Last Updated: 07 January, 2021
Glynk Inc ("Company") provides a community platform and application program interface (API) on a software as a service and platform as a service basis ("Service", as further defined below). The Service is provided on a subscription basis as further described in this Agreement and on the Website under specific subscription plans offered by Provider from time to time. The Services are provided through the website glynk.com (the "Website"). This Agreement applies to anyone ("You"/"Customer") who subscribes for or otherwise uses the Services.
These terms (which together with any online order process or order form offered by glynk which incorporate these terms by reference ("order form") are collectively referred to as the "agreement") contain important limitations on representations, warranties, conditions, remedies and liabilities that are applicable to the services. Accordingly, you should read these terms carefully before using the services. Either by clicking a box indicating your acceptance or by executing an order form that references these terms, you agree to the terms hereof. If you are an agent or employee of an entity you represent and warrant that (i) the individual accepting this agreement is authorized to accept this agreement on such entity's behalf and to bind such entity, and (ii) such entity has full power, corporate or otherwise, to enter into this agreement and perform its obligations hereunder. If you do not accept these terms, then do not use the website or any of its content or services.
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms mentioned herein ("SERVICE TERMS"). As part of the registration process, Customer will identify an administrative username and password for Customer's Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate after due notification to the Customer in this regard.
Company will provide - Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms as follows
- Company will provide Technical Support to Customer via electronic mail on weekdays during the hours of 9:00 am through 7:00 pm Indian Standard time, with the exclusion of National Holidays ("Support Hours").
- Customer may initiate a helpdesk ticket any time by emailing [firstname.lastname@example.org].
- Company will use commercially reasonable efforts to respond to all Helpdesk requests within 3 business days from the time of raising a complaint.
2.1.1. Subject to the terms and conditions of this Agreement Company hereby grants Customer non-exclusive, non-transferable, revocable license to use the application and Services for the Term.
2.1.2. The Customer shall be provided access to the Service, and Company may authorize its employees to access it. Customers shall be responsible for use or misuse of the application and/or Services.
2.1.3. Customer understands and acknowledges that Customer shall not have the right to sublicense or re-distribute the Glynk Application/Service to third parties.
2.1.4. Nothing in this Agreement shall be considered as a grant of title or ownership in the application and Service to Customer including the Source-Code and Object-Code. The Glynk Application may not be decompiled, or reverse engineered by Customer.
3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company's standard published policies then in effect (the "Policy") available at: https://glynk.com/privacy and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services limited to the amount of the fees paid by Customer to Company for the services under this Agreement. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
4.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one year following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. The data will be stored on Glynk servers. However, Customer, at their cost, can request the Company to move the data to a private cloud or an on-premise solution. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
4.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the "Fees Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email), with the Customer having thirty (30) days to accept such change or terminate this Agreement . If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within thirty (30) days from the mailing date of the invoice. Unpaid amounts 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 expenses of collection and may result in immediate termination of Service. The prices set out in service order form are exclusive of all taxes, and shall be paid by the Customer.
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days prior written notice (or without notice in the case of non-payment), if the other party breaches any of the terms or conditions of this Agreement. If the breach is attributable to the, Customer, such party will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.3 On termination, all the Customer's community data on the platform will be provided to the Customer by the Company in a standard data file format.. Further, upon termination, Glynk should stop collecting data of Customer's users and stop using Customer's trademarks.
The Services shall be available 99%, measured monthly, excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime (Downtime Credit”); provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive Downtime Credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive Downtime Credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company's reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 6 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
(a) Escrow. Within sixty (60) days of Customer's written request, the parties shall enter into a source code escrow agreement that will provide for the release of the Software in the event the Company ceases operations without a successor in interest. The Customer shall be responsible for the cost of the escrow agreement and any annual fees associated with the escrow account, and a one-time license acquisition fee mutually agreed upon by both parties subject to "Release" terms mentioned herein under 10 (b). The company shall place the latest, complete, and accurate copy of all source code in escrow with a nationally recognized escrow agent for the benefit of the Customer. The materials placed in escrow shall include a computer readable copy of the source code for each of the services mentioned in this agreement. The original source code deposit along with any other materials placed in escrow pursuant to this Agreement shall be referred to herein as the "Deposited Materials."
(b) Release. The escrow agreement shall provide for release of the Deposited Materials to The Customer upon the occurrence of any of the following: (i) The Company at any time ceases to conduct business in the ordinary course; (ii) The Company files a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; (iii) The Company becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within ninety (90) days of filing; or (iv) The Company notifies the Customer of its intent to cease to offer maintenance and support services or actually ceases to offer maintenance and support services.
(c) Restrictions. In the event the Deposited Materials are released to the Customer, the Customer shall have the right to use the Deposited Materials only for the following purposes: (i) to correct bugs, errors, defects or malfunctions (ii) to modify the Software to comply with regulatory requirements or industry standards; (iii) to add new features, functionalities, or performances and (iv) to perform the maintenance and support services that the Company was to perform under this Agreement, including without limitation the development of Upgrade Releases; provided, however, that release of Deposited Materials to the Customer shall excuse the Company from any further performance of its maintenance and support obligations. Unless otherwise provided in this Agreement, the scope of and restrictions on the rights granted hereunder, and the intellectual property rights of the parties, shall continue to be as set forth in this agreement.
(d) Confidentiality. The escrow agreement (or a separate agreement entered into between the Company and the Customer) shall also include reasonable provisions for maintenance by The Customer of the confidentiality of the Deposited Materials in the event the Deposited Materials are released to the Customer, including but not limited to requirements that (i) access to the source code and documentation related to such source code ("Access") be limited only to those employees or third party contractors or outsourcers of the Customer engaged in operating, maintaining, supporting and updating the Software; (ii) The Customer shall maintain a list of all such individuals to whom The Customer has granted Access and shall provide a copy of such list to the Company upon the Company's request; (iii) all such individuals shall, as a condition of and prior to being granted such Access, execute a non- disclosure agreement containing provisions at least as restrictive as those set forth in this agreement, and the Customer shall maintain such agreements available for inspection and copying by the Company upon reasonable request; and (iv) the Deposited Materials shall be stored in a secure manner.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by and construed in accordance with the laws of the United States. In the event of any dispute between the Parties the Parties shall try to amicably resolve such dispute failing which the Parties shall resolve the dispute as per the provisions under the law. Each Party irrevocably submits to the exclusive jurisdiction of the courts of Delaware, the United States, over any dispute, controversy or claim arising under or in connection with this Agreement. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Customer otherwise agrees to reasonably cooperate with the Company to serve as a reference account upon request.]