Effective Date: (06-24-2014)
Glencore Marketing Marketing is the leading provider of business and consumer information products, database marketing services, data processing services and sales and marketing solutions, including, but not limited to email marketing and social media marketing. Content is the essential ingredient in every marketing program, and Glencore Marketing Marketing has the most comprehensive and cleanest data in the industry, and is the only company to own a proprietary database of U.S. consumers U.S. businesses, including International feeds and data for consumers and businesses outside the United States. The Glencore Marketing Marketing database powers the directory services of the top Internet traffic-generating sites. Our customers use Glencore Marketing Marketing’s products and services to find new customers, grow their sales, and for other direct telemarketing, customer analysis and credit reference purposes.
Glencore Marketing Marketing recognizes the privacy interests of the businesses and consumers on which it collects information and has implemented the most comprehensive and formal data protection policies which balance privacy expectations with the legitimate business need of our customers.
As a global leader in helping clients manage and disseminate consumer information, Glencore Marketing Marketing has understood the importance of fair information practices and consumer privacy. Glencore Marketing Marketing helps clients improve relationships with consumers by making individual recognition possible across the entire enterprise spectrum, including over the Internet, over the phone, through email, and in retail outlets. The growth of e-commerce and remote transactions means a company’s ability to know its audience also involves honoring individual preferences regarding privacy and security. Today, marketers are required by good corporate citizenship practices, and in some cases by legislation, to put procedures in place that enable individuals to control how, when and for what reasons companies communicate with them. Glencore Marketing Marketing’s proprietary intelligence tools and advanced encryption methods ensure security.
These procedures also enable individuals to control how companies share data about them with others. With customer data often stored in different systems across a company and with potentially different spellings of names and addresses, it is difficult for most companies to establish or honor their commitments to consumers about how data about them will be used. Glencore Marketing Marketing is at the forefront of consolidating and managing the world’s largest databases.
Glencore Marketing Marketing provides the critical services, products and technology that companies need to honor customer preferences and maintain good customer relationships. Glencore Marketing Marketing and its associates, subsidiaries, and partners worldwide pledge to conduct our business according to the following:
Glencore Marketing uses encrypted security systems and procedures to safeguard and protect the information, ensuring the data is accessed only by authorized individuals for legitimate business needs. Glencore Marketing will not transmit or sell the compiled information to third parties without obtaining a written or electronic agreement that defines the rights and responsibilities with respect to the data. Furthermore, Glencore Marketing will review our customers use of the data to ensure sensitive data is being handled in accordance with required protections, and that this information is not used for deceptive, misleading, distasteful, or suspicious purposes. Our data will not be made available to any unauthorized person(s) and or businesses.
Glencore Marketing recognizes that individuals should be informed as to how information about them is used and should have choices about the dissemination of that information.
Glencore Marketing is an active member of local trade associations in the countries where we conduct business and conforms to all self-regulatory guidelines of these associations. Glencore Marketing also actively monitors local laws in order to be compliant with any regulatory requirement. Glencore Marketing complies with all applicable federal and state laws concerning data privacy, as well as best practices and procedures and guidelines established by industry groups of which the company is a contributing member, including the Direct Marketing Association (DMA) and others. Glencore Marketing maintains agreements with its customers containing strict controls on the data as required by the applicable laws and industry standards. The company also encourages its customers that are not members of the DMA or other applicable industry groups to comply with the standards and guidelines established by those groups.
Glencore Marketing maintains the strictest quality control procedures to ensure our information is as accurate as possible. Our clean data process and HyClean method is licensed to Global Government agencies throughout the world, including every country in the Western Hemisphere except Cuba.
Consumer and Business Value:
Glencore Marketing offers services and information products that create and build value — including lower prices, greater access, better security, timeliness and diversity – for consumers and businesses around the world.
Glencore Marketing pledges to conduct our relationships with clients and other information providers in an ethical and professional manner. We have been instrumental in developing and shaping how laws are written here in the U.S. and globally to always protect the information we are able to gather.
Glencore Marketing is committed to educating our clients, our associates and the industry about the issues, guidelines and laws surrounding individual consumer privacy issues.
Consumer and Business Value:
Glencore Marketing offers services and information products that create and build value — including lower prices, greater access, better security, timeliness and diversity – for consumers and businesses around the world.
“Glencore Marketing” is defined as the Glencore Marketing, “personal data” as data that identifies living individuals, “business prospect” as a business in contact with but does not have an established relationship with Glencore Marketing (or representative of a business) and the term “business client” as a business with which Glencore Marketing does have an established relationship (or representative of a business).
Information Collection and Hygiene:
Glencore Marketing collects personal data, such as name, addresses, emails, telephone numbers, transactional data, lifestyle and demographic data both online and offline through questionnaires, promotions, our partners, public sources, commercially available databases and our websites. Personal data may be kept in its identifiable form, or in an aggregated meta form (so that individuals cannot be identified), for the purposes listed below.
Information Disclosures and Uses:
Glencore Marketing, the Glencore Marketing group of companies, and our partners and business clients (where permitted by Glencore Marketing and its subsidiaries) may use this personal data:
· to undertake research and analysis,
· to market their products and services,
· for product development and testing,
· for identity validation and fraud reduction,
· support client relationship,
· for work planning, management and strategic decision making, and
· for data hygiene, data integration, update and validation of files.
