This Gwenlake Terms of Service (“Agreement”) is entered into by and between Gwenlake SAS (referred to herein as “Gwenlake,” “Company,” “we,” “us,” or “our”) and the Customer (referred to herein as “Customer,” “your,” or “you”), contains the terms and conditions that govern your access to and use of the Services. This Agreement shall take effect upon Customer signing up and agreeing to be bound by the terms herein or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Terms are defined in Section 15.
Provision of Services. Subject to the terms this Agreement, Gwenlake will use commercially reasonable efforts to provide Customer the Services during the Term of this Agreement. Customer and any End Users may access and use the Services in accordance with this Agreement and published Policies, then in effect.
Technical Support. Subject to the terms hereof, Company will provide Customer with reasonable technical support services.
Service Changes. Gwenlake may update, change, discontinue, or deprecate the Services, or change or remove features or functionality of the Services from time to time. If Gwenlake changes the Services in a manner that adversely reduces the functionality of the Services, Gwenlake will inform Customer via the email address associated with the account.
Beta Services. Gwenlake reserves the right to offer features or functionalities that Gwenlake is still testing and evaluating. These features or functionalities will be identified as “Beta Services.” Notwithstanding anything to the contrary in this Agreement, the following terms apply to all Beta Services: (a) you may use or decline to use any Beta Services at your own discretion; (b) Beta Services may not be supported and may be changed at any time without notice to you; (c) Beta Services may not be as reliable or available as Services; and (d) Gwenlake will have no liability arising from our in connection with the use of Beta Services. You may not use the Gwenlake Services if you are a person barred from receiving the Gwenlake Services under the laws of European Union, the United States or other countries, including the country in which you are a resident or from which you use the Gwenlake Services. You affirm that you are over the age of 13, as the Gwenlake Services are not intended for children under 13.
Security. Without limiting the provisions of Sections 4 and 9, Gwenlake will use commercially reasonable technical and organizational security measures to transfer, store, and process Customer Content. These measures are designed to protect the integrity of Customer Content and guard against unauthorized or unlawful access to, use of, and processing of Customer Content.
General Restrictions. Customer and all End Users may not use or access the Services, in any manner or for any purpose, in violation of this Agreement. Customer and End Users may not: (a) resell or sublicense the Services or access credentials; (b) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services; (c) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services; (d) use or access the Service: (i) in any way prohibited by law, regulation, governmental order or decree; (ii) to violate any rights of others; (iii) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Services or any other service, device, data, account or network; (iv) to spam or distribute malware; (v) in any way that could harm or impair the use of the Services; (vi) in any way intended to work around the Service’s technical limitations, recurring fees or usage limits; or (vii) in any application or situation where failure of the Services could lead to the death or serious bodily injury of any person.
Consistent with Section 4, Customer must ensure that all End Users comply with the terms of this Agreement. You agree that if you become aware of any violation of the terms of this Agreement by any End User’s use of the Services, you will immediately terminate that End User’s access and use of the Services. If Gwenlake has reason to believe that you or any End User(s) have breached this Agreement, Gwenlake will have the right (but not the obligation), in our sole discretion and determination, to temporarily suspend Services, pending a determination of your compliance with this Agreement. All rights granted to you in this Agreement are conditional on your continued compliance with this Agreement; if you do not comply with any term or condition of this Agreement, then Gwenlake will have the right, but not the obligation, in Gwenlake’s sole discretion and determination, to immediately terminate this Agreement. Customer may use Gwenlake’s trademarks, strictly in accordance with the Trademark Use Guidelines.
Content Restrictions. You will take steps to ensure that you or any End User does not post content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (b) may create a risk of loss or damage to any other person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is illegal or unlawful; or (e) contains any information or content that you do not have a right to make available under any law or under any contractual or fiduciary relationships.
