Welcome to GlimpzIt! GlimpzIt provides its proprietary platform to customers to start conversations, prompt mobile users or ask questions ("Conversations") and share opinions and responses ("Glimpzes") to such Conversations with other GlimpzIt users (both individuals and entities) who want to develop new products and services, improve existing offerings, acquire marketing content or just simply want to learn from the valuable experiences and input of others.
BY ACCEPTING THESE MASTER TERMS AND CONDITIONS (TOGETHER WITH ALL ORDERS (AS DEFINED BELOW), THIS "AGREEMENT"), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AND/OR CLICKING A BOX ACCEPTING AN ORDER, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS 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 AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Customer and SocialGlimpz Inc. ("GlimpzIt") hereby agree as follows:
This Agreement shall apply to Customer's use of GlimpzIt's proprietary platform, including its subscription analytics services and Conversation Services (as defined below) (collectively, the "Services"), ordered by Customer under an ordering document (including in online, click-through form) specifying the Services to be provided hereunder, and expressly referencing this Agreement (each, an "Order"). In the event of a conflict between these Platform Master Terms and Conditions and an Order, the terms of these Platform Master Terms and Conditions shall control unless expressly amended in such Order.
2. Free Version.
If Customer registers for a free version of the Services, GlimpzIt will make certain Services available to Customer on a trial basis free of charge subject to a limit of 100 Glimpzes per month until the earlier of (a) thirty (30) days from the commencement of such free trial (after which the Customer can only use the Services for non commercial use for an additional duration of three hundred and sixty-five (365) days), or (b) the start date of any purchased subscriptions ordered for such Services, unless otherwise mutually agreed upon by Customer and GlimpzIt. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES.
3. Right to Use the Services.
During the subscription term set forth in the applicable Order (the "Subscription Term"), GlimpzIt grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services subject to the terms of this Agreement.
4. Usage Restrictions and Representations.
4.1 Customer shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (the "Software"); (b) modify, translate, or create derivative works based on the Services or Software, or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to GlimpzIt; or (d) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service or otherwise outside of the scope of the express rights granted herein.
4.2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with GlimpzIt's provision of the Services. Customer shall be responsible for maintaining the security of its equipment and account access passwords. Customer represent and warrants that Customer will use the Services only in compliance applicable laws and regulations. Customer shall be liable for all acts and omissions of its Users.
4.3 When using certain Services, Customer may be subject to additional terms applicable to such Services, such as the Terms of Service located at http://www.GlimpzIt.com/termsofservice. If Customer engages GlimpzIt to administer Conversations on its behalf (the "Conversation Services"), the following terms and conditions will apply:
4.4 GlimpzIt may immediately suspend Customer's password, account, and access to the Services if (a) Customer fails to make payment due within ten (10) business days after GlimpzIt has provided Customer with notice of such failure; or (b) Customer materially breaches this Agreement, including without limitation any breach of Sections 3, 4, or 10. Any suspension by GlimpzIt of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
5.1 GlimpzIt retains all right, title and interest in and to the Services and Software (including all derivatives or improvements thereof), and all intellectual property rights therein and thereto. GlimpzIt exclusively owns all right, title and interest in all Conversation syntax, GlimpzIt option syntax, Conversation results and feedback and any previously collected registration data supplied by GlimpzIt to Customer for cross-references purposes (collectively, the "Conversation Data"). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by GlimpzIt. Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by GlimpzIt.
5.2 Excluding the Conversation Data, Customer owns any data, information or material originated by Customer that Customer submits or provides in the course of using the Services ("Customer Data"). Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Services. Customer represents and warrants that it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used or shared, as applicable, by GlimpzIt as part of the Services.
6. Billing and Payment.
6.1 For monthly payment plans, the Service is billed in advance on a monthly basis and is non-refundable. All Glimpzes processed within the month will be invoiced at the conclusion of the same month along with the monthly subscription fee. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. When changing from a monthly billing cycle to a yearly billing cycle, SocialGlimpz will bill for a full year at the next monthly billing date. For any upgrade or downgrade in plan level while on a monthly billing cycle, Customer will automatically be charged the new rate on next billing cycle. For upgrades or downgrades while on a yearly plan, SocialGlimpz will immediately charge or refund the difference in plan cost, prorated for the remaining time in your yearly billing cycle.
