The Terms of Service Agreement (together with the documents listed hereafter, the “Agreement”), describe the rights granted by Glarevision S.A. (“Glartek”), a company registered under the laws of Portugal, with the company number 514244127, with the business address Rua da Carvalha, 570, 2400-441 Leiria, Portugal to any person or entity (“Customer”, “you” or “your”) placing an order for or accessing the Glartek Software (defined below). Both Glartek and Customer are referred to hereinafter as a “Party” and collectively as the “Parties” to this Agreement.
The Agreement is compromised of the following:
- This Terms of Service Agreement;
- Order Form (“Order Form”);
- Acceptable Use Policy;
- Support Policy;
- Privacy Policy;
By licensing, registering or logging on the Glartek Software, Customer agrees to be bound by all the Terms of Service stated herein.
Customer represents and warrants that he or she is legally able to enter into binding agreements and is a duly authorized agent of such entity for the purpose of entering into this Agreement and binding such entity in accordance with its terms. He or she represents that the information submitted to Glartek, including all application data are true, accurate, and complete.
1 | PURPOSE
This Agreement is entered into for the sole purpose of allowing Customer to use Glartek products publicly known as Glartek Augmented and Connected Worker Platform (the “Glartek Software”) and accompanying Documentation (collectively, the “System”). Glartek shall deliver and make available to Customer via the Internet or electronic means the System.
2 | FEES
Customer can request for Trial purposes, at no cost, for a Trial Period, or acquire from Glartek a non-exclusive, non-transferable, revocable license for usage of the System, including any modified or enhanced versions thereof provided to the Customer by Glartek. Customer shall pay Glartek the fees specified in the Order Form. Unless otherwise specified in the Order Form, all fees and charges shall be due immediately upon invoicing and in the currency specified in the Order Form. Unless otherwise specified in the Order Form, Glartek shall invoice the respective fee (i) for the Software License at the date of the Order Form, and, if applicable, subsequently at the beginning of each Renewal Term, (ii) for Professional Services (a) upfront or (b) monthly after the performed Professional Services and (iii) for Other Services are agreed in the Order Form.
Glartek reserves the right to immediately charge and invoice during the Initial or Renewal Term any additional usage of Software License, such as, but not limited to, the use of non-licensed features and add-ons or the use by non-licensed users authorized by the Customer, and excess Professional Services time, material, and reasonable travel expenses, when service is provided at a local other than Glartek’s offices.
Unless Professional Services are provided on a fixed-fee basis, as specified in the Order Form, Customer will pay Glartek at the per-day rates set forth in the Order Form (or, if not specified, at Glartek’s then standard rates) for any excess services.
The invoicing shall be made online via an email to the email address provided by the Customer. The Customer shall only be entitled to the delivery of a hard copy invoice by mail if the Customer makes such request to Glartek.
The fees and charges specified in the Order Form do not include any sales, use, consumption, value-added, or any other tax (including applicable withholding tax, which shall be added to the invoiced amount, if applicable). Customer is responsible for the payment of any and all such taxes. Payments should be made by credit card, direct debit, and bank transfer (bank charges shall be borne by the Customer). Customer authorizes Glartek to charge the credit card or request a direct debit payment for all fees and charges specified in the Order Form.
Customer may dispute invoiced amounts and promptly provide Glartek with a notice of the disputed amount along with supporting documentation within 14 (fourteen) calendar days of receipt of invoice, and the parties will cooperate diligently to resolve such dispute in good faith. Amounts not disputed within such fourteen (14) day period will be deemed valid and may not later be disputed.
Any overdue payment, including from disputed fees, shall accrue an interest at the rate provided by applicable law. Glartek may waive interest payments at its sole discretion. If the Customer defaults on the payment of the fees, Glartek shall be entitled to suspend the Services temporarily (“Suspension”). However, Glartek shall warn the Customer of the Suspension reasonably in advance, e.g., via email. The Suspension shall not take place or respectively be rescinded without undue delay once the Customer has made his payment in full. The Customer’s obligation to pay the fees shall continue to be in effect during the Suspension period. In addition, Glartek may terminate the Agreement if the Customer defaults on the payment of the fees and fails to cure the breach within fifteen (15) days of receiving notice from Glartek. Termination is in addition to (and not in lieu of) any other rights and remedies available to Glartek hereunder or at law.
3 | SUPPORT
Glartek has a dedicated Customer Success Team to guarantee the satisfaction of the customers using the Glartek Software and to proactively generate value in long-term. This team will assist with Product Enablement and Knowledge Enablement and will work with the Customer to identify other usage opportunities of the Glartek Software. The Customer Success Team acts as the dedicated Point of Contact of the Customer and liaises with other Glartek departments when needed. In addition, Glartek provides reasonable Technical Support to Customers according to the Support Policy and agreed Service Level Agreement, as more fully described in Glartek’s Support Policy.
