the fees you owed for Professional Services to be part of the Fees owed under the Agreement). Unless Professional Services are described in your Order Form (and associated fees quoted as a separate line item), engagements for Professional Services will be quoted by us separately and must be accepted by you in writing, generally in a formal Statement of Work. If we bill for Professional Services on an hourly basis, we will do our best to approximate the number of hours needed to complete the engagement. However, if we go over on estimated hours, you will be responsible for all overage hours worked.
5.2 Personnel. We will be responsible for all taxes and employment obligations arising from our employment of personnel or contractors who perform Professional Services. You agree that we may use subcontractors in the performance of Professional Services. Where we subcontract any of our obligations to provide Professional Services, we will not be relieved of our obligations to you under the Agreement or any separate contract for Professional Services.
5.3 Limited Warranty. We warrant that Professional Services will be performed in a professional and workmanlike manner. You must notify us in writing of a breach of this warranty within 30 days of performance of the Professional Services. To the extent permitted by law, your sole and exclusive remedy for breach of this warranty and our sole liability under or in connection with this warranty will be the re-performance of the relevant Professional Services.
5.4 No Advice. Whether related to Professional Services or not, we and our Team, including our Affiliates, do not provide any tax, legal or accounting advice. Any materials (including best practices, templates or exemplars) provided by us, any member of our Team, or our Affiliates have been prepared for informational purposes only, and are not intended to, and should not be relied on as tax, legal or accounting advice.
6. SUBSCRIBER DATA AND SUBSCRIBER OBLIGATIONS.
6.1 Rights in Subscriber Data. As between the parties, you will retain all rights, title and interest (including any and all Intellectual Property Rights) in and to Subscriber Data. Subject to the terms and conditions of the Agreement, you hereby grant us a non-exclusive, worldwide, royalty-free right to use, copy, store, modify, create derivative works of and display Subscriber Data solely to the extent necessary to provide you with Purchased Services.
6.2 No Archiving Responsibilities. We are not an archive for your Subscriber Data and shall have no obligation to keep your Subscriber Data on our Platform after the Agreement has expired or been terminated. It will be your sole responsibility to maintain appropriate copies of any Subscriber Data that you consider important on your technology systems or other appropriate storage locations.
6.3 Data Processing by Glofox. All of our data processing activities will be governed by the Data Processing Addendum (“DPA”) incorporated by reference into the Agreement.
6.4 Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, you agree that we may obtain and aggregate technical and other data about your and your Authorized Users’ use of the Purchased Services that is non-personally identifiable (“Aggregated Anonymized Data”), and we may use the Aggregated Anonymized Data to analyze, improve, support and operate the Platform and otherwise for any other business purpose during and after the Term of the Agreement, including without limitation to generate industry benchmark, best practice guidance, or issue recommendations in similar reports or resources. For clarity, this Section does not give us the right to identify you as the source of any Aggregated Anonymous Data.
6.5 Subscriber Obligations. Your failure to comply with any of the obligations described below may be considered grounds for suspension of Purchased Service or considered by us to be a material breach of the Agreement.
(a) In General. You will be solely responsible for the accuracy, content and legality of your Subscriber Data. You represent and warrant to us that you have all necessary rights, consents, permissions to collect, share and use Subscriber Data as contemplated in the Agreement (including granting us the rights above in Section 6.1) and that no Subscriber Data will violate or infringe (i) any third party Intellectual Property Rights or, publicity, privacy or other rights, (ii) any applicable laws; or (iii) any terms of service, privacy policies or other agreements governing your Glofox account with any third-party platform. You will be responsible for any Subscriber Data submitted to the Platform by all of your Authorized Users.
(b) No Sensitive Personal Information. You agree not to use Purchased Services or the Platform to collect, store, process or transmit Sensitive Personal Information.
(c) Compliance with Applicable Laws. You agree to comply with applicable laws in your access to the Platform or use of Purchased Services. Without limiting the generality of the foregoing, you will not engage in any unsolicited advertising, marketing or other activities through the Platform, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991 (“TCPA”), the CAN-SPAM Act of 2003 or any other anti-spam laws and regulations. You further acknowledge that you will be solely responsible for complying with any applicable health club, health spa, or similar state or local legislation relating to the content and requirements of your contracts with End Users.