Third-Party Content. Unless explicitly stated herein, you are responsible for any software, product or service that a third-party licenses, sells or makes available to you that you install or use in conjunction with your Customer Content and/or use of the Services. Your use of that software, product or service is governed by separate terms between you and that third-party; we are not a party to and are not bound by any of those separate terms. You represent and warrant that Customer Content does not and will not violate any third-party rights, including, without limitation, any Intellectual Property Rights. If Customer becomes aware that any Content violates any provision of this Agreement, Customer agrees to remove the applicable part of Customer Content from the Services. You are solely responsible for maintaining licenses and adhering to the license terms of any software you run related to your use of the Services.
Customer Content. Customer is solely responsible for the development, security, content, maintenance and use of Customer Content and all activities and actions occurring under your account(s). Customer responsibilities include, but are not limited to, the following: a) compliance of Customer Content with this Agreement and any Policies; b) compliance with all laws or regulations applicable to Customer Content; c) any loss or other consequence arising from failure to encrypt or backup Customer Content; and d) any claims relating to Customer Content.
End User Action. Customer is solely responsible for any End User’s use of Customer Content and the use of Services. Customer will take all reasonable measures to ensure that all End Users use the Services in compliance with this Agreement and will obtain all consents necessary to administer the Services in compliance therewith. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any End Users, Customer agrees to terminate such End User’s access to Customer Content and use of the Service.
Third-Party Requests. Customer is responsible for appropriately addressing any Third-Party Request relating to Customer Content and any End User’s use of the Services. Customer will diligently seek to obtain information needed to respond to Third-Party Requests and will notify Gwenlake promptly if it cannot obtain such information despite diligent efforts. Gwenlake will make commercially reasonable efforts and to the extent allowed by law and by the terms of this Agreement to: (a) promptly notify Customer of Gwenlake’s receipt of any Third-Party Request; (b) comply with Customer’s commercially reasonable requests regarding its efforts to oppose or address a Third-Party Request; and (c) provide Customer with information, support and/or tools required for Customer to respond per the terms hereof (if Customer is otherwise unable to obtain the information). If Gwenlake is notified of Customer’s failure to promptly respond to any Third-Party Request, Gwenlake may, but will not be obligated to do so.
Unauthorized Access. Customer will take reasonable precautions to prevent unauthorized access to the Services, including, without limitation, utilizing multi-step authentication, protecting passwords and other login credentials. Customer shall notify Gwenlake immediately of any known or suspected unauthorized access of the Services or breach of its security.
Customer Administration of the Services. If applicable, Customer may designate specified End User accounts as “Administrators” through the administrative console. Administrators may have the ability to access and remove Customer Content in or from other End User accounts. Administrators may also have the ability to restrict, or terminate, certain End User access to Services accounts. Gwenlake is not responsible for internal management or administration of the Services. Customer is solely responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators use of the Services complies with this Agreement.
Encryption and Backup. Customer is solely responsible for proper configuration and use of the Services. Customer is solely responsible for maintaining appropriate security, protection, archives and backup of Customer Content, which may include, but is not limited to, the use of encryption technology and implementation of routine backups of Customer Content and changing account passwords.
Ownership of Customer Content. Customer and End Users own all right, title, and interest in and to Customer Content. Except as otherwise specified in this Agreement, Gwenlake obtains no rights from Customer to Customer Content or any related Intellectual Property Rights. Customer consents to our use of Customer Content as may be necessary to provide the Services to Customer and End Users.
Ownership of Services. Gwenlake and our licensors own and retain all right, title and interest in and to the Services and any related software, including, without limitation, all improvements, enhancements, modifications and derivative works thereof (including, without limitation, any related Intellectual Property Rights). This includes any information that we collect and analyze in connection with the Services, such as usage patterns, user feedback and other information, to improve and evolve our products and services. Your rights to use the Services are limited to those expressly granted in this Agreement. No other rights with respect to your Services, any related software, or any related Intellectual Property Rights are implied.