4 | LIMITED WARRANTY
Glartek makes the following representations and warranties: (i) there are no liens or other encumbrances on the Glartek Software; (ii) the Glartek Software (in full or as to any component standing individually) do not infringe or violate any intellectual property right, proprietary right or contractual right of any third party, and use by Customer as described in the Documentation shall not infringe or violate any such right (“Non-Infringement Warranty”); (iii) the Glartek Software do not contain any program routine, device, code or instructions (including any code or instructions provided by third parties) or other undisclosed feature, including a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, bug, error, defect or trap door, that is capable of accessing, modifying, deleting, damaging, disabling, deactivating, interfering with, or otherwise harming the Glartek Software, any hardware, data or other electronically stored information, or computer programs or systems; (iv) the Documentation accurately reflects the operation, features and functioning of the Glartek Software, (v) the Glartek Software (a) do not contain any open source material including any libraries or software licensed under the GNU General Public License, the BSD license or any other similar “public,” “open source” or “free” software license agreement or arrangement obligating Customer to disclose or make source or object code available to third parties (“Open Source”) and (b) will not require the use of any Open Source in order to function in its intended fashion; and (vi) Glartek hereby warrants that it has the right to grant the rights and licenses regarding the Glartek Software that arise or are implied hereunder.
Glartek makes no other warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose.
5 | AUTHORIZED ACCESS
Access to and use of password protected or secure areas of the System is restricted to authorized users only. Customer may not share password(s), account information, or access to the System. Customer is responsible for identifying and authenticating all users, for approving access by such users, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. Glartek is not liable for any harm caused by users, including individuals who were not authorized to have access to the System but who were able to gain access because usernames, passwords or accounts were not terminated. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the System.
Customer may not access the System if him/her, or the organization which him/her represent, are a competitor of Glartek. Customer may not access the System for competitive purposes.
6 | USE OF SYSTEM
Customer agrees not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. Glartek reserves the right to remove or disable access to any material that violates the foregoing restrictions. Glartek shall have no liability to Customer in the event that Glartek takes such action. Customer agrees to defend and indemnify Glartek against any claim arising out of a violation of Customer’s obligations under this section.
Glartek may use software tools to audit and otherwise request information from Customer regarding the use of the System. Customer agrees to cooperate with Glartek’s audit and provide reasonable assistance and access to information.
Customer remains solely responsible for regulatory compliance in connection with your use of the System.
7 | LIMITATIONS OF LIABILITY
Glartek will not be liable for damages arising out of or in connection with this Agreement, the performance of the system, or Glartek’s performance of services. Without regard to whether a claim is based on contract or tort, including negligence in no event shall Glartek or its suppliers be liable for any indirect, special, incidental or consequential damages, including, without limitation, damages resulting from loss of profits, data or business arising out of or in connection with this Agreement, even if Glartek has been advised of the possibility of such damages.
8 | PROPRIETARY RIGHTS
Customer acknowledges that Glartek retains all right, title, and interest in the System and in all copies thereof, and no title to the System, or any intellectual property or other rights therein, are transferred to Customer by virtue of this Agreement other than as specified herein. Customer shall not without the express prior written consent of Glartek duplicate, copy of reproduce the System. In the event Glartek authorizes Customer to make copies of the System, Customer shall reproduce Glartek’s copyright and other proprietary rights notices or legends on all copies thereof. Customer agrees not to cause or permit the reverse engineering, reverse assembly, reverse compilation or create derivative works of the Glartek Software, or otherwise attempt to derive source code or defeat, avoid, by-pass, remove or deactivate any software protection mechanism from the Glartek Software.
Customer acknowledges that Glartek does not perform custom development work of the System as part of the Professional Services and that the Deliverables, including but not limited to technology, work product and software product, provided by Glartek in the performance of the Professional Services may include, among other things, implementation, configuration and modifications of the System, training materials and Documentation. Glartek will retain right, title and interest of such Deliverables, including without limitation all Intellectual Property Rights therein and thereto.
9 | CONFIDENTIALITY
From time to time during the Period of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this clause by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this clause caused by any of its representatives.
The Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its representatives to prevent the breach or threatened breach of this clause and to secure its enforcement, in addition to all other remedies available at law.
10 | CONFIDENTIALITY
Glartek agrees to defend Customer from and against any claim or action based on any alleged infringement of any patent, copyright, trade secret or other proprietary right as a result of the use of the System according to the terms and conditions of this Agreement, but Glartek will not indemnify Customer from any costs and/or damages awarded against Customer in any such infringement claim or action or settlement thereof.
