Last Modified: March 31, 2021
These Terms of Service (this “Agreement”) is a binding contract between you (“Client,” “you,” or “your”) and GroupSolver, Inc. (“GroupSolver,” “we,” or “us”). This Agreement governs your access to and use of the Software.
THIS AGREEMENT TAKES EFFECT WHEN YOU CHECK THE “I AGREE” CHECK BOX PRESENTED TO YOU WITH THIS AGREEMENT OR BY ACCESSING OR USING THE SOFTWARE (the “Effective Date”). BY CHECKING THE “I AGREE” CHECKBOX OR BY ACCESSING OR USING THE SOFTWARE YOU: (i) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (ii) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (iii) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS YOU MAY NOT ACCESS OR USE THE SOFTWARE.
1.1 “Authorized User” means your and your employees, contractors, and agents who are authorized by you to access and use the Software under the rights granted to you under to this Agreement and for whom access to the Software has been purchased under this Agreement.
1.2 “Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of you or any other Authorized User through the Software, but excludes Aggregated Statistics (defined below).
1.3 “Documentation” means any user resources, guides or other documentation relating to the Software provided by us to you in electronic or hard copy form or at groupsolver.com.
1.4 “GroupSolver IP” means the Software, Documentation, and all intellectual property provided to you or any other Authorized User in connection with the foregoing. For the avoidance of doubt, GroupSolver IP includes Aggregated Statistics and any data, information, or other content derived from our monitoring of your access to or use of the Software but does not include Client Data.
1.5 “Software” means the software-as-a-service offering provided by us under this Agreement that is detailed on our website available at www.groupsolver.com and may be otherwise reflected in your order or a separate agreement between us.
1.6 “Third-Party Products” means any products, services, information, content, or other materials that are owned by third parties and incorporated into or accessible through the Software.
2. Access and Use.
2.1 Provision of Access. Subject to and conditioned on your payment of Fees (defined below) and compliance with all other terms and conditions of this Agreement, we hereby grant you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Software during the Term solely for your internal business operations. We will provide you with any necessary access credentials or passwords to allow you to access the Software.
2.2 Documentation License. Subject to the terms and conditions contained in this Agreement, we hereby grant you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Software.
2.3 Use Restrictions. You must not, and must not permit any Authorized Users to, use the Software, any component of the Software, or Documentation for any purposes beyond the scope of access granted in this Agreement. You must not , and must not permit any Authorized Users to, directly or indirectly: (i) copy, modify, or create derivative works of the Software, any component of the Software, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law, regulation, or rule.
2.4 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, we may monitor your use of the Software and collect and compile data and information related to that use to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Statistics”). As between us and you, all right, title, and interest in Aggregated Statistics, including intellectual property rights in them, belong to and are retained solely by us. You acknowledge that we may compile Aggregated Statistics based on Client Data input into the Software and you agree that we may make use the Aggregated Statistics or make them publicly available to the extent and in the manner permitted under applicable laws, rules, or regulations, as long as the Aggregated Statistics do not identify you or your Confidential Information.
2.5 Reservation of Rights. We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the GroupSolver IP.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your and any other Authorized User’s access to any portion or all of the Software if: (i) we reasonably determine that there is a threat or attack on any of the GroupSolver IP; (ii) your or any other Authorized User’s use of the GroupSolver IP disrupts or poses a security risk to the GroupSolver IP or to any of our clients or vendors; (iii) you or any other Authorized User is using the GroupSolver IP for fraudulent or illegal activities; (iv) our provision of the Software to you or any other Authorized User is prohibited by applicable law; (v) any of our vendors has suspended or terminated our access to or use of any third-party services or products required to enable you to access the Software (each a “Service Suspension”). We must use commercially reasonable efforts to provide written notice to you of any Service Suspension and updates regarding resumption of access to the Software following any Service Suspension. We must use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will not be liable for any damages, losses (including lost profits), or other liabilities or consequences that you or any other Authorized User may incur as a result of a Service Suspension.
3. Client Responsibilities.
3.1 Acceptable Use Policy. The Software must not be used for unlawful, fraudulent, offensive, or obscene activity. You must comply with any acceptable use policy or other use guidelines, standards or requirements available at groupsolver.com or otherwise provided by us.
3.2 Account Use. You are responsible and liable for all uses of the Software and Documentation resulting from access provided by you, directly or indirectly, whether the access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be considered a breach of this Agreement by you. You must use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and must cause Authorized Users to comply with such provisions.