(d) Other Obligations. In addition to the obligations above, you agree to (i) cooperate with us in all matters related to the Agreement; (ii) keep your billing information accurate and up-to-date; (iii) provide us with timely access to all information that we may reasonably need to provide you with Purchased Services; and (iv) ensure that all networks, internet connections and other technology systems within your control are secure and meet our minimum system requirements.
7. PAYMENT.
The payment terms below only apply when you purchase Offerings directly from us. When you purchase Offerings from an authorized Glofox reseller, the payment terms are between you and the authorized reseller.
7.1 Fees. You agree to pay all Fees specified in the Order Form or otherwise permitted by the Agreement. Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in these Terms. Without limiting any of our other rights or remedies herein, overdue charges may accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. All Fees must be paid in the currency invoiced. We reserve the right to increase your Fees at the start of each Renewal Term(s) by providing you a 30-day prior written notice.
7.2 Payment Due Date; Dispute Procedures. Fees are due and payable either within 30 days from the date of invoice receipt or as otherwise stated in the Order Form (whether on a monthly, quarterly or annual basis). Please report any invoice errors immediately. If you fail to raise an objection to a Glofox invoice within 30 days after the date you receive it, the invoice will be presumed correct. You must pay the undisputed portion of all invoices as required by the Agreement. Your obligation to pay Fees is not contingent on the delivery of any Enhancements, or dependent on any oral or written public comments made by us regarding any future functionality or feature. Your failure to pay Fees or any other amounts owed to us under the Agreement may be considered a material breach of the Agreement.
7.3 Credit Cards. If you choose to pay by credit or debit card, you (a) will provide Glofox or its designated third-party payment processor with valid credit or debit card information; and (b) hereby authorize Glofox or its designated third-party payment processor to charge such credit or debit card for all amounts permitted by the Agreement, including Fees for Purchased Services. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order Form.
7.4 Taxes. All Fees quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. You are responsible for paying any taxes or similar government assessments (including, without limitation, value-added, sales, use or withholding taxes). If we pay taxes on your behalf, we will send you a special tax invoice which you will be expected to pay within 30 days following your receipt of such invoice. We will be obligated to comply with valid tax liens and levies associated with your account. We will be solely responsible for taxes assessable against us based on our net income, property and employees.
7.5 Collection. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
8. TERM; TERMINATION; SUSPENSION.
8.1 Term; Automatic Renewal. The Term of the Agreement shall commence on the Effective Date described in your Order Form and will continue for the duration of the Initial Term unless earlier terminated by either party in accordance with the terms of the Agreement. At the end of the Initial Term, the Agreement will automatically renew for successive Renewal Term(s) (as identified in the Order Form) unless you provide us with a 30-day written notice prior to the end of the Initial Term or, as applicable, the Renewal Term. If no Term is described in your Order Form, then the Agreement will be considered month-to-month, terminable by either party with a 30-day written notice.
8.2 Termination for Convenience. We shall have the right to terminate the Agreement for convenience at any time for any reason not expressly prohibited by law.
8.3 Termination for Cause. Either party may terminate the Agreement, or any of the Purchased Services, by written notice to the other party: (a) upon 30 days written notice of a material breach if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately if the other party dissolves or ceases to do business in the ordinary course; or (d) immediately if you violate the “License Restrictions” provisions described in Section 4.3 or your confidentiality obligations described in Section 11.
8.4 Effect of Termination. Upon termination or expiration of the Agreement for any reason: (a) all licenses granted by Glofox to you under the Agreement shall terminate; (b) all licenses granted by you to Glofox under the Agreement shall terminate; and (c) Glofox will shall use reasonable efforts to make available and/or deliver Subscriber Data to you or a third party that you designate within 60 days following termination of the Agreement; provided, however, that Glofox shall have no obligation to return Subscriber Data unless and until all outstanding Fees have been paid, including, without limitation, payment of our then-current off-boarding fee; and, provided further, that Glofox shall have no obligation to provide Subscriber Data to you outside of its standard processes and procedures for off-boarding such data, including, without limitation, Glofox’s file transfer mechanisms and standard file format; and (d) after such 60-day period, Glofox shall have no continuing obligation to keep, hold or store Subscriber Data, except as may be required by applicable law.
8.5 Suspension. In addition to any of our other rights and remedies (including, without limitation, any termination rights), we reserve the right to suspend Purchased Services or your access to the Platform: (a) if you are 30 days or more overdue in paying our Fees; (b) if you are, or if we have reason to believe, you are violating the License Restrictions described in Section 4.3 above; (c) if you are in material breach of the Agreement; (d) if we deem the suspension necessary to protect the availability, integrity, resilience or security of the Platform; or (e) as required by law or by judicial authority.