All personal data that Glencore Marketing collects are used in accordance with the Data Protection Act 1998. When personal data is collected from people who voluntarily complete our questionnaires, the personal data are also used in accordance with the use and disclosure statements on the questionnaires.
Personal data used in Glencore Marketing’s data products and services may be passed to and used by members of the Glencore Marketing group of companies worldwide, after obtaining appropriate permissions where applicable and allowed. We will only pass personal data outside this group to our contracted suppliers that process personal data on our behalf and to our clients and their subcontractors or subsidiaries. When we do so, we ensure that appropriate contractual safeguards are put in place and that appropriate encryption. These parties may be located in the United States or abroad. Glencore Marketing may also disclose personal data as required by law and to comply with legal process.
Data Subjects’ Rights:
Individuals may access or correct their personal data, or withdraw their consent at any time by contacting us or by refusing technologies such as cookies. This must be done by the individual themselves and we may require proof of the individual requesting access for identification and other personal details authenticating verification.
Individuals wishing to inquire about our policies, to access or correct their personal data, or withdraw consent should contact Glencore Marketing by faxing to 267.618.9460.
Other Important Information:
Glencore Marketing has notified its processing activities with the Information Commissioner We have implemented measures designed to ensure compliance with the Data Protection Act 1998, the Telecommunications Act 2003 and other applicable legislation as amended from time to time.
At all sites owned by Glencore Marketing where technologies such as “cookies” are used, web-browsers can be set to notify individuals when a cookie is received. This will give individuals the chance to choose whether to accept it or not.
Cookies and other data collection technologies:
·help you navigate our website
·facilitate the sign up and login process for our services
·personalize your experience
·analyze which pages our site visitors visit
·provide website feature such as social sharing widgets and videos
·measure advertising and promotional effectiveness
·accesses which areas of our site you visit to remarket to you after you leave our site
We work with a third party to track your activities on our web site to improve our marketing efforts and provide you advertising based on your visit.
Please note that some cookies may be placed by a third party service provider who performs some of these functions for us.
Information Automatically Collected By Our Site:
As is true of most Websites, we gather Web server log file information automatically such as your IP address, browser type, referring/exit pages, and operating system. We use this information to administer our website, understand how visitors navigate through our Site and to enhance your experience while using our Site.
Other Web Sites:
Transfer of Data Assets:
As Glencore Marketing develops its business, there may be a change of control of Glencore Marketing or divisions, subsidiaries, affiliates or portions of Glencore Marketing. In this situation, personal data is typically considered a transferable asset. Also, in the event that Glencore Marketing or a part of its divisions, affiliates or subsidiaries are purchased, personal data will be one of the transferred assets.
Privacy Statement Regarding Customer and Online User Information:
The Privacy Statement Regarding Customer and Online User Information applies to Glencore Marketing and its worldwide corporate affiliates (we or our), but not to those Glencore Marketing corporate affiliates that have published their own privacy and security statements. This privacy statement also does not apply to the websites of our business partners or to any other third parties, even if their websites are linked to our website. We recommend you review the privacy statements of the other parties with whom you interact.
This privacy statement governs personal information we collect from our customers and online from our website users (you), through Glencore Marketing products, services, software, websites, contacts or our relationship with you.
For the purposes of this privacy statement, corporate affiliates means any entity or joint venture that is wholly or partially owned or controlled by Glencore Marketing Business partners means any subcontractor, vendor or other entity with whom we have an ongoing business relationship to provide products, services or information. Personal information means information that identifies you, such as your name, telephone number and email address.
Information We Collect:
We may ask you to provide personal information when you:
• Use our website;
• Request quotes, services, support or information;
• Place orders for products or services;
• Apply for credit card or financing;
• Participate in surveys, sweepstakes or other promotional activities;
• Subscribe to newsletters, promotional emails or other materials;
• Apply for a job, submit your resume/CV or create a candidate profile; or
• Contact us
Information we may request includes your email address, name, home address and telephone number. If you make a purchase, we may ask for your credit card number and billing information. We may also ask for your Social Security number and other data to process your credit or financing request. Job applicants may be requested to provide information such as educational background, employment experience and job interest. We may also collect demographic information, such as your business or company information, age, gender, interests, preferences and favorites. Forms that you may fill in will indicate whether information requested is mandatory or voluntary.
We may collect information about your visits to our websites, including the pages you view, the links and ads you click, search terms you enter, and other actions you take in connection with the Glencore Marketing websites and services. We may also collect certain information from the browser you used to come to our website, such as your Internet Protocol (IP) address, browser type and language, access times, the Uniform Resource Locator (URL) of the website that referred you to our website and to which URL you browse away from our site if you click on a link on our site.
In order to offer you a more consistent and personalized experience in your interactions with Glencore Marketing, information collected through one source may be combined with information obtained through other Glencore Marketing resources. We may also supplement the information we collect with information obtained from other parties.
Some Glencore Marketing services may be co-branded and offered in conjunction with another company. If you register for or use such services, both Glencore Marketing and the other company may receive information collected in conjunction with the co-branded services, and may use the information according to each companys privacy statement and other agreements with you.
How We Use Personal Information:
Glencore Marketing uses your personal information to:
·Deliver the services and support, or carry out, the transactions you have requested;
·Send communications to you, such as product safety information, your transactions status (for example, order confirmations), information about products and services available from Glencore Marketing and its corporate affiliates, promotional offers and surveys;
·Customize, analyze and improve our products, services (including the content and advertisements on our website), technologies, communications and relationship with you;
·Enforce our conditions of sale, website terms and/or separate contracts (if applicable) with you;
·Prevent fraud and other prohibited or illegal activities;
·Protect the security or integrity of the website, our business, or our products or services; or
·Otherwise, as disclosed to you at the point of collection.
