This License Agreement for the GroupBy Inc. Software (the “Agreement”) is made and entered into by and between GroupBy USA Inc. (“GroupBy”) and the customer identified in the Ordering Document (“Customer”). This Agreement, and the corresponding GroupBy Ordering Document by which Customer orders certain Products, set forth the terms and conditions under which Customer may license and use such Products. Ordering Documents are governed by this Agreement.
1.1 License Grant. Subject to the terms and conditions of this Agreement and the Ordering Document, and in consideration of your payment of all Fees, GroupBy grants to Customer, and Customer agrees to comply with a non-sublicensable, non-transferable, non-exclusive, limited license to use the Product during the License Term. A link to download the Software will be forwarded to Customer electronically. Customer will only use the Product to create and manage their site and to search, navigate and promote for Customer Content. The license grant set forth herein is limited to indexing the number of Documents specified on the Ordering Document.
1.2 Other Users. Customer may allow Other Users to use the Software for the purposes authorized in this Agreement, and subject to the terms of this Agreement. Customer is responsible for the behavior of the Other Users in connection with this Agreement.
1.3 Download link to the Software. The download link will not be sent until GroupBy receives a complete and duly executed Order Form and signed terms and conditions with accompanying Customer Purchase Order. If the Customer does not issue Purchase orders, a Purchase Order Exemption letter must be provided.
2.1 Generally. Customer will not, and will not allow others to: (a) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product or any component thereof; (b) alter the number of Documents; (c) create license keys that enable the Software; (d) copy the Software except as provided in Section 6.2; (e) use the Product for High Risk Activities; (f) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component of the Product; or (g) remove or alter any Brand Features or other proprietary notices on or in the Product.
2.3 Third Party Components. Any third party component embedded, included or provided for use with the Products may only be used in conjunction with such Products ordered under the Ordering Document, which use is subject to this Agreement. However, to the extent Products include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses. To the extent Products include components governed by open source licenses requiring the provision of corresponding source code for those components, GroupBy hereby provides that source code consistent with those licenses.
3.1 Generally. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. Intellectual Property Rights in and to the content accessed through the Software are the property of the applicable content owner and may be protected by applicable laws.
3.2 Branding. Customer may display a Graphic with the results page or the search box (or other means used by an end user to enter a search query) and may link to the GroupBy site located at www.groupbyinc.com (or such other URL as may be updated by GroupBy).
3.3 Brand Features. Any use of a party’s Brand Features will inure to the benefit of the party holding rights in those Brand Features. Each party agrees not to: (a) challenge or assist others to challenge the other party’s Brand Features or registration thereof (except to protect such party’s rights with respect to its own Brand Features); or (b) attempt to register any Brand Features that are confusingly similar to those of the other party.
4. Payment Terms..
4.1 Purchase Process.. GroupBy will provide Customer an Ordering Document for each purchase, to confirm the Product, quantity and price.
4.2 Payment.. All Fees are due thirty days from the invoice date. All payments due are in the currency specified in the Order Form. Payment can be made either by cheque or by wire transfer.
Payments made via wire transfer must include the following instructions:
Company: GROUPBY INC.
Institution: TD Canada Trust
Address: 299 Port Union Road, Scarborough, ON, M1C 2L3
Institution Number: 004
ABA/Swift code – TDOMCATTTOR
Transit Number: 18572
Account Number (Canadian Funds): 06745218090
Account Number (US Funds): 06747304500
Branch manager : Mary Tion 416-286-3313 x 250
4.3 Taxes.. Customer is responsible for any Taxes, and Customer will pay GroupBy for the Software without any reduction for such amounts. If GroupBy is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides GroupBy with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to GroupBy, Customer must provide GroupBy with an official tax receipt or other appropriate documentation to support such withholding.
4.4 Invoice Disputes.. Any invoice disputes must be submitted prior to the invoice due date. If the parties determine that certain billing inaccuracies are attributable to GroupBy, GroupBy will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, GroupBy will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice.
4.5 Delinquent Payments.. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by GroupBy in collecting delinquent amounts, except where such delinquent amounts are due to GroupBy’s billing inaccuracies.