8.6 Survival. The terms of this Section 8 and the terms of the following Sections will survive the expiration or termination of the Agreement: Sections 4.4 (Reservation of Rights), 9 (Third Parties), 10 (Ownership), 11 (Confidentiality), 12 (Indemnification), 13 (Limitations of Liability), 14 (Limited Warranties), 15 (Privacy & Data Protection), 16 (Dispute Resolution),18 (Applicable Law; Venue) and 19 (General Terms).
9. THIRD PARTIES.
9.1 Authorized Resellers. If you purchase Offerings through an authorized Glofox reseller, then these Terms will govern those Offerings but your payment obligations for Purchased Services will be with the authorized reseller, not Glofox; in that case, you will have no direct Fee payment obligations to Glofox for those Offerings. Any terms agreed to between you and the authorized reseller that are in addition to these Terms are solely between you and the authorized reseller. No agreement between you and an authorized reseller is binding on us, or will it have any force or effect with respect to the rights in, or the operation, use or provision of, the Offerings.
9.2 Third-Party Sites, Products & Services. Our Platform may include links to other websites or services (“Linked Sites”) solely as a convenience to you. These Linked Sites may include, without limitation, social media sites like Facebook, Instagram, or Twitter. Unless otherwise specifically and explicitly indicated, Glofox does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, we make no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. More generally, we may, from time to time, make available certain features or functionalities that allow you to integrate with or use the Purchased Services or Platform with products or services offered and provided by third parties (“Third-Party Services”). You are solely responsible for complying with any applicable terms and conditions for Third-Party Services, which are separate and independent of the terms and conditions of the Agreement. ALL LINKED SITES AND THIRD-PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. WE DISCLAIM ALL OBLIGATIONS AND LIABILITIES UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH LINKED SITES AND THIRD-PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF SUBSCRIBER DATA OR UNAUTHORIZED ACCESS TO SUBSCRIBER DATA. USE OF LINKED SITES AND/OR THIRD-PARTY SERVICES IS SOLELY AT YOUR OWN RISK.
9.3 Payment Services Through Stripe. The Platform integrates with third-party payment processor, Stripe, to permit certain payment processing functionalities as part of our Offerings. We refer to these payment services and functionalities as integrated with Stripe as “Glofox Payments.” Whether you receive payment services through Glofox Payments, or directly with Stripe, for purposes of the Agreement we will refer to all of these functions as “Payment Services.” Payment Services are provided by Stripe and your receipt of Payment Services will be subject to Stripe’s separate Stripe Connected Account Agreement, available here. The Stripe Connected Account Agreement and Stripe’s Terms of Service shall be referred to collectively as the “Stripe Services Agreement.”
If you receive Payment Services through the Platform, then in addition to being subject to our Agreement (including these Terms), you also accept and agree to be bound by the Stripe Services Agreement. As a condition to your receipt of Payment Services and enabling this Offering, you agree to provide us with complete and accurate information about your business and you expressly authorize us to share this information with Stripe, including, as applicable, any transaction-related information, for your receipt and use of Payment Services. Any applicable Fees or other charges (including, without limitation, fees for chargebacks, collection fees, convenience fees, or charges incidental to the collection of delinquent accounts) related to Payment Services are described in your Order Form. During the Term of the Agreement, if Stripe increases its payment processing fees on transactions run at your business location (which would normally be the result of increased fees charged by the major card brand networks), we shall have the right to pass along these fee increases to you and adjust your Fees for Payment Services accordingly. In this instance, we will use reasonable efforts to notify you in writing (email will be sufficient) at least 14 days in advance of such fee increases taking effect.
By entering into an Agreement, you authorize and expressly permit us to collect any Fees (including Fees related to Payment Services) or other amounts owed to us under the Agreement directly from the funds payable to you as the result of your receipt of Payment Services. If the amount of funds payable to you after payment settlement is insufficient to cover our Fees or other amounts owed to us under the Agreement, then we may charge or debit your bank account or credit card associated with the account or seek Fees from another business location where you receive Payment Services through the Platform.