Gwenlake Native App. Gwenlake grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to download and use the Gwenlake Native App strictly to access and use the Services solely in accordance with this Agreement. Customer obtains no additional rights regarding the Gwenlake Native App, including any related Intellectual Property Rights.
Microsoft Software. In conjunction with the Services, you may select to be provided and allowed to use specific operating system software (including related documentation) owned and developed by Microsoft (“Microsoft Software”). If you opt to purchase Services with Microsoft Software, Microsoft requires, and you hereby agree, to the following additional terms and conditions: you may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software; you may not transfer or use the Microsoft Software outside the Services; the Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services; Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services; you may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law; and Microsoft is not responsible for providing any support in connection with the Services. Microsoft is an intended third-party beneficiary of provisions related to the used of Microsoft Software, with the right to enforce such provisions.
If Customer has chosen to purchase Services from the Company that, do not provide a Microsoft Software, as the operating system of the Services provided, and you have chosen to bring your own Microsoft license (“BYOL”), you represent that you have determined that your use of the BYOL will comply with the applicable Microsoft licensing requirements. Usage of the Services in violation of your agreement(s) with Microsoft is not authorized or permitted.
Fees and Payment. Fees for Services are calculated monthly by Gwenlake based upon Customer account usage and subscriptions. Customer will be charged and must pay all calculated fees and charges monthly. Gwenlake reserves the option to bill customer more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. Monthly calculations are based upon the pricing and charges for Customer’s account use of the Services as listed on the Site, including without limitation, hourly metering. All amounts payable by you under this Agreement will be paid to Gwenlake without deductions or withholdings and without setoff or counterclaim. For any new Service or new feature of a Service, fees will be effective when we post updated fees and charges on the Site, unless we expressly state otherwise in a notice. Gwenlake may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. Unpaid amounts are subject to a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer’s failure to pay fees in a timely manner as per the terms of this Agreement will be deemed a material breach of this Agreement, which may result in immediate termination of the Services by Company in Company’s sole discretion and determination.
Taxes. Gwenlake and Customer will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to all transactions and payments under this Agreement. All fees for Services calculated by Gwenlake and payable by you are exclusive of Taxes. Notwithstanding the foregoing, Gwenlake may charge and Customer agrees to pay any Taxes that we are legally required or authorized to collect from you, unless Customer provides us with a timely and applicable tax exemption certificate by the appropriate taxing authority. Customer will provide sufficient information upon request that is reasonably necessary for Gwenlake to determine if we are obligated to collect Taxes from you. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement as calculated by Gwenlake. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
Generally. We may suspend Customer or any End User’s right to access or use any portion of all of the Services immediately upon notice to you if we determine Customer or any End User’s use of the Services: (a) may subject us, our affiliates, or any third-party to liability; (b) may be fraudulent; (c) is in breach of this Agreement; d) breaches payment obligations; or e) poses a security risk to the Services.
Security Emergencies. Notwithstanding anything to the contrary in this Agreement, Gwenlake may immediately suspend use of the Services if there is a Security Emergency. Gwenlake will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
Effect of Suspension. If Gwenlake suspends Customer’s right to access or use any portion or all of the Services: (a) Customer remains liable for all Fees and charges incurred through the date of suspension; (b) Gwenlake will not erase any Customer Content as a result of suspension.
Term. Subject to the termination terms as provided below, this Agreement will commence upon the Effective Dates and will remain in effect until terminated under this Section 8.
Termination Generally. Upon any termination of this Agreement, Company will make all Customer Content available to Customer for electronic retrieval for a period of fifteen (15) days, but thereafter Company may, but is not obligated to, delete stored Customer Content. 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, ownership of Services and limitations of liability. Customer will be responsible for proportional Fees up to and including the last day on which the Services are provided and any advanced Fee will be returned, prorated through last day of Services, to Customer with thirty (30) days of termination.