4.6 Purchase Orders.
a. Required. If Customer’s Ordering Document is a Quote, then a purchase order is required. If Customer’s Ordering Document is an Order Form, and Customer wants a purchase order number on its invoice, Customer will inform GroupBy and will issue a purchase order to GroupBy. If Customer requires a purchase order, and fails to provide the purchase order to GroupBy, then GroupBy will not be obligated to provide the Software until the purchase order has been received by GroupBy.
b. Not Required. If Customer’s Ordering Document is an Order Form, and Customer does not require a Purchase Order number to be included on the invoice, Customer must select “No” in the Purchase Order section of the Order Form. If Customer waives the Purchase Order requirement, then: (a) GroupBy will invoice Customer without a Purchase Order; and (b) Customer agrees to pay invoices without a Purchase Order.
The Products will be delivered by email to the technical contact specified on the Order Form.
6. Technical Support
6.1 Generally. Subject to Customer’s payment of the Fees, GroupBy will provide TS to Customer for the Products for the Support Period in accordance with the TSG in effect when the Products are ordered. Unless otherwise agreed in writing, to receive TS Customer must provide GroupBy with all reasonably required access to the Product in accordance with the TSG. Customer’s failure to provide such access will be at Customer’s own risk and without liability to GroupBy.
6.2 Software Updates. TS includes Updates. Customer’s use of Updates is subject to this Agreement and the Ordering Document.
6.3 Changes to TS. If GroupBy makes a material change to the TSG, GroupBy will notify Customer by either sending an email to the Customer Contacts or alerting Customer via the GBS Site. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify GroupBy via the GBS Site within thirty days after receiving notice of the change. If Customer notifies GroupBy as required, then Customer will remain governed by the TS in effect immediately prior to the change until the end of the then-current term for the TS. If the TS are renewed, they will be renewed under GroupBy’s then current TSG.
7. Confidential Information.
7.1 Obligations. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but with no less than a reasonable standard of care; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
7.2 Exceptions. Confidential Information does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
7.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
Customer agrees that GroupBy may include Customer’s name or Brand Features in a list of GroupBy customers. GroupBy will obtain written consent from customer prior to use of customer Brand Features use. Customer also agrees that GroupBy may verbally reference Customer as a customer of the GroupBy products or services that are the subject of this Agreement. This section is subject to Section 3.3.
9. Limited Warranty.
9.1 Limited Warranty. GroupBy warrants to Customer that: (a) Software will be free from defects in material and workmanship, and will substantially conform to all material aspects of the Documentation, for a period of ninety days from download of the software.
9.2 Exclusions. The limited warranty set forth in Section 9.1 above will not apply to defects or errors in the Software that are caused by: (i) Customer’s failure to follow GroupBy’s environmental, installation, operation or maintenance instructions or procedures in the Documentation;
9.3 Exclusive Remedy. GroupBy’s entire liability and Customer’s sole and exclusive remedy with respect to breach of the above warranty will be at GroupBy’s option: (a) repair of the Sotfware in accordance with the TSG; (b) refund of the purchase price paid for the Software.
10. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GROUPBY DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. GROUPBY DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED. THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
11. Term and Termination.
11.1 Term. Subject to Customer’s payment of Fees, the term of the license granted in this Agreement for any Product will begin on the Shipment Date and will continue for the License Term, unless terminated earlier as set forth below.
11.2 Termination for Breach. Either party may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
11.3 Effect of Termination.
a. Termination for GroupBy’s Breach. If the Agreement is terminated for GroupBy’s breach, the licenses granted herein regarding Customer’s use of the Product may, at Customer’s option, continue for the remainder of the License Term, subject to Customer’s continued compliance with this Agreement.
b. Termination for Customer’s Breach. If the Agreement is terminated for Customer’s breach, then: (i) the License Term and all other rights and licenses granted by one party to the other, or any services provided by GroupBy to Customer, will cease immediately; (ii) upon request, each party will promptly return all Confidential Information of the other party; (iii) all payments owed by Customer to GroupBy are immediately due; and (iv) Customer must immediately cease use of the GroupBy Software.
c. Expiration of the License Term. Upon expiration of the license term the Customer can either (a) renew the Software for an additional term, or (b) uninstall and cease use of the Software
12. Limitation of Liability.
12.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
12.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO GROUPBY DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
10.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
13.1 By GroupBy. GroupBy will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim the Software used in accordance with the Documentation and this Agreement infringes or misappropriates any patent, copyright, trade secret or trademark of that third party.
13.2 Exceptions. The obligations set forth in Section 13.1 do not apply if the third party claim is caused by, or results from: (a) Customer’s combination or use of the Software with services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the Software; (b) modification of the Software by anyone other than GroupBy if the third party claim would have been avoided by use of the unmodified Software; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Software in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than GroupBy’s most current release of the Software if the third party claim would have been avoided by use of the most current release or revision.