All merchants or sub-merchants receiving Payment Services must submit to risk underwriting prior to receiving Payment Services. As a condition of your receipt of Payment Services, you consent to and agree to cooperate with our or Stripe’s standard underwriting process, including, without limitation, providing us with documentation or information that we reasonably request. We may, as circumstances dictate, require an owner or principal associated with Subscriber to sign a personal guarantee for receipt of Payment Services. You consent to receiving communications from us, or our authorized agent for Payment Services, relating to any matter related to your Payment Services account, including, without limitation, emails or calls seeking to collect on a delinquent account.
IT SHALL BE YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO PREPARE THE TERMS AND CONDITIONS ASSOCIATED WITH THE SALE AND PROVISION OF YOUR OWN PRODUCTS AND SERVICES TO END USERS. WE EXPRESSLY DISCLAIM ANY LIABILITY RELATED TO OR ARISING FROM YOUR CONTRACTS, AGREEMENTS OR TERMS WITH END USERS. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US AND OUR AFFILIATES HARMLESS FROM ANY DAMAGES OR LIABILITY RESULTING FROM OR ARISING OUT OF THE BUSINESS RELATIONSHIP BETWEEN YOU AND YOUR END USERS, INCLUDING ANY LIABILITY RESULTING FROM OR ARISING OUT OF YOUR MEMBERSHIP AGREEMENTS OR OTHER CONTRACTS OR LEGAL DOCUMENTS FOR YOUR PRODUCTS OR SERVICES.
10. OWNERSHIP.
10.1 Glofox Ownership. As between you and Glofox, we own and reserve all right, title, and interest in and to the Platform, our Offerings, and all Glofox Technology, including, without limitation, all Intellectual Property Rights associated therewith. We retain rights in anything delivered or developed by us or on our behalf under the Agreement. No rights are granted to you other than as expressly set forth in the Agreement.
10.2 Subscriber Ownership. As between you and Glofox, you own and reserve all right, title and interest in and to your Subscriber Data (with the understanding that you may not own data related to individual End Users, including without limitation End User card data, as applicable).
10.3 Feedback. You have no obligation to provide us with ideas for improvement, suggestions or other feedback (collectively, “Feedback”) in connection with an Offering, unless otherwise expressly set forth in the applicable Order Form. If, however, you provide any Feedback, you hereby grant to Glofox a non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.
11. CONFIDENTIALITY.
11.1 Obligations and Restrictions. The Receiving Party will: (a) keep the Disclosing Party’s Confidential Information confidential; (b) not disclose such Confidential Information to any third party other than its officers, directors, employees or contractors working on Receiving Party’s behalf (collectively, “Representatives”) without the Disclosing Party’s written permission; (c) exclusively use such Confidential Information for its intended purpose; and (d) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The Receiving Party may disclose Confidential Information to its Representatives provided that each such individual is bound by confidentiality obligations that are at least as restrictive as the terms contained in the Agreement. The Receiving Party is responsible for its Representatives’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with the Agreement. Subscriber acknowledges that subcontractors and sub-processors of Subscriber Data may have access to Confidential Information that is shared through the Platform.
11.2 Compelled Disclosure. In the event that Receiving Party is required to disclose Confidential Information in a judicial or administrative proceeding, Receiving Party shall, to the extent permitted by law, give Disclosing Party as much advance notice as practical of the possibility of disclosure to allow Disclosing Party to stop such disclosure or obtain a protective order concerning such disclosure and/or waive compliance with the provisions of this Section. If, in the absence of a protective order or other remedy or the receipt of a waiver by Disclosing Party, Receiving Party is nonetheless, in the opinion of Receiving Party’s counsel, legally obligated to disclose Confidential Information, Receiving Party agrees to disclose only that portion of the Confidential Information which its counsel advises is legally required to be so disclosed and to exercise commercially reasonably efforts to preserve the confidentiality of the Confidential Information so disclosed, including, without limitation, by cooperating with Disclosing Party to obtain reliable assurance that confidential treatment will be given to such Confidential Information by such judicial or administrative body.
