Grouparoo Master Terms and Conditions

Last Updated October 13, 2021

THANK YOU FOR USING GROUPAROO’S SOFTWARE PRODUCTS. BY ACCEPTING THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) OR USING THE SOFTWARE PRODUCTS, THE ENTITY IDENTIFIED AS THE CUSTOMER IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AGREES TO THESE TERMS AND CONDITIONS WITH GROUPAROO, INC. (“GROUPAROO”). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.

1. Software Products License

   1.1 License Grant. Subject to the terms and conditions of this Agreement, Grouparoo hereby grants to Customer, during the Subscription Term (as defined in the applicable Order Form mutually executed by the parties referencing this Agreement (“Order Form”), a non-exclusive, non-transferable, non-sublicenseable right and license to access and use the Software Products (as defined in such Order Form) for internal business purposes only, subject to any usage limitations or other restrictions set forth in such Order Form.

   1.2 Restrictions on Use. Customer may not: a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software Products; b) copy the Software Products onto any public or distributed network, except for an internal and secure cloud computing environment; c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software Products, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software Products; d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software Products; e) modify any proprietary rights notices which appear in the Software Products or components thereof; or f) use any Software Products in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1. Customer shall not export or re-export any Software Products or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

   1.3 Unauthorized use. Customer shall notify Grouparoo immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software Products. Customer is responsible for use of the Software Products by any and all employees, contractors, or other users that it allows to access the Software Products.

   1.4 Support and Maintenance. During the Subscription Term of the applicable Order Form, Grouparoo will provide Customer with standard Support at no additional cost.

   1.5 Feedback. Customer may from time to time provide Grouparoo suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”). Grouparoo will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Grouparoo will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

2. Fees

   2.1 Pricing and Audits. Customer will be billed for those amounts and at those prices set forth in the applicable Order Form for the Subscription Term indicated therein. Customer will maintain, and Grouparoo will be entitled to audit, any records relevant to Customer’s use of the Software Products hereunder. Grouparoo may audit such records on reasonable notice at Grouparoo’s cost (or if the audits reveal material non-compliance with this Agreement, at Customer’s cost).

   2.2 Payments. Customer shall pay those amounts set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the Order Form, in which case the payment will be due on the date specified. All payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under this Agreement. The fees paid by Customer are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on Grouparoo’s income. Customer represents and warrants that the billing and contact information provided to Grouparoo is complete and accurate. Customer shall pay interest on all payments not received by the due date at a rate of one and a half percent (1.5%) or the maximum amount allowed by law, whichever is lesser.

3. Confidentiality.

   3.1 Scope and Restrictions. "Confidential Information" means all information of a party ("Disclosing party") disclosed to the other party ("Receiving party") that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Receiving party will: (i) not use the Disclosing party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees, consultants, agents and professional advisers who have a “need to know” for the Receiving party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use commercially reasonable measures to protect the confidentiality of such Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing party, and, to the extent within its control, permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such information.

   3.2 Equitable Relief. The Receiving party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity

4. Proprietary Rights.

   GROUPAROO AND ITS SUPPLIERS OWN AND SHALL RETAIN ALL PROPRIETARY RIGHTS, INCLUDING ALL COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK AND ALL OTHER INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE SOFTWARE PRODUCTS. CUSTOMER ACKNOWLEDGES THAT THE RIGHTS GRANTED UNDER THIS AGREEMENT DO NOT PROVIDE CUSTOMER WITH TITLE TO OR OWNERSHIP OF THE SOFTWARE PRODUCTS. CERTAIN “FREE” OR “OPEN SOURCE” BASED SOFTWARE PRODUCTS (THE “FOSS SOFTWARE”) MAY BE SHIPPED WITH THE SOFTWARE PRODUCTS BUT IS NOT CONSIDERED PART OF THE SOFTWARE PRODUCTS HEREUNDER.

5. Term and Termination.

   The Subscription Term of each Order Form is as specified in such Order Form. This Agreement will be in effect for so long as any Order Form is in effect. If either party fails to comply with any provision of this Agreement or any Order Form, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement or the affected Order Form, except that Grouparoo may immediately terminate this agreement or the affected Order Form upon Customer’s breach of Section 1.2. Upon expiration or termination of the applicable Order Form for any reason, Customer shall cease any further use of the applicable Software Products and destroy any copies of the applicable Software Products or related technical documentation provided by Grouparoo (“Documentation”) within Customer’s possession and control. Upon expiration or termination of this Agreement, each Receiving party will return or destroy, at the Disclosing party’s option, the Disclosing party’s Confidential Information in the Receiving party’s possession or control. All fees that have accrued as of such expiration or termination, and sections 1.2, 1.3, 1.5, 2, 3, 4, 5, 6.2, 7, 8, 9 and 10, will survive any expiration or termination of this agreement or the affected order form.