Personal information collected may be stored and processed in the United States or any other country in which Glencore Marketing or its corporate affiliates, subsidiaries or agents maintain facilities, and by using Glencore Marketing products and services (including our website), you consent to any such transfer of information outside of your country.
Glencore Marketing TERMS OF SERVICE
These Glencore Marketing Terms of Service (this Agreement) are entered into by Glencore Marketing. (Glencore Marketing) and the entity executing this Agreement (You). This Agreement governs Your use of the standard Glencore Marketing Purchase Order. BY CLICKING THE I ACCEPT BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE; BY FAXING OR EMAILING OR BY TELEPHONE YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:
Account refers to the billing account for the Service. All Profiles linked to a single Property will have their Hits aggregated before determining the charge for the Service for that Property.
Confidential Information includes any proprietary data and any other information disclosed by one party to the other in writing and marked confidential or disclosed orally and, within five business days, reduced to writing and marked confidential. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving partys possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
Documentation means any accompanying documentation made available to You by Glencore Marketing for use with the Processing Software, including any documentation available online.
2. Fees and Service.
Subject to Section 15, the Service is provided with charge and is not refundable. All sales are final as when we take your payment information the phase of licensing and acquiring the data and information you are requesting will be considered licensed and thus are binding. Glencore Marketing may change its fees and payment policies for the Service from time to time including the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Glencore Marketing or its wholly-owned subsidiaries by third party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of those changes. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys fees) incurred by Glencore Marketing will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your account and previous commitments and orders.
3. Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing Glencore Marketing with current, complete and accurate information as prompted by the registration form, including Your e-mail address. Glencore Marketings (or its wholly-owned subsidiaries) support staff may, from time to time, log in to the Service under Your customer password, if one exists, in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. Nonexclusive License.
Subject to the terms and conditions of this Agreement, (a) Glencore Marketing grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use solely as necessary for You to use the Service on Your Properties or Third Partys Properties. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, Data or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software of Data, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software or Data, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or Data or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software or the Data; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, Service, Data and Reports.
Neither party will use or disclose the other partys Confidential Information without the others prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide fax certification of such to 267.295.1083
6. Information Rights and Publicity.
To the extent permitted by applicable law, You will indemnify, hold harmless and defend Glencore Marketing and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against Glencore Marketing or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys fees and other litigation expenses) incurred by Glencore Marketing or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service or Data, (iii) Your violations of applicable laws, rules or regulations in connection with the Service or Data, (iv) any representations and warranties made by You concerning any aspect of the Service or Data, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service or Data, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. Glencore Marketing will provide You with written notice of any claim, suit or action from which You must indemnify Glencore Marketing. You will cooperate as fully as reasonably required in the defense of any claim. Glencore Marketing reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. Third Parties.
If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by Glencore Marketing to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) Glencore Marketing may share with the Third Party any Customer Data that is specific to the Third Partys Properties, and (c) You will not disclose Third Partys Customer Data to any other party without the Third Partys consent.
10. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, Glencore Marketing MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Glencore Marketing WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE Glencore Marketing OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. Glencore MarketingS (AND ITS WHOLLY OWNED SUBSIDIARIES TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $25 (USD).
12. Proprietary Rights Notice.
The Service or Data, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Glencore Marketing (and its wholly owned subsidiaries). All rights in and to the Software and Data not expressly granted to You in this Agreement are reserved and retained by Glencore Marketing and its licensors without restriction, including, Glencore Marketings (and its wholly owned subsidiaries) right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service, Data, or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or Data or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Glencore Marketing; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Glencore Marketing (or its wholly owned subsidiaries) other than in the name of Glencore Marketing (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
13. U.S. Government Rights.
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Governments rights in the Software or Data, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
14. Term and Termination.
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Glencore Marketing will stop providing, and You will stop accessing the Service or Data; and You will delete all copies of the Service and Data from all Properties and certify thereto by faxing to Glencore Marketing within 3 business days of such termination at 267.295.1083. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service or Data rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full.
15. Modifications to Terms of Service and Other Policies.
Glencore Marketing may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service or Data. You should look at the terms regularly. Glencore Marketing will post notice of modifications to these terms or policies referenced in these terms at the applicable URL for such policies. If You do not agree to the modified terms for the Service, You should not go into agreement with your request. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Glencore Marketing, (ii) You accept that any modified or updated terms that may appear on a Purchase order are considered null and void unless signed by an authorized representative of Glencore Marketing or (iii) You continue to use the Service or Data after Glencore Marketing has posted updates to the Agreement or to any policy governing the Service. Any requested revision of Service or Data requested by You will be considered binding to paying 75 percent of your original contracted amount within the same year of your P/O Date plus the additional cost of the Data and Service.
16. Miscellaneous, Applicable Law and Venue.
Glencore Marketing will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and Glencore Marketing concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of South Dakota without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and South Dakota law, rules, and regulations, South Dakota law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in South Dakota. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to Glencore Marketing must be sent to: 267.295.1083, with a copy to Legal Department, via fax. You may not assign or otherwise transfer any of Your rights in this Agreement without Glencore Marketings prior written consent, and any such attempt is void. The relationship between Glencore Marketing and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 16.