6.2 Customer shall pay all fees set forth in each Order, which may include monthly subscription fees and other usage and administrative fees, including, without limitation, fees based on the number of images and/or video responses processed by GlimpzIt on behalf of Customer and fees related to GlimpzIt's provision of respondents to Conversations. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 8.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on GlimpzIt's income), even if such amounts are not listed on the applicable Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
6.3 All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
7. Term and Termination.
7.1 This Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the end of the free trial if no purchased subscription is ordered). This Agreement will automatically renew for additional renewal periods of a duration equal to the Subscription Term, unless either party provides written notice to the other party at least thirty (30) days' prior to the end of the then-current term (or this Agreement is otherwise terminated as set forth herein).
7.2 Upon any termination or expiration of an Order, (a) all fees set forth on any terminated Order are immediately due and payable and (b) Customer's right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer's request if received within thirty (30) days of termination of an Order, GlimpzIt will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in GlimpzIt's possession. Customer acknowledges and agrees that GlimpzIt has no obligation to retain Customer Data and that GlimpzIt will have the right to irretrievably delete and destroy Customer Data after thirty (30) days following the termination of this Agreement. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions, confidentiality obligations, warranty disclaimers, and limitations of liability.
8. Representations, Disclaimer of Warranties.
8.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. GlimpzIt warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify GlimpzIt of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
8.2 For breach of the express warranty set forth above, Customer's exclusive remedy shall be the re-performance of the deficient Services. If GlimpzIt cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to GlimpzIt for such deficient Services, and such refund shall be GlimpzIt's entire liability.
8.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond GlimpzIt's reasonable control, but GlimpzIt shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
8.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, GLIMPZIT AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. GLIMPZIT AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GLIMPZIT AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER GLIMPZIT NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. GLIMPZIT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY GLIMPZIT, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS.
9. Limitation of Liability.
EXCEPT FOR LIABILITY ARISING FROM CUSTOMER'S BREACH OF SECTIONS 3 AND 4, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER'S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS.
10. Confidential Information.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information except as necessary to exercise the Receiving Party's rights or perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public; or (ii) was in its possession or known by its prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
11. Statistical Information.
Notwithstanding anything else in this Agreement or otherwise, GlimpzIt may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. GlimpzIt retains all intellectual property rights in such information.
GlimpzIt may give notice applicable to GlimpzIt's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in GlimpzIt's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in GlimpzIt's account information. If Customer has a dispute with GlimpzIt, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to GlimpzIt at 33 Longview Court, San Francisco, CA 94131.
13.1 Most concerns can be resolved quickly and to Customer's satisfaction by emailing customer support at info@GlimpzIt.com. In the unlikely event that our customer care team is unable to resolve a complaint Customer has (or if GlimpzIt has not been able to resolve a dispute it has with Customer after attempting to do so informally), each of Customer and GlimpzIt agree to resolve such disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction.
13.2 GlimpzIt and Customer agree to arbitrate all disputes and claims between them. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
13.3 For purposes of this Section 13, References to "GlimpzIt" includes GlimpzIt's respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between Customer and GlimpzIt. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude Customer from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against GlimpzIt on Customer's behalf. Customer agrees that, by entering into this Agreement, Customer and GlimpzIt are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
13.4 A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to GlimpzIt should be addressed to SocialGlimpz, Inc., 33 Longview Court, San Francisco, CA 94131 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If GlimpzIt and Customer do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, Customer or GlimpzIt may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by GlimpzIt or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or GlimpzIt is entitled.
13.5 The arbitration will be governed by the Commercial Arbitration Rules, Expedited Procedures, and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless GlimpzIt and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer's claim is for $10,000 or less, GlimpzIt agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer's claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. GlimpzIt will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if Customer initiates an arbitration in which Customer seeks more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
13.6 The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
13.7 The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. CUSTOMER AND GLIMPZIT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER'S OR GLIMPZIT'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and GlimpzIt agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
14. General Provisions.
14.1 Customer agrees that GlimpzIt may list Customer's name (including by displaying any Customer trademark) and identify the business relationship between the parties on GlimpzIt's website and in other marketing and advertising collateral, together with a list of other customers.
14.2 This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and GlimpzIt agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.
14.3 This Agreement (including all Order(s)), represents the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. Customer acknowledges that this Agreement is a contract between Customer and GlimpzIt, even though it may be electronic and not physically signed by Customer and GlimpzIt, and it governs Customer's use of the Service and takes the place of any prior agreements between Customer and GlimpzIt. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.4 No joint venture, partnership, employment, or agency relationship exists between GlimpzIt and Customer as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.
Last Updated: October 13, 2015