11.3 Equitable Relief. The Receiving Party acknowledges that the unauthorized use or disclosure of the Disclosing Party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the Disclosing Party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
12. INDEMNIFICATION.
12.1 Glofox Indemnity Obligations. Subject to the indemnification conditions described in Section 12.3, we will defend, at our expense, any third-party Claim against you made during the Term to the extent the Claim alleges that (a) the Platform or Purchased Services directly infringe on a third party’s patent, copyright or trademark; or that (b) we have misappropriated the third party’s trade secret (“Infringement Claim”). We will pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to by us in writing). In the defense or settlement of any Infringement Claim, we may, at our sole option and expense: (i) procure for you a license to continue using the Platform or Purchased Services (or its infringing part) under the terms of this Agreement; (ii) replace or modify the allegedly infringing Platform or Purchased Service (or its infringing part) to avoid the infringement; or (iii) where (i) or (ii) are not reasonable or commercially feasible, terminate your license and access to the Platform and/or Purchased Services (or its infringing part) and issue you a refund for any prepaid Fees related to the loss of such Purchased Services. Notwithstanding the foregoing, we shall have no liability for any Infringement Claim that arises from any: (A) use of the Platform or Purchased Services in violation of the Agreement; (B) modification of the Platform or Purchased Services by you or any third party acting on your behalf; (C) failure by you to install the latest updated version of Platform software or Purchased Services as requested by us to avoid infringement; or (D) third party products, services, hardware, software or other materials, or combination of these with the Platform or Purchased Services, if the Platform or Purchased Services would not be infringing without this combination.
12.2 Subscriber Indemnity Obligations. Subject to the indemnification conditions described in Section 12.3, you will defend, indemnify and hold us and our Team harmless for any Claim, including legal fees and expenses, that result, directly or indirectly, from: (a) your Subscriber Data; (b) your breach of the Agreement, including without limitation your violation of the License Restrictions described in Section 4.3; (c) your infringement on the intellectual property rights of a third party; or (d) any other indemnifiable event as provided elsewhere in the Agreement.
12.3 Indemnification Conditions. The indemnifying party, whether you or us, shall have no liability for any Claim that arises from any failure of the indemnified party to: (a) notify the indemnifying party in writing of the Claim promptly upon the earlier of learning of or receiving a notice of it, to the extent that the indemnifying party is prejudiced by this failure; (b) provide the indemnifying party with reasonable assistance requested by the indemnifying party for the defense or settlement (as applicable) of the Claim; (c) provide the indemnifying party with the exclusive right to control and the authority to settle the Claim; and (d) refrain from making admissions or statements about the Claim without the indemnifying party’s prior written consent.
12.4 Sole and Exclusive Remedy. The remedies in this Section 12 (Indemnification) are, in addition to any termination or suspension remedies expressly set forth in this Agreement, the indemnified party’s sole and exclusive remedies and the indemnifying party’s sole liability regarding the subject matter giving rise to any Claim, including any claims regarding confidentiality obligations involving Subscriber Data that may arise from an incident resulting in a data breach.
13. LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY WHICH, BY LAW, CANNOT BE LIMITED (“EXCLUDED CLAIMS”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
13.1 IN NO EVENT SHALL WE OR ANY MEMBER OF OUR TEAM BE LIABLE OR RESPONSIBLE TO YOU FOR LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF WHETHER YOU OR YOUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
13.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT, YOUR ACCESS TO THE PLATFORM OR YOUR USE OF PURCHASED SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO GLOFOX FOR PURCHASED SERVICES DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY.THE LIABILITY CAP DESCRIBED HEREIN WILL APPLY IN THE AGGREGATE TO ANY AND ALL CLAIMS BY YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE.
13.3 Independent Allocation of Risk. You acknowledge and agree that the essential purpose of this Section is to allocate the risks under the Agreement between the parties and limit potential liability given the Fees charged, which would have been substantially higher if we were to assume any further liability other than as set forth herein. This allocation is an essential element of the basis of the bargain between you and us. Each of these provisions is severable and independent of all other provisions of the Agreement, and each of these provisions will apply even if the limited warranties in the Agreement have failed of their essential purpose.
13.4 Time Limitation. You further agree that any Claim which you may have against us must be filed within one (1) year after such Claim arose, otherwise the Claim shall be permanently barred.
14. LIMITED WARRANTY.
14.1 Limited Warranty. We represent and warrant, for your benefit only, that the Purchased Services will operate in substantial conformity with applicable Documentation. Our sole liability (and your sole and exclusive remedy) for any breach of this warranty will be, at no charge to you, for Glofox to use commercially reasonable efforts to correct the reported non-conformity, or if we determine such remedy to be impracticable, either party may terminate the Agreement and you will receive as your sole remedy a refund of any prepaid fees for Purchased Services. The limited warranty set forth herein will not apply: (a) unless you make a claim within 30 days of the date on which you first noticed the non-conformity; (b) if the error was caused by misuse, unauthorized modification or Third-Party Services or Hardware; or (c) to use provided for Beta Offerings.