Voluntary Customer Termination. Customer may terminate this Agreement for any reason by providing Gwenlake notice and closing your account for all Services for which we provide an account closing option.
Termination for Cause. Either party may terminate this Agreement for cause upon thirty (30) days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the thirty (30) day termination notice period.
Immediate Termination for Cause. Gwenlake may terminate this Agreement immediately upon notice to Customer if: (a) Customer or any End User accounts are suspended pursuant to this Agreement; (b) by continuing to provide Services to you, Gwenlake could experience a substantial economic or technical burden or material security risk, or (c) required by law.
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, GWENLAKE AND ITS AFFILIATES AND LICENSORS MAKE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT OR THAT ANY CONTENT, OR THAT CUSTOMER CONTENT OR THIRD-PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
THE SERVICES ARE DESIGNED TO FACILITATE COMPLIANCE WITH VARIOUS REGULATORY REQUIREMENTS THAT MAY BE APPLICABLE TO YOU. HOWEVER, YOU ARE RESPONSIBLE FOR UNDERSTANDING THE LEGAL AND REGULATORY REQUIREMENTS APPLICABLE TO YOU AND YOUR USE OF THE SERVICES, AND FOR SELECTING AND USING THOSE SERVICES IN A MANNER THAT COMPLIES WITH YOUR OBLIGATIONS UNDER THE AGREEMENT AND THE APPLICABLE LEGAL AND REGULATORY REQUIREMENTS.
Process. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party’s request for assistance in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.
Generally. Customer will indemnify, defend, and hold harmless Gwenlake, our affiliates and licensors, and each of their respective employees, agents, officers, directors, and representatives from and against all liabilities, damages, losses and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third-party against Gwenlake and its affiliates in connection with: (a) Customer Content; (b) Customer’s or any End User’s use of the Services in violation of this Agreement or violation of applicable law by Customer or any End User; (c) the combination of Customer Content with third-party software, applications, content or processes, including any claim involving claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content stored using the Services through Customer’s account, or (d) a dispute between Customer and any End User.
Alleged Intellectual Property Infringement. Customer will defend Gwenlake, our affiliates, and their respective employees, officers, and directors from and against any third-party claim alleging that any Customer Content infringes or misappropriates the intellectual property rights of that third-party.
Gwenlake will defend Customer against any third-party allegations that Gwenlake’s technology used to provide the Services to the Customer infringes or misappropriates that third-party’s intellectual property rights. In no event will Gwenlake have any obligations under this section arising from: (a) Services in a modified form or in combination with materials not furnished by Gwenlake and (b) any content, information, or data provided by Customer, End Users, or other third-parties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GWENLAKE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SERVICE LEVEL AGREEMENTS, IF ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 10, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAID GWENLAKE UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.
Gwenlake may revise this Agreement (including any Policies) from time to time and the most current version will be made available on the Company’s website. If deemed by Gwenlake, in Gwenlake’s sole discretion, that a modification is materially adverse to Customer, we will notify Customer. The modified terms will become effective upon posting to Company website or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you acknowledge and agree to be bound by the modified terms. We last modified this Agreement on the date listed at the end of this Agreement.
Scope of Protection. The Confidential Information of either party may be used by the other party solely to exercise its rights and perform its obligations under this Agreement or as otherwise permitted herein. Each party will only disclose Confidential Information of the other party to the employees, service providers or contractors of the recipient party who need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each party’s duty under this Agreement. Both the Company and the Customer will diligently protect the confidentiality of the other party’s Confidential Information.
Exceptions. The above protections of Confidential Information will not apply if the recipient can show by written records that the information: (a) was already rightfully known to the recipient at the time of disclosure; (b) was disclosed to the recipient by a third-party who had the right to make the disclosure without any confidentiality restrictions; (c) is, or, through no fault of the recipient, has become generally available to the public; or (d) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information. The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange. The recipient will provide the other party notice, when practicable.