3.3 Client Data. You hereby grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for us to provide the Software to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics. You will ensure that Client Data and any Authorized User’s use of Client Data will not violate this Agreement, any other agreement or policy incorporated into this Agreement by reference, or any applicable laws, rules, or regulations. You are solely responsible for the development, operation, maintenance, content and use of Client Data.
3.4 Passwords and Access Credentials. You are responsible for maintaining the confidentiality of your access credentials and passwords associated with the Software. You must not sell or transfer them to any other person or entity. You must promptly notify us about any unauthorized access to your access credentials or passwords.
3.5 Third-Party Products. The Services may permit access to Third-Party Products. Third-Party Products may be subject to their own terms and conditions. If you do not agree to abide by the Third-Party Products’ terms and conditions, you should not install, access, or use the Third-Party Products.
4. Service Levels and Support.
4.1 Service Levels. Subject to the terms and conditions of this Agreement, we will use commercially reasonable efforts to make the Software available at least 99.5% of the time as measured over the course of each calendar month during the term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by you and your Authorized Users over the Internet. The following are “Exceptions” to the Availability Requirement: (i) any act or omission or access to or use of the Software by you or any Authorized User that does not comply with this Agreement; (ii) your or your Authorized User’s Internet connectivity; (iii) a force majeure event; (iv) a failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by us under this Agreement; (v) any Scheduled Downtime; or (vi) any Service Suspension.
4.2 Scheduled Downtime. We will use commercially reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 1am and 5am, Pacific Time (the “Scheduled Downtime”).
4.3 Support. This Agreement entitles you to limited support for the Software via telephone or email.
5. Fees and Payment. You must pay us the fees described on any order form or statement or work (the “Fees”) in accordance with the terms of the order form or statement or work. In accordance with Section 2.6, if you fail to pay any amounts when due, we may suspend your and all other Authorized Users’ access to any portion or all of the Software until the amounts are paid in full.
6. Confidential Information. In connection with our proposed or actual business relationship, or during the term of this Agreement, you and we have disclosed or may disclose to each other, or have allowed or may allow each other access to, Confidential Information. “Confidential Information” means all non-public, proprietary, or confidential information of the disclosing party (the “Discloser”) or relating to the Discloser’s business (including Confidential Information disclosed to or accessed by the recipient (the “Recipient”) before this Agreement) in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “proprietary” or “confidential.” Confidential Information also includes other information that is marked or otherwise identified as proprietary or confidential, or that would otherwise appear to a reasonable person to be proprietary or confidential in the context and circumstances in which the information is disclosed or accessed. Confidential Information does not include information that is generally available to and known by the public at the time it is disclosed or accessed, unless it is generally available and known through the Recipient’s direct or indirect fault or the direct or indirect fault of person(s) acting on the Recipient’s behalf. Unless permitted by this Agreement, the Recipient must not use Confidential Information for its own account or any third party’s account, and must not disclose to any third party, any of the Discloser’s Confidential Information. This Agreement does not prevent the Recipient from disclosing Confidential Information if the disclosure is required by an applicable law or regulation or required under the valid order of a court of competent jurisdiction or an authorized government agency, as long as the disclosure does not exceed the extent of the disclosure required by the law, regulation, or order. The Recipient must promptly provide written notice of any court or government order to the Discloser so the Discloser can seek a protective order or other remedy.
8. Intellectual Property Ownership; Feedback. As between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the Software, and you own all right, title, and interest, including all intellectual property rights, in and to the Client Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including, without limitation, new features or functionality relating to the Software or any of our other products or services, or any other comments, questions, suggestions, or the like (“Feedback”), we are free to use the Feedback irrespective of any other obligation or limitation between you and us governing the Feedback. All Feedback is and will be treated as non-confidential. Without any attribution or compensation to you or any third party, you hereby assign to us on your behalf, and must cause your employees, contractors, and agents to assign, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, even though we may not use the Feedback.
9. Limited Warranty and Warranty Disclaimer.
- 9.1 GroupSolver Warranty. We represent and warrant that we will provide the Software using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- 9.2 Client Warranty. You represent and warrant that you own or otherwise have and will have the necessary rights and consents in and relating to the Client Data so that as it is received by us and processed in accordance with this Agreement, the Client Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable laws, rules, or regulations.
- 9.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, THE SOFTWARE IS PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10.1 GroupSolver Indemnification.