Notwithstanding the foregoing, Glartek shall have no liability to Customer if the infringement results from:
- Use of the System in combination with software not provided by Glartek,
- Modifications to the System not made by Glartek, or
- Use of other than a current or a supported release of the System, if such infringement would have been avoided by use of current Glartek release.
The foregoing states the entire liability of Glartek with respect to infringement of any patents, copyrights, trade secrets or other proprietary rights by the System or any part thereof.
11 | TERMINATION
The initial term of the Agreement for Trial purposes shall commence on the effective date in the Order Form and shall continue for thirty (30) days (“Trial Period”). The Trial Period may be extended by mutual agreement of Glartek and Customer in writing. All terms and conditions of this Agreement shall continue during any such extension of the Trial Period. Unless the Customer has notified Glartek in writing prior to the end of the Trial Period that it is terminating the Trial, the initial term of the Agreement shall commence on the effective date in the Order Form and Customer will be liable for the Feed set forth in the Order Form.
Unless otherwise specified in the Order Form, the initial term of the Agreement shall commence on the effective date in the Order Form and shall continue for twelve (12) months (“Initial Term”) and automatically renewed for subsequent periods of twelve (12) months (each a “Renewal Term”), unless either party notifies the other party no less than thirty (30) calendar days prior to the end of the Initial Term or any Renewal Term that the Agreement shall not renew.
Glartek shall be entitled to extraordinarily terminate the Agreement for breach in case of sections 5. (Authorized Access), 6. (Use of the system), 8. (Proprietary Rights) and 9. (Confidentiality).
Notwithstanding the above, termination by the Customer based on non-performance of service in conformity with the Agreement shall only be admissible if Glartek had been given enough opportunities to eliminate the error/shortcoming and has failed to do so or the subsequent performance was unsuccessful. Termination of the Agreement doesn’t entitle Customer to any refund of paid fees nor relieve the Customer of the obligation to pay any fees payable for the period prior to the effective date of termination.
Termination notice, including the notification of non-renewal, must be made in writing email to [email protected].
Upon termination or expiration of the Agreement: (i) the granted License shall end forthwith, and Customer shall delete the Software from its computers and refrain from any further use of the Software; (ii) Customer shall no longer have access to the data stored in the Software. Customer shall be solely responsible for exporting the data – as far as possible – prior to the termination or expiration of the term of the Agreement by means of the Software functions and to store it for further use. Glartek shall not be obligated to any further release of data. Customer’s data that is processed for the purpose of performance of the Agreement shall be deleted in compliance with applicable law, the Agreement and the Data Processing Agreement, unless Glartek is obligated by law to store it. If a deletion is only possible with unreasonable efforts (e.g., in backups), Glartek shall be entitled to retain such data and restrict the further processing.
12 | ASSIGNMENT
Neither party may assign its rights, duties, or obligation under this Agreement without the prior written consent of the other party.
13 | GENERAL
Glartek shall be entitled to amend this Agreement, especially – but not limited to – (i) to reflect changes in Services or in business, e.g (ii) for legal, regulatory or security reasons and/or (iii) to prevent abuse or harm, upon no less than thirty (30) days prior notice to Customer. Unless Customer notifies Glartek in writing of its objection to such amendment within fifteen (15) days of such notice, then the amendment shall be deemed accepted by Customer. If Customer notifies Glartek in writing of its objection to such amendment within fifteen (15) days of notice, the Agreement shall continue under the existing terms without giving effect to such amendment.
Customer authorizes Glartek to display the Customer’s name, logo, and quote on Glartek public marketing collateral, and to publish a whitepaper and press releases describing the use of the System by the Customer. Customer may request the removal of its reference from any public disclosure, in writing to email to [email protected].
Except for Customer’s payment obligations, neither party will be liable for failure to perform or delay in performing any obligation under the Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, epidemic or pandemic, damage, destruction, power outage, telephone outage, internet access provider failure, or any other similar cause beyond its control.
This Agreement and performance hereunder shall be governed by the laws of Portugal without regard to confits of laws. Customer and Glartek hereby agree that the sole jurisdiction and venue for any litigation from or relating to this Agreement shall be a court located in Lisbon, Portugal.
The Parties agree that this Agreement represents the entire understanding with respect to the subject matter and legally supersedes all prior oral or written agreements, statements, representations, negotiations, or promises.
The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. With the exception of an Order Form, any other documents that Customer sends to Glartek that contains terms that different from, in conflict with, or in addition to the terms of the Agreement, are hereby rejected and will be void and of no effect.
If any provision of the Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the rest of the Agreement will remain in full force and effect.
All provisions hereof relating to the proprietary rights, confidentiality and non-disclosure, indemnification, and limitation of liability shall survive the completion or the earlier termination of this Agreement.
The Parties agree that scanned images of signatures are the same as original signatures and that digital images of the Agreement and additional documents shall be as valid as an original.
Version: October 19th, 2023