6. Warranties

   6.1 Limited Warranty. Grouparoo warrants that, during the first ninety (90) days following the date the Software Products is made available to Customer pursuant to the Order Form or such other period of time as may be agreed upon in writing by the parties (the “Warranty Period”), the Software Products will, in all material respects, conform to the functionality described in the Documentation. Grouparoo’s sole and exclusive obligation, and Customer's sole and exclusive remedy, for a breach of this warranty shall be that Grouparoo shall be required to use commercially reasonable efforts to modify the Software Products to conform in all material respects the Documentation, and if Grouparoo is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, as Customer’s sole and exclusive remedy, Customer shall be entitled to terminate this the applicable Order Form upon written notice and receive a pro rata refund of the license fees which have been prepaid for such Software Products for the unused Subscription Term, if any.

   6.2 Warranty Disclaimer. EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE SOFTWARE PRODUCTS AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND GROUPAROO EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE PRODUCTS OR ANY RELATED SERVICES. GROUPAROO EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE PRODUCTS OR ANY RELATED SERVICES.

7. Indemnification

   7.1 By Grouparoo. Grouparoo agrees to defend at its expense Customer against any third party claim to the extent such claim alleges that the Software Products infringes or misappropriates any United States patent, copyright, trademark or trade secret of a third party, and Grouparoo shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software Products is, or in Grouparoo’s sole opinion is likely to become, subject to such a claim, Grouparoo, at its option and expense, may (a) replace the applicable Software Products with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Software Products, or (c) terminate the applicable Order Form and provide a pro-rata refund of any fees prepaid for such Software Products for the unused Subscription Term, if any. The foregoing indemnification obligation of Grouparoo will not apply: (1) if the Software Product is modified by or on behalf of Customer; (2) if the Software Product is combined with other non-Grouparoo products, applications, data or processes, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software Product; or (4) Customer’s failure to use updated or modified Software Products provided by Grouparoo to avoid infringement or misappropriation (clauses (1) through (4), each, an “Excluded Claim”). THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND ALL OBLIGATIONS OF GROUPAROO AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SOFTWARE PRODUCTS.

   7.2 By Customer. Customer agrees to defend at its expense Grouparoo against any third party claim to the extent such claim arises from an Excluded Claim, and Customer shall pay all costs and damages finally awarded against Grouparoo by a court of competent jurisdiction as a result of any such claim.

   7.3 Indemnification Requirements. In connection with any claim for indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7, except to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

8. Limitation of Liability

   8.1 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 1.2, EITHER PARTY’S BREACH OF SECTION 3 OR EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

   8.2 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 1.2, EITHER PARTY’S BREACH OF SECTION 3, CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OR EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S LIABILITY HEREUNDER FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO GROUPAROO HEREUNDER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

9. Force Majeure

   EXCEPT FOR PAYMENT OBLIGATIONS, NEITHER PARTY HERETO WILL BE LIABLE FOR DEFAULTS OR DELAYS DUE TO ACTS OF GOD, OR THE PUBLIC ENEMY, ACTS OR DEMANDS OF ANY GOVERNMENT OR GOVERNMENTAL AGENCY, FIRES, FLOODS, ACCIDENTS, OR OTHER UNFORESEEABLE CAUSES BEYOND ITS REASONABLE CONTROL.

10. Miscellaneous

    10.1 This Agreement shall be governed by and construed under the laws of the State of California. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California.

    10.2 Failure by either party to exercise any of its rights under, or to enforce any provision of, this agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this agreement will remain in full force and effect.

    10.3 This Agreement (including all Order Forms, addenda, and exhibits hereto) represents the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement.

    10.4 The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement.

    10.5 This Agreement may not be assigned by either party without the prior written approval of the other, except that either party may assign this Agreement to a successor to all or substantially all of the business or assets to which this agreement relates; and any purported assignment in violation of this section shall be void.

    10.6 Customer agrees that Grouparoo may refer to Customer by trade name and logo, and may briefly describe Customer’s business, in Grouparoo’s marketing materials and web site.

    10.7 Grouparoo may give notice to Customer by electronic mail to Customer’s e-mail address on record in Customer’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Customer’s account information. Customer may give notice to Grouparoo at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Grouparoo at the following address:

    Grouparoo Inc.
    584 Castro St #662
    San Francisco, CA