- We must indemnify, hold harmless, and defend you from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates the third party’s United States intellectual property rights, as long as you promptly notify us in writing of the Third-Party Claim, cooperate with us, and give us sole authority to control the defense and settlement of such Third-Party Claim.
- 10.2 If a Third-Party Claim is made or either you or we reasonably anticipate a Third-Party Claim will be made, you agree to permit us, at our sole discretion, to: (i) modify or replace the Software, or component or part thereof, to make it non-infringing; or (ii) obtain the right for you to continue use. If we determine that neither alternative is reasonably available, we may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you. This Section 10.1(B) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Software infringe, misappropriate, or otherwise violates any intellectual property rights of any third party.
- This Section 10.1 will not apply to the extent that the Third-Party Claim arises from Client Data or Third-Party Products.
10.2 Client Indemnification. You must indemnify, hold harmless, and, at our option, defend us and our officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights; or (ii) based on your or any Authorized User’s negligence or willful misconduct or use of the Software in a manner not authorized by this Agreement. However, you may not settle any Third-Party Claim against us unless we consent to the settlement, and further provided that we will have the right, at our option, to defend itself against any Third-Party Claim or participate in the defense by counsel of our own choice.
11. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 11 do not apply to the parties’ indemnification obligations under Section 10.
12. Term and Termination.
12. 1 Term. The term of this Agreement begins on the Effective Date and continues until terminated.
12.2 Termination. In addition to any other express termination right set forth in this Agreement, either party may terminate this Agreement:
- When all statements of work between them are expired or terminated;
- For any reason on 30 days’ advance notice to the other party, or for any reason without advance notice to the other party if your access and use of the Software is solely for trial or evaluation purposes;
- Effective on written notice to the other party, if the other party breaches this Agreement, and the breach is either incapable of cure or remains uncured 15 days after the non-breaching party provides written notice of the breach to the breaching party; or
- Effective on written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3 Effect of Termination. On termination of this Agreement, you must immediately discontinue use of the GroupSolver IP. No expiration or termination of this Agreement will affect your obligation to pay all Fees that may have become due before the expiration or termination or entitle you to any refund.
12.4 Survival. This Section 11.4, Sections 5 (Fees & Payment), 6 (Confidential Information), 10 (Indemnification), 11 (Limitations of Liability), 14 (Export Regulation), 15 (Miscellaneous), and any right or obligation that, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
13. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through direct email from us or notifications or posts on www.groupsolver.com. You are responsible for reviewing and becoming familiar with any modifications. Your continued use of the Software after the effective date of the modifications will be considered acceptance of the modified terms.
14. Export Regulation. You must comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the United States.
15.1 Assignment. This Agreement is personal to you and you may not assign, transfer, or delegate any or all of your rights or obligations under it without our prior written consent. Any attempted assignment, transfer, delegation or other conveyance in violation of the foregoing will be null and void. We reserve the right to assign or transfer this Agreement and delegate any of our obligations under it.
15.2 Governing Law; Jurisdiction. California law applies to this Agreement without regard for any choice-of-law rules that might direct the application of the laws of another jurisdiction. Exclusive jurisdiction lies with the courts of California for all actions or proceedings arising out of or relating to this Agreement and the parties hereby consent to the jurisdiction of those courts.
15.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersede any other agreements, representations, or understandings (whether oral, written, express, or implied) that relate to the subject matter.
15.4 Severability. If any part of this Agreement is held to be unenforceable, that part must be amended to achieve as nearly as possible the same economic effect as the original part and the rest of this Agreement remains fully enforceable.
15.5 Waiver. A party’s waiver of a provision or the other party’s breach of this Agreement is not a waiver of any similar or dissimilar provision or breach at the same, prior, or subsequent time. A party’s delay or failure to exercise any right, power, or privilege under this Agreement is not a waiver of that right, power, or privilege, and does not preclude the party from any other or further exercise of that or any other right, power, or privilege.
15.6 Captions. The captions or headings of this Agreement are for reference only and should not be construed as part of this Agreement.
15.7 Notice. Any notice required or permitted by this Agreement must be sent to our corporate headquarters address available at www.groupsolver.com and must be in writing and will be considered effective on receipt if delivered in person, by a reputable overnight courier service, by registered or certified mail (postage prepaid, return receipt requested). Notwithstanding the foregoing, you hereby consent to written notice by email or confirmed facsimile (if the email or facsimile is sent during your normal business hours, otherwise the email or facsimile is considered given or made on the next business day), at the address you most recently provided to us for the purpose of notice.