Commercial Terms of Sale:
Unless otherwise agreed to by Glencore Marketing in writing, the Commercial Terms of Sale apply to direct commercial purchasers (including Small, Medium and Large Business, and Government and Public sector customers) of Glencore Marketing data, hardware, software and services and commercial end-users who purchase through a reseller. By placing your order, you accept and are bound to the Commercial Terms of Sale and all other terms herein.
1. Your Relationship with Glencore Marketing.
A. Introduction. Glencore Marketings sale of Products, Software, and Services as well as its performance of Services and your use of the Software are subject to the terms of this agreement between you (you or Customer) and Glencore Marketing (the Agreement). Glencore Marketing means Glencore Marketing, on behalf of itself and its suppliers and licensors, or the entity identified on your order confirmation, invoice or other form of purchase document entered into by you at the time you purchased the Products, Software or Services. Customer shall include any of your affiliates that places a Glencore Marketing order, and Glencore Marketing shall include any Glencore Marketing affiliates with which such an order is placed. Purchases of Products, Software or Services under this Agreement shall be solely for Customers own internal use and not for resale purposes. In instances where Customer purchases through a reseller or distributor, final prices and terms and conditions of sale will be as agreed between Customer and the third party from which Customer makes such purchases; however, the terms set forth herein are applicable to your use of Glencore Marketing Software, Glencore Marketing Data and the performance of Glencore Marketing Services.
B. Definitions. Products means Data and any other products provided hereunder. Services means any and all services provided by Glencore Marketing as described in one or more Service Agreements. Software means any software, data, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Glencore Marketing to you. Software includes software locally installed on your systems and software accessed by you through the internet or other remote means (such as websites, portals and cloud-based solutions), including but not limited to any files of data that are emailed or obtained by you. Deliverables means the tangible and intangible materials, including reports, data, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Glencore Marketing or its suppliers, licensors or subcontractors in the course of performing the Services. Materials means all content and other items included with or as part of the Products, Services, Software, Data or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds and software. Third-Party Products means any non-Glencore Marketing-branded products, software, data or services.
C. Additional Agreements. This Agreement, together with the Service Agreements (as defined below), form a legally binding contract between you and Glencore Marketing in relation to your purchase and use of Products, Data, and Software, and Glencore Marketings performance of Services. In the event of a conflict between these agreements.
D. Quotes, Ordering and Payment.
I. Payment Terms; Orders; Quotes; Interest. Your order is subject to acceptance or cancellation by Glencore Marketing, in Glencore Marketings sole discretion. Terms of payment are within Glencore Marketings sole discretion, and unless otherwise agreed to by Glencore Marketing, payment must be received by Glencore Marketing prior to Glencore Marketings acceptance of an order. Each accepted order will be interpreted as a single Agreement, independent of any other orders. Payment for Products, Software, Data and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method unless credit terms have been agreed to by Glencore Marketing. Payment to Glencore Marketing in respect of Products, Software, Data and Services, as applicable, shall be made to the account indicated by Glencore Marketing (as may be amended from time to time). Orders for Third-Party Products are subject to availability and are cancellable by Glencore Marketing. Orders for Third-Party Products are noncancellable by Customer. If Customer purchases a multiyear, multi use, Software or Data license and related support and/or maintenance, and Glencore Marketing and the Customer (and, if applicable, the third-party licensor of the software) will not agree to annualize the Customers purchase over the term of the license, Customer shall make all annual payments in full and such purchase is noncancellable over the term of the license. Timely payment of the price and all charges is of the essence. It is the responsibility of Customer to ensure payments are authorized and approved on time to ensure receipt of payment no later than the due date; in no case shall Glencore Marketing be responsible for ensuring such authorization or approval. Any assignment by Customer of its purchase order to a third-party financing company (other than Glencore Marketing) must be approved in advance in writing by Glencore Marketing, and in no case shall any such approval excuse Customer from its obligations hereunder. Glencore Marketing reserves the right to charge you a late penalty of 29% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days; thereafter, based on your current outstanding balance. In addition, Glencore Marketing, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all Services and refuse additional orders for Products or Software from Customer until Glencore Marketings receipt of all overdue amounts. Glencore Marketing shall have no liability to Customer for any such suspension or termination of services or for its refusal of additional orders. Glencore Marketing further reserves the right to seek collection of all overdue amounts (including by referral to third party collectors), plus all reasonable legal fees (including reasonable attorneys fees) and costs associated with such collection. Customer shall place all orders in the country where the Products and Software and Data are to be shipped or emailed and where Services are to be performed, and payment of the corresponding price and costs shall be made in the currency identified by Glencore Marketing in its invoice. Additional charges will apply if Customer requests Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing and statements. Glencore Marketing reserves the right to change the method of delivery of all documentation, and any additional changes requested by Customer may be subject to additional charges.
