Last Updated: May 25, 2018
Gabi Solutions, Inc. Terms of Service
Welcome to Gabi Solutions
Thank you for using our products and services (“Services”). The Services GABI SOLUTIONS are provided by Gabi Solutions (hereafter also known as "Gabi Solutions"), a New Jersey limited liability company with its principal place of business at 19 Gloria Lane, Fairfield, NJ 07004.
PLEASE READ CAREFULLY
By using our Services, you are agreeing to these terms (“Agreement”) which governs your acquisition and use of our Services.
If you register for a free trial for our services or are using free versions of our services, the terms of this agreement also govern free Services.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer” means the non Gabi Solutions party and its Affiliates.
“Customer Data” means all electronic data or information submitted by Customer to the Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, tiles, scripts, agents or programs.
“Acceptance Date” means the date on which Gabi Solutions accepts an order from the Customer for Service subscription.
“Services” means any product or service provided by Gabi Solutions.
“Third-Party Applications” means online, Web based applications and offline software products that are provided by third parties.
“User Guide” means the online user guide for the Services, as updated from time to time.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Gabi Solutions at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with which Customer transacts business.
You must follow any policy, term and agreement made available to you within the Services. Don’t use our Services for other then their intended purposes, including but not limited to accessing only data that you are permitted.
Additionally as an example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
Our Services display some content that is not Gabi Solutions. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
Provision of Services. Compliance with the terms of this Agreement, Gabi Solutions shall make the Services available to Customer pursuant to this Agreement.
User Subscriptions. Services are User subscriptions and may be accessed by no more than the specified number of paid Users. A license subscription may not be shared by users by temporarily reassigning the license. A license may be permanently reassigned from one user to another user at any time.
GABI SOLUTIONS RESPONSIBILITIES
Gabi Solutions shall provide support through its website or by email. Unless otherwise agreed in writing by Customer and Gabi Solutions, Gabi Solutions will not provide support for any Third Party Applications, or any customizations, extensions or and code provided by any third party. Gabi Solutions will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for third party reasons or any unavailability caused by circumstances beyond Gabi Solutions' reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays. Gabi Solutions will provide the Services only in accordance with applicable laws and government regulations.
Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
Acquisition of Third-Party Products and Services. Any acquisition by Customer of third party products or services, including but not limited to Third Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third party provider, whether directly or indirectly, is solely between Customer and the applicable third party provider. Gabi Solutions does not warrant or support third party products or services, whether or not they are designated by Gabi Solutions as “certified” or otherwise.
Third-Party Applications and Customer Data. If Customer installs or enables Third Party Applications for use with Services, Customer acknowledges that Gabi Solutions may allow providers of those Third Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Services. Gabi Solutions shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers or through such providers’ applications.
User Subscriptions. If Customer is in breach of this Agreement Gabi Solutions may, without limiting its other rights and remedies, suspend Customer’s access to the Services upon notice to Customer.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Gabi Solutions reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Ownership of Customer Data. As between Gabi Solutions and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.
Suggestions. Gabi Solutions shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.
Federal Government End Use Provisions. Gabi Solutions provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Gabi Solutions to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; Confidential Information of Gabi Solutions shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known. to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Protection of Customer Data. Customer may secure their data by (i) protection of access to the device the Gabi Solutions applications are stored and (ii) use a unique and difficult passcode to access applications and (iii) use of third party applications to enable their capability to lock and remote wipe the device and it’s applications and (iv) delete the application prior to any other user having access to the application or device.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Gabi Solutions Warranties. Gabi Solutions warrants that (i) the Services shall perform materially in accordance with the User Guide, and (ii) subject to the Gabi Solutions Services, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy from Gabi Solutions shall be to terminate this Agreement as provided in the “Termination for Cause” section below.
Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by Gabi Solutions. Customer will (a) promptly give Gabi Solutions written notice of any Claim, (b) gives Gabi Solutions sole control of the defense and settlement of the Claim, and (c) Customer provides to VISION-E all reasonable assistance.
Indemnification by Customer. Customer shall defend Gabi Solutions against any Claim made or brought against Gabi Solutions by a third party alleging that the Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Gabi Solutions for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Gabi Solutions in connection with any such Claim; provided that Gabi Solutions (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Gabi Solutions of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.
Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE Gabi Solutions SERVICES, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $1,000,000 OR THE AMOUNT PAID BY CUSTOMER FOR THE Gabi Solutions SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted have expired or been terminated. Term of this Agreement shall be annual from the Effective Date or as indicated in other terms that you elect.
Term of User Subscriptions. User subscriptions commence on the start date specified to Gabi Solutions for such subscriptions and continue for the subscription term specified therein.
Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Surviving Provisions. The sections titled “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Return of Customer Data;” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of Gabi Solutions and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Governing Law. This Agreement, and any dispute arising out of or, related hereto, shall be governed exclusively by the internal laws of the State of New Jersey, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Venue; Waiver of Jury Trial. The state and federal courts located in New Jersey shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Gabi Solutions uses data from salesforce.com customers to perform the services requested. For example, if you login to an app or fill out a “Contact Me” Web form, the Company will use the information provided to contact you about your interest in the Services.
Gabi Solutions may use data about salesforce.com customers for internal marketing purposes. For example, the Company may use information you provide to contact you to further discuss your interest in the Services and to send you information regarding the Gabi Solutions products and training.
Entire Agreement. This Agreement constitutes the entire agreement between Gabi Solutions and Customer and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter between Gabi Solutions and Customer. VISION-E reserves the right to modify the agreement at any time.
Terms will remain available and updated on the Gabi Solutions website.