14.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 14.1, THE PLATFORM AND ALL PURCHASED SERVICES ARE PROVIDED “AS IS.” NEITHER GLOFOX NOR ITS AFFILIATES OR SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GLOFOX DOES NOT WARRANT THAT ITS SUBSCRIBERS’ USE OF THE PLATFORM OR ANY PURCHASED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES GLOFOX WARRANT THAT IT WILL REVIEW SUBSCRIBER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN SUBSCRIBER DATA WITHOUT LOSS OR CORRUPTION. GLOFOX SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING PURCHASED SERVICES. GLOFOX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY SERVICES, HARDWARE, OR OTHER TECHNOLOGY SYSTEMS OR SERVICES OUTSIDE THE REASONABLE CONTROL OFGLOFOX. SUBSCRIBER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
15. PRIVACY & DATA PROTECTION.
15.1 Privacy. Please read the Privacy Statement carefully as it governs our collection, use, and disclosure of your or your End Users’ personal information. The Privacy Statement is expressly incorporated by reference into the Agreement.
15.2 General Security. Glofox follows globally recognized data protection principles and industry-leading standards for the security of personal data. Our data protection practices include (as applicable) standard terms for the processing of “personal data,” as defined under GDPR, and “personal information,” as defined under the California Consumer Privacy Act of 2018 (“CCPA”). Please refer to the Privacy Statement for more details.
15.3 Notification of Security Incident. If we become aware of a security incident related to our Platform or any Offerings that contain personal information of Subscriber or its End Users, we will notify you if required by law. In that event, we will also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply unless we are prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of Glofox for such incident.
16. DISPUTE RESOLUTION.
16.1 Dispute Resolution Procedure. Mindful of the high cost of legal disputes, not only in money but also in time and energy, both you and Glofox agree to the following dispute resolution procedure. In the event of any Claim or dispute arising out of or related to your Agreement with us, or the breach, enforcement, interpretation or validity of this Agreement, or any part of it (collectively, “Dispute”), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances (including any relevant documentation or evidence) of the Dispute, and allowing the receiving party 30 days from the date of sending to respond to the Dispute. Any dispute resolution notices should be sent to us at 2600 North Dallas Parkway, Ste. 590, Frisco, TX 75034 with an electronic copy sent to [email protected]. We will send you notice at the email address associated with your Glofox account.
16.2 Binding Arbitration. In the event that the parties are unable to resolve the Dispute through the procedure referenced above, then you and Glofox both agree that the parties shall resolve their Dispute utilizing binding arbitration, which shall be adjudicated by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) for binding arbitration under its rules then in effect before one arbitrator to be mutually agreed upon by both parties.
16.3 Arbitration Rules, Location and Cost. If you are a Subscriber based in the U.S., then the arbitration will take place in Dallas in the State of Texas, USA under Texas JAMS rules then in effect. If you are a Subscriber based outside of the U.S. (including the U.K. or EU), then the arbitration will take place in Dublin, Ireland in the English language under the JAMS international arbitration rules then in effect. The cost of arbitration shall be borne equally by the parties. Judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
16.4 CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND GLOFOX AGREE THAT (A) ANY CLAIM BROUGHT BY YOU OR GLOFOX AGAINST THE OTHER THAT ARISES FROM OR RELATES TO THE AGREEMENT SHALL NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. YOU HEREBY WAIVE YOUR RIGHT TO A CLASS ACTION LAWSUIT.
16.5 Exceptions to Arbitration. Notwithstanding the parties’ decision to resolve all disputes through arbitration, you and Glofox agree that nothing in this Section shall be deemed to waive, preclude, or otherwise limit either party’s right to: (a) bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of Intellectual Property Rights in any state or federal court with proper jurisdiction, or in the U.S. Patent and Trademark Office; (b) seek injunctive or equitable relief in any state or federal court with proper jurisdiction; or (c) bring a claim in any state or federal court with proper jurisdiction to seek payment of Fees owed to Glofox under the Agreement.
17. NOTICES.
Except as otherwise specified in the Agreement, all notices will be sent in writing to the addresses set forth in the applicable Order Form, or to such other address as may be specified by either party to the other, and will be effective upon (a) personal delivery; (b) the second business day after mailing; or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Subscriber will be addressed to the relevant billing contact designated in the Order Form. All other notices to Subscriber will be addressed to the relevant individual designated by Subscriber.