II. Invoices. Invoices are due and payable within the time period noted on your purchase order, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by Glencore Marketing, such approval may be revoked without further notice from Glencore Marketing. Glencore Marketing may invoice parts of an order separately or may invoice purchases of the Products, Software, Data and Services in one invoice to Customer. Unless you and Glencore Marketing have agreed to a different discount structure, Glencore Marketings standard pricing policy for Glencore Marketing-branded systems that include Products, Software, Data, and Services in one discounted price, allocates the discount off list price applicable to the Services portion of the system to be equal to the overall percentage discount off of the list price of the entire system. Glencore Marketing is not responsible for pricing, typographical or other errors in any offer, and reserves the right to cancel orders arising from such errors. Customer agrees that all invoices shall be deemed accurate unless Customer advises Glencore Marketing by fax of a bona fide, material error within one (1) day of the date of such invoice. In the event that Customer advises Glencore Marketing of a material error, (i) payment of any amounts corrected or modified by Glencore Marketing in writing shall be due within ninety (90) days of such correction, and (ii) all other amounts shall be paid by Customer by the invoice due date. In the event Customer withholds payment of any invoiced amounts upon an assertion by Customer that such amounts are erroneous, and Glencore Marketing subsequently concludes that such invoiced amounts are accurate, Customer shall pay interest on such amounts as described above from the due date for such amounts until Glencore Marketings receipt of those amounts. In no case shall Customer be entitled to offset, defer or deduct any invoiced amounts that Glencore Marketing determines are not erroneous following the notification process set forth above.
III. Shipping Charges; Title; Risk of Loss. Taxes, shipping, fulfillment and handling charges are not included in Product prices unless expressly indicated at the time of sale.
IV. Taxes. Unless you provide Glencore Marketing with a valid and accurate tax-exemption certificate applicable to your Product purchase and ship-to location, you are responsible for sales tax and any other taxes or governmental fees associated with your order. Customer may qualify for tax exemptions from time to time in which case Glencore Marketing requests that Customer provide it with a valid certificate of exemption or other appropriate documentary proof of exemption. The charges stated in the order or any invoice shall be inclusive of all duties, levies or any similar charges and shall exclude VAT or equivalent sales or use tax. Unless otherwise specified in writing by Glencore Marketing, Customer shall pay all freight, insurance and taxes (including but not limited to import or export duties, sales, use, value add and excise taxes). Glencore Marketing shall provide Customer with a valid invoice in accordance with VAT or other applicable law. In the event that Customer is required by law to make a withholding or deduction in respect of the price payable to Glencore Marketing, Customer will make the relevant payments to Glencore Marketing net of the required withholding or deduction. Customer will supply to Glencore Marketing evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of Glencore Marketing, that Customer has accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to Glencore Marketing within 5 days of remittance to the applicable tax authority, Glencore Marketing will impose a penalty payment on Customer, and Customer will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
V. Prices. The prices charged for Products, Software, Data, and Services purchased under this Agreement shall be the amounts set forth on Glencore Marketings website or other quotation or as provided by the applicable invoice or Service Agreements relating to such Software or Services or Data. Quoted prices will remain in effect only until the expiration date of the quote or Glencore Marketings acceptance of your order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors.
VI. Changed or Discontinued Products, Software or Services. Glencore Marketings policy is one of ongoing update and revision. Glencore Marketing may revise or discontinue Product, Software or Services or Data offerings at any time without prior notice to Customer.
VII. Returns and Exchanges. Glencore Marketing’s Data Products are final upon order request and non-cancellable once payment has been processed. Glencore Marketing will not be responsible for any loss, damage, or modification of a Product or Data, or processing of a Product for disposal or resale.
2. Service Agreements.
Glencore Marketing may provide Services, Software or Deliverables to you in accordance with one or more Service Agreements.Service Agreements are service contracts, including Service Descriptions
3. Term; Auto-Renewal; Termination.
A. Term; Auto-Renewal. This Agreement commences on the date you place your order and continues until all Services and Software licenses and applicable Product warranties have expired or been terminated. Each Service and license to Software or Data will continue for the term stated in the Service Agreement or the Software license, unless otherwise terminated. Glencore Marketing may, at its option, propose to renew the Service and the Software or Data license by sending you an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to you. You may (where permitted by law) agree to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.
B. Termination of Services and Software License. Either party may terminate an individual Service Agreement if the other party commits a material breach of such agreement and the breach is not cured within 90 days of faxed notice to 267.295.1083 from the injured party except Glencore Marketing may immediately terminate a Service Agreement if you fail to make payment for the Services when due. Termination of any or all Service Agreements will not terminate this Agreement. Unless renewed in accordance with this Agreement, this Agreement will terminate automatically upon the expiration of the agreed term of Services and Software license. Glencore Marketing may terminate this Agreement immediately, including prior to the expiration of the term of Services or Software license, if (1) you fail to make any payment when due; (2) you are acquired by or merge with a competitor of Glencore Marketing; (3) you declare bankruptcy or are adjudicated bankrupt; or (4) a receiver or trustee is appointed for you or substantially all of your assets. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
4. Proprietary Rights.
All right, title and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets and trade dress) embodied in the Software, Products, Data and Materials, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to Glencore Marketing or the applicable suppliers or licensors, and you shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Software, Data, Products and Materials are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Software and Materials, in whole or in part.
Glencore Marketing and its applicable suppliers or licensors will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation and techniques associated with such Deliverables. Subject to payment in full for the applicable Services, Glencore Marketing grants you a non-exclusive, non-transferable, royalty-free right, unless otherwise noted to use the Deliverables solely in the country or countries in which you do business, solely for your internal use, and solely as necessary for you to enjoy the benefit of the Services as stated in the applicable Service Agreements.