No Third-Party Beneficiaries. Unless expressly stated herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. 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.
Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
Import and Export Compliance. If applicable, Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
US Government Regulations. For purposes of sales to government entities in the U.S., as defined in FAR section 2.101, the Services and related documentation are deemed to be “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Assignment. Customer may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. Gwenlake may not assign this Agreement without providing notice to Customer, except that Gwenlake may assign this Agreement or any rights or obligations under this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice.
No Waiver. The Company will not be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by a Company authorized explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Governing Law. The laws of France (Tribunal de Rennes) shall govern this Agreement and any dispute that may arise between the parties, without reference to conflicts of laws principals.
Dispute Resolution. The parties agree to exercise reasonable efforts, to resolve any dispute in good faith. If a dispute is not resolved within thirty (30) days of notice, either party may resort to a formal proceeding. Without limiting the foregoing and subject to the exceptions below, the parties agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration. The Tribunal de Rennes (France) will administer the arbitration under its Commercial Arbitration Rules. Customer may only resolve disputes with Gwenlake on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
Notices. Notice may be sent to the Customer to the email address associated with Customer’s account and to the Company at [email protected] or as otherwise provided in writing by either party to the other. Unless otherwise stated under this Agreement, all notices under this Agreement must be in writing and will be deemed to have been duly given when: (a) received, if personally delivered; (b) the day after it is sent, if sent by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
Headings. The paragraph and section headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
Signatures. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute one and the same instrument. This Agreement and any counterpart original may be executed and delivered by facsimile transmission. The facsimile signature shall be valid and acceptable for all purposes as if it were an original.
“Account Information” means information provided by you in connection with your customer account setup and/or administration, including without limitation, contact information, usernames, email addresses and billing information.
“Confidential Information” means all information disclosed by one party to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (a) for you, all Customer Content and information required for account activation; (b) for Gwenlake, unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data center designs and other proprietary information or technology; and (c) for both parties, information that is marked or otherwise designated as confidential or proprietary. Information that is independently developed by either party, respectively, without reference to the other respective party’s Confidential Information, or that becomes available to either party, other than through breach of the Agreement or applicable law, shall not be Confidential Information of the other party.
“Customer Content” means any and all applications, software, services, files, information, data or other content, transferred, stored, download/uploaded to or published or displayed directly or indirectly related to use of the Services by Customer and End Users and any computational results that Customer or any End User derive from the foregoing through use of the Services. Customer Content does not include Account Information.
“End User” means any individual, affiliate, employee, contractor, agent or entity that: (a) uses or accesses Customer Content; or (b) otherwise accesses or uses the Services under your account.
“Fees” means the service charge(s) established by the Company for the Services.
“Intellectual Property Rights” means all worldwide Intellectual Property Rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.
“Security Emergency” means a credible threat to the security of the Services from (a) use of the Services that do or could disrupt the Services, other Customers’ use of the Services, or the infrastructure used to provide the Services and (b) unauthorized third-party access to the Services.
“Services” means each of the cloud and web-based services or compute resources provided by Gwenlake. These Services are accessed through authorized account(s) using login credentials through www.gwenlake.com or the Gwenlake App. Services do not include Third-Party Content.
“Taxes” means any duties, customs fees, or taxes (other than Gwenlake’s income tax) associated with the purchase of the Services, including without limitation VAT, excise taxes, sales and transactions taxes, and any related penalties or interest.
“Third-Party Content” means software (including machine images), data, text, audio, video, or images made available to you by any third-party or in conjunction with the Services.
“Third-Party Requests.” means any request from a third-party relating to Customer’s Use of the Services in conjunction with third-party software, product(s) or service(s), including without limitation, requests for records relating to Customer’s or End User’s use of Services, search warrants, court orders, or subpoenas.
“Trademark Use Guidelines” means any guidelines published and located at “www.gwenlake.com,” as may be updated by us from time to time.
Modified on May 30, 2023.