18. APPLICABLE LAW; VENUE.
18.1 For U.S. Subscribers. The Agreement will be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in Dallas, Texas, USA, and the parties hereby consent to personal jurisdiction and venue therein. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Intellectual Property Rights or other proprietary rights of Glofox, our Affiliates, or any third party. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to the Agreement.
18.2 For Non-U.S. Subscribers (including Subscribers in the U.K. and EU). The Agreement will be governed by and construed in accordance with the laws of Ireland, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under the Agreement will be brought exclusively in the courts located in Dublin, Ireland, and the parties hereby consent to personal jurisdiction and venue therein. Glofox may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Intellectual Property Rights or other proprietary rights of Glofox, its Affiliates, or any third party. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods will apply to the Agreement.
19. GENERAL TERMS
19.1 Assignment. Neither party may assign, delegate or transfer the Agreement, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of the other party; provided, however, that we may assign the Agreement, in whole or in part, to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of our assets to which the Agreement relates. Any attempt to assign the Agreement other than as permitted herein will be null and void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
19.2 Waiver; Severability. The waiver by either party of a breach of or a default under these Terms will not be effective unless in writing. The failure by either party to enforce any provisions of these Terms will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of the Agreement invalid or unenforceable, the remaining provisions of the Agreement, including, without limitation, these Terms, will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
19.3 Entire Agreement; Integration. The Agreement, along with any additional terms incorporated by reference therein, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Except as otherwise expressly set forth herein, any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of Glofox. If there is an actual conflict between these Terms and some other document made part of the Agreement, the conflict shall be resolved in the following order of priority, with these documents being made to control and govern: first, any later-signed Addenda; then, the Order Form; then these Terms; then the Privacy Statement; then any Service Level Agreement, as applicable.
19.4 Export Control and Economic Sanctions. You agree to comply with all export control and economic sanctions in your use of Purchased Services and any relevant import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) you represent and warrant that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions, (b) you will not (and will not permit any of your Authorized Users or End Users) access or use the Purchased Services in violation of any U.S. export control or economic sanction, prohibition or restriction, and (c) you will not load to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
19.5 Force Majeure. We shall not be in default under any provision of the Agreement or be liable for any delay, failure of performance or interruption in our Purchased Services or the Platform resulting from any cause beyond our reasonable control, including but not limited to: earthquake, lightning or other acts of God; fire or explosion; electrical faults; vandalism; cable cut; water; hurricanes; fire; flooding; severe weather conditions; actions of governmental or military authorities; national emergency; volcanic eruptions; insurrection; riots or war; terrorism or civil disturbance; global pandemics; strikes; lock-outs; work stoppages or other labor difficulties; supplier failure (including, without limitation, failure by Amazon Web Services); or telecommunication or other internet provider failure (each, a “Force Majeure Event”).
19.6 Interpretation; Counterparts. Headings are used in these Terms for reference only and will not be considered when interpreting the Agreement as a whole. The fact that we wrote these Terms will not have any affect on the way the Agreement is interpreted. Unless the context requires otherwise, words in the singular shall include the plural, and vice-versa, and reference to one gender shall include reference to both genders. The Order Form or any Addenda may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same Agreement. The Order Form or any Addenda may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
19.7 Equitable Relief. Your violation of the Agreement may cause irreparable harm to us or our Affiliates. We therefore have the right to seek injunctive relief, or other equitable relief, if you violate these Terms.
19.8 Marketing. By entering into an Agreement with us, you expressly consent to giving us the right to use your name and/or trademark for our own marketing or promotional purposes, including, without limitation, posting your name and/or trademark on our website and in other public-facing communications. If you do not wish to be listed as a reference for our Offerings, you may send an email to [email protected] stating that you do not want to be identified as a reference.
19.9 Party Relationship. At all times, you and Glofox are independent contractors, and are not the agents or representatives of the other. The Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to the Agreement. You must not represent to anyone that you are an agent of Glofox or are otherwise authorized to bind or commit us in any way without our prior written authorization.
19.10 Electronic Communications. You agree to the use of electronic communication in order to enter into agreements and place orders with us, and to the electronic delivery of notices, policies and records of transactions initiated or completed through our Offerings. Furthermore, you hereby waive any rights or requirements under the laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