6. Suspension or Modification of Software or Services or Data.
Glencore Marketing may suspend, terminate, withdraw or discontinue all or part of the Services or your access or one or more users access to the Software (and third-party software) upon receipt of a subpoena or law-enforcement request, or when Glencore Marketing believes, in its sole discretion, that you (or your users) have breached any term of this Agreement or an applicable Service Agreement or are involved in any fraudulent, misleading or illegal activities.
With respect to Software or Data provided or otherwise made available to you by Glencore Marketing in connection with Services, it may be necessary for Glencore Marketing to perform scheduled or unscheduled repairs or maintenance or remotely patch or upgrade the software or data, which may temporarily degrade the quality of the Services or result in partial or complete outage of the Software or Data. Glencore Marketing provides no assurance that you will receive advance notification of such activities or that the Software or Data or Services will be uninterrupted or error-free. Unless otherwise agreed to in writing between you and Glencore Marketing, any degradation or interruption in the Software or Services shall not give rise to a refund or credit of any fees paid by you.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, DATA, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. Glencore Marketing SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SOFTWARE.
7. Support Services.
A. Your Responsibilities. When Services consist of repair of Glencore Marketing-branded data systems, such Services shall be those repair services that are necessary to fix a defect in materials or workmanship of a system or any standard system component covered by this Agreement. Preventive maintenance is not included. Repairs necessitated by software or data problems, or as a result of alteration, adjustment or repair by anyone other than Glencore Marketing (or its representatives) are not included. Unless otherwise expressly provided in a Service Agreement, Services do not include repair of any system or system component that has been damaged as a result of (1) accident, misuse or abuse of the system or component (such as use of incorrect applications or programs, or failure to follow operating instructions) by anyone other than Glencore Marketing (or its representatives); (2) the moving of the system or data from one geographic location or entity to another; or (3) an act of nature such as lightning, flooding, tornado, earthquake or hurricane.
B. Customer Authorization for Provision of Services. Some warranties or service-contracts for Third-Party Products may become void if Glencore Marketing or anyone other than an authorized service provider provides services for or works on such software or data provided to you. Glencore Marketing DOES NOT TAKE RESPONSIBILITY FOR ANY EFFECT THAT THE Glencore Marketing SERVICES OR DATA.
You authorize Glencore Marketing to use or otherwise access any and all Customer-provided Third-Party Products as necessary or as requested by Customer in Glencore Marketings performance of the Services or data. You shall defend, indemnify and hold Glencore Marketing harmless from any third-party claim or action arising out of your failure to provide such authorization (such as obtain appropriate licenses, intellectual-property rights or any other permissions, regulatory certifications or approvals associated with technology, software, data or other components.
8. Software and Data.
A. Accompanying License. Software and Data is subject to the separate software and data license agreements accompanying the software and data, if applicable. Customer agrees that Customer will be bound by such license agreement.
B. Software and Data License from Glencore Marketing. With respect to Software and Data provided or otherwise made available to you by Glencore Marketing in connection with the Services, if no license terms accompany the Software or Data, then subject to your compliance with the terms set forth in this Agreement, Glencore Marketing hereby grants Customer a personal, nonexclusive license to access and use such Software and Data only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services and Data as stated in the applicable Service and Data Agreements. Data will be licensed as a rental, or one time use unless specified otherwise.
I. Restrictions. Customer may not copy, modify or create a derivative work, collective work or compilation of the Software or Data, and may not reverse engineer, decompile or otherwise attempt to extract the code of the Software or Data or any part thereof. Customer may not license, sell, assign, sublicense or otherwise transfer or encumber the Software or Data; may not use the Software or Data in a managed-services arrangement; and may not use the Software or Data in excess of the authorized number of licensed seats for concurrent users, sites or other criteria specified in the applicable Service and Data Agreements. In addition, Customer may not access the Software or Data to monitor its availability, performance or functionality, or for any other benchmarking or competitive purpose.
II. Customer is further prohibited from (1) attempting to use or gain unauthorized access to Glencore Marketing or to any third partys networks or equipment; (2) permitting other individuals or entities to use the Software or Data or copy the Software, Data, or Services; (3) attempting to probe, scan or test the vulnerability of Software or a system or of the data, account or network of Glencore Marketing or any of its customers or suppliers; (4) interfering or attempting to interfere with service to any user, host or network; (5) engaging in fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial messages; (7) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (8) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any Glencore Marketing (or Glencore Marketing Service supplier) facilities used to deliver the Services.
III. Audit. You hereby grant Glencore Marketing, or an agent designated by Glencore Marketing, the right to perform an audit of your use of the Software or Data during normal business hours; you agree to cooperate with Glencore Marketing in such audit; and you agree to provide Glencore Marketing with all records reasonably related to your use of the Software and Data. The audit will be limited to verification of your compliance with the terms of this Agreement.
For information about Glencore Marketings privacy practices, please read Glencore Marketings privacy herein this document
10. Customer and System Data.
In Glencore Marketings performance of the Services or in connection with your use of the Service-related Software and Service-related Data, it may be necessary for Glencore Marketing to obtain, receive or collect data or information, including system-specific data (collectively, the Data). In such cases, you grant Glencore Marketing a no-exclusive, worldwide, royalty-free, perpetual, non revocable license to use, compile, distribute, display, store, process, reproduce or create derivative works of the Data solely for those purposes. In addition, you grant Glencore Marketing a license to aggregate and use the Data in an anonymous manner in support of Glencore Marketings marketing and sales activities. You also grant Glencore Marketing the right to copy and maintain such material and content on Glencore Marketings servers (or the servers of its suppliers) during the term of this Agreement. You represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer the Data within and outside of the country in which you are located in conjunction with Glencore Marketings performance of the Services or your use of the Service-related Software and Service-related Data (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents and contractors).
11. High-Risk Disclaimer.
The Glencore Marketing-branded Products, Software, Data and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the products, software, data or services could lead directly to death, personal injury or severe physical or property damage (collectively, High-Risk Activities). Glencore Marketing expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
12. Important Additional Information.
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT Glencore MarketingS WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALWAYS ENFORCE CLASS ACTION OR JURY WAIVERS, AND MAY LIMIT FORUM SELECTION CLAUSES AND STATUTE OF LIMITATIONS PROVISIONS, AS SUCH, ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY TO YOU, AND Glencore MarketingS LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
A. Limited Warranty and 100% Satisfaction Guarantee
I. THE LIMITED WARRANTIES AND 100% SATISFACTION GUARANTEE FOR Glencore Marketing-BRANDED PRODUCTS CAN BE FOUND HEREIN OR IN THE DOCUMENTATION Glencore Marketing PROVIDES WITH SUCH PRODUCTS, SERVICES OR DATA. THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER. Glencore Marketing HAS THE RIGHT TO GRANT THE LICENSES TO THE SOFTWARE OR DATA LICENSED IN SECTION 8.b ABOVE, AND SUCH SOFTWARE OR DATA WILL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS AND CURRENT DOCUMENTATION PROVIDED BY Glencore Marketing. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCES OF THIS PARAGRAPH, Glencore Marketing, (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS (COLLECTIVELY, THE Glencore Marketing PARTIES) MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS, SOFTWARE, DATA, OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE OR SERVICES; (3) RELATING TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE OR DATA OR Glencore Marketings PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES OR THE RESULTS OF ANY RECOMMENDATION BY Glencore Marketing.
II. 100% SATISFACTION GUARANTEE RETURNED ALLOWS FOR A FULL REFUND FOR ANY OF YOUR LIST THAT IS UNDELIVERABLE, OUT OF DATE, OR DISCONNECTED. THE PERCENTAGE OF THE BAD DATA MUST EXCEED 20%. LISTS PURCHASED FOR EMAIL, FAX, OR PHONE ARE NOT COVERED. RETURNED MAIL MUST BE POSTMARKED WITHIN 30 DAYS OF PURCHASE. ONLY ONE REFUND PERMITTED PER PURCHASE AND SHALL NOT INCLUDE THE FULFILLMENT FEE. REFUND OPTION ONLY AVAILABLE TO POSTAL ONLY ORDERS, ANY ADDITIONAL SELECTS TO A POSTAL ORDER WILL NULL REFUND. Glencore Marketing HAS THE RIGHT TO VERIFY THAT THE DATA WAS PURCHASED FROM Glencore Marketing. MAIL PIECES REFUSED BY THE ADDRESSEE THAT CONTAIN ACCURATE ADDRESSES ARE NOT COVERED. ONLY Glencore Marketing U.S. BUSINESS POSTAL AND U.S. CONSUMER POSTAL ARE COVERED. LISTS NOT COMPILED BY Glencore Marketing OR THAT CONTAIN THIRD-PARTY AND BROKERED DATA ARE NOT COVERED; THESE INCLUDE, BUT ARE NOT LIMITED TO: NURSES, FLEET OWNERS & OPERATORS, EXECUTIVES BY ETHNICITY, BOAT OWNERS, COLLEGE STUDENTS, HIGH SCHOOL STUDENTS, MAGAZINE SUBSCRIBERS, MILITARY VETERANS, MOTORCYCLE OWNERS, NEWBORNS & PRENATAL, OCCUPANT/SATURATION LISTS, RV OWNERS, AND TEACHERS. GUARANTEE IS OFFERED FOR A LIMITED TIME ONLY AND CAN BE ENDED OR MODIFIED WITHOUT FURTHER NOTICE.
B. Limitation of Liability
I. Glencore Marketing WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SOFTWARE OR DATA OR SERVICES PROVIDED HEREUNDER. EXCEPT FOR YOUR BREACH OF SECTION 1.d.1. OR 8,, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (3) LOSS OF BUSINESS OPPORTUNITY; (4) BUSINESS INTERRUPTION OR DOWNTIME; OR (5) DELIVERABLES, Glencore Marketing PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.
II. THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR Glencore MarketingS SALE OF PRODUCTS, SOFTWARE, DATA OR SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
C. Confidentiality. In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as software, data, product plans, pricing, marketing and sales information, customer lists, know-how, or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, Confidential Information). Confidential Information may not be shared with third parties unless such disclosure is to the receiving partys personnel, including employees, agents and subcontractors, on a need-to-know basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other partys Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.
D. Indemnification. Glencore Marketing shall defend and indemnify you against any third-party claim or action that Products, Software, Services or Deliverables (excluding Third-Party Products and open source software) prepared or produced by Glencore Marketing and delivered pursuant to this Agreement infringe or misappropriate that third partys U.S. patent, copyright, trade secret, or other intellectual property rights (Indemnified Claims). In addition, if Glencore Marketing receives prompt notice of an Indemnified Claim that, in Glencore Marketings reasonable opinion, is likely to result in an adverse ruling, then Glencore Marketing shall at its option, (1) obtain a right for you to continue using such Products, Deliverables or Software or Data or allow Glencore Marketing to continue performing the Services; (2) modify such Products, Software, Services or Deliverables to make them non-infringing; (3) replace such Products, Software, Services or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables or Software. Notwithstanding the foregoing, Glencore Marketing shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products, Software, Services, Data, Deliverables that were not performed by or on behalf of Glencore Marketing; (2) the combination, operation, or use of the Products, Software, Services, Data or Deliverables in connection with a third-party product, software or service (the combination of which causes the claimed infringement); or (3) Glencore Marketings compliance with your written specifications or directions, including the incorporation of any software, data or other materials or processes provided by or requested by you. Glencore Marketings duty to indemnify and defend under this Section 12.d. is contingent upon: (x) Glencore Marketing receiving prompt written notice of the third-party claim or action for which Glencore Marketing must indemnify Customer via fax at 267.295.1083, (y) Glencore Marketing having the right to solely control the defense and resolution of such claim or action, and (z) your cooperation with Glencore Marketing in defending and resolving such claim or action. This Section 12.d. states Customers exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Glencore Marketing to provide any greater indemnity to Customer.
You shall defend and indemnify Glencore Marketing against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Products, Software Services or Deliverables; (2) your breach of Glencore Marketings proprietary rights as stated in this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against Glencore Marketing due to your violation or alleged violation of applicable export laws, regulations or orders; or (4) your providing of (or providing access to) Excluded Data to Glencore Marketing.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying partys gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
E. Independent Contractor Relationship; Assignment; Subcontracting. The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Glencore Marketing and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Glencore Marketing has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that Glencore Marketing shall remain responsible for the performance of Services under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other
F. Force Majeure. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a Force Majeure). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed partys time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Service Agreement by giving written notice to the delayed party.
G. Export Compliance. You acknowledge that the Products, Software and Services and Data provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of the United States (U.S.), may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which you or your system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products, Software or Services are rendered or received. You agree to abide by those laws and regulations. You further represent that any software provided by you and used as part of the Products, Software or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If you cannot make the preceding representation, you agree to provide Glencore Marketing with all of the information needed for Glencore Marketing to obtain export licenses from the U.S. Government or any other applicable national government and to provide Glencore Marketing with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, you are solely responsible for obtaining any necessary licenses relating to the export of software. Glencore Marketing also may require export certifications from you for software. Glencore Marketings acceptance of any order for Products, Software, or Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; Glencore Marketing is not liable for delays or failure to deliver Products, Software, or Services resulting from your failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying partys violation or alleged violation of the applicable export laws, regulations or orders.Excluded Data. Customer acknowledges that Software and Services provided under this Agreement are not designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customers internal policies or practices or by law (collectively referred to as Excluded Data). Customer hereby agrees that Customer is solely responsible for reviewing its data that will be provided to Glencore Marketing (or to which Glencore Marketing will have access) to ensure that it does not contain Excluded Data.
H. Regulatory Requirements. Glencore Marketing is not responsible for determining whether any Third-Party Product to be used in the Products, Software, Data or performance of the Services, satisfies the local regulatory requirements of the country to which such Products, Software, or Services are to be delivered, and Glencore Marketing shall not be obligated to provide any Product or Software or perform any Services where the resulting Products, Software or Services or Data do not satisfy the local regulatory requirements.
I. Entire Agreement; Severability. This Agreement is the entire agreement between you and Glencore Marketing with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and Glencore Marketing. Any preprinted terms on your purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Glencore Marketing. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
J. Updates. Glencore Marketing reserves the right to update this Agreement at any time, effective upon posting an updated version; however, your rights and obligations shall be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of Products, Software or Services or, when applicable, renewal of Software or Services or Data.
K. U.S. Government Restricted Rights. The software and documentation provided with the Products, Software, Data and Services are commercial items as that term is defined at 48 C.F.R. 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth herein.
L. Governing Law. This Agreement, any related Service Agreement, and ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Glencore Marketing, including their affiliates, contractors and agents, and each of their respective employees, directors and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Glencore Marketings advertising or any related purchase (a Dispute) shall be governed by the laws of the State of South Dakota, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
M. Venue. The parties agree that any Dispute (as defined in ¶ 12(l)) shall be brought exclusively in the state or federal courts located in South Dakota. Customer and Glencore Marketing agree to submit to the personal jurisdiction of the state and federal courts located within South Dakota, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
N. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
O. No Class Actions. NEITHER CUSTOMER NOR Glencore Marketing SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
P. Limitation Period. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO MONTHS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Q. Dispute Resolution. Customer and Glencore Marketing will attempt to resolve any Dispute (as defined in ¶ 12(l)) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in South Dakota temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.
R. Non-Disparagement. By signing the Purchase Order the individual, company, and any agent or person(s) working in conjunction with individual or company agree that there will be no engagement in any conduct or communications designed to disparage Glencore Marketing or its subsidiaries. In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this purchase order prohibits you from taking any action that negatively impacts Glencore Marketing.pw, its reputation, products, services, management, contractors or employees. Should you violate this clause, as determined by Glencore Marketing.pw in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $5,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.
S. Notices. Notice to Glencore Marketing under this Agreement or any related Service Agreement must be in writing and sent by facsimile or e-mail as specified in writing, and will be effective upon receipt.