13.3 By Customer. Customer will indemnify, defend, and hold harmless GroupBy from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of: (a) a third party claim made against GroupBy for infringement or misappropriation based on conduct by Customer as described in Section 13.2; or (b) Customer’s breach of Section 15 (Export Compliance).
13.4 Possible Infringement.
a. Repair, Replace, or Modify. If GroupBy reasonably believes the Software infringes a third party’s Intellectual Property Rights, then GroupBy will either: (a) procure for Customer the right to continue to use the Software; (b) replace the Software; or (c) modify the Software to avoid the alleged infringement.
b. Termination and Refund. If GroupBy does not reasonably believe the options in Section 13.4(a) are commercially reasonable, GroupBy may terminate the license for the allegedly infringing Software and refund a percentage of the Fees paid by Customer through the date a third party claim occurs for the allegedly infringing Software, per Section 13.1.
13.5 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14. Government Purposes. The Product is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplements thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is governed by the terms, conditions and covenants contained in the GroupBy standard commercial license agreement, as contained herein.
15. Export Compliance. Customer will comply with, and will obtain all prior authorization from the competent government authorities required by, the Export Control Laws. This Section 15 will survive termination or cancellation of this Agreement.
16.1 Notices. All notices must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
16.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except assignment of the Agreement in its entirety to an Affiliate but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
16.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction), (a) the party experiencing the change of control will provide written notice to the other party within 30 days after the change of control, and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
16.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
16.5 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
16.6 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
16.7 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
16.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
16.10 Governing Law. This Agreement is governed by Ontario law, excluding Ontario’s choice of law rules.
16.11 Amendments. Any amendments to this Agreement must be agreed upon in writing.
16.12 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
16.13 Entire Agreement. This Agreement, including any documents attached to this Agreement, and the Ordering Document, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement or in the Ordering Documents are hereby incorporated by this reference. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Ordering Document, the Agreement, and the terms located at any URL.
16.14 Counterparts. The parties may enter into this Agreement by executing the applicable Order Document, which may be executed in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
“Admin Console” means the web based administrative console through which Customer can configure and administer the Software, and link to GroupBy’s online help center.
“Affiliate” means, with respect to either GroupBy or Customer, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Brand Features Guidelines” means the guidelines for third party use of GroupBy’s Brand Features, accessed https://www.groupbyinc.com/brand (or other such URL as periodically provided by GroupBy).
“Confidential Information” means information disclosed by a party to the other party under this agreement that is marked as confidential or would normally be considered confidential under the circumstances. Information provided to GroupBy by Customer during GroupBy’s provision of TSS is Customer’s Confidential Information.
“Control” means control over greater than fifty percent of the voting rights or equity interests of a party.
“Customer Contacts” is defined in the TSG.
“Customer Content” means content owned by, or lawfully licensed to, Customer. Customer Content may be located on servers that are owned and operated by Customer, or operated on Customers behalf.
“Documents” means the number of documents Customer may index, and is set forth on the Ordering Document.
“Documentation” means GroupBy proprietary documentation in the form generally made available by GroupBy to its customers for use with the Software, including documentation provided via the Admin Console help center.
“Export Control Laws” means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
“Fees” means all applicable fees as set forth in the Ordering Document.
“GBS Site” means the secure site and online portal provided by GroupBy, accessed at http://www.support.groupbyinc.com (or such other URL as may be updated by GroupBy from time to time), which includes Documentation and an online knowledge base, and which links to related public content hosted elsewhere.
“Graphic” means an unaltered graphic in the form provided by GroupBy for the purpose of identifying that the search function is provided by GroupBy. Graphics may be accessed at: https://www.groupbyinc.com/brand (or other URL as may be updated by GroupBy).
“Hardware” means the computer hardware.
“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.
“Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
“License Term” means the period of time during which the Customer is authorized to use the Software, and will be set forth in the Ordering Document.
“Order Form” means the written GroupBy order form for the Products GroupBy will provide to Customer subject to this Agreement. All Order Forms are subject to this Agreement, and will contain at least: (i) Product name; (ii) Document limit, as applicable; (iii) price; (iv) type of TS provided and the Support Period; (v) the License Term; and (vi) a reference number.
“Ordering Document” means either a GroupBy Order Form, or a GroupBy Quote.
“Other Users” means Customer’s Affiliates, agents, contractors, or authorized end users.
“Product” means the Software and the Documentation.
“Quote” means a written document supplied by GroupBy specifying the Products GroupBy will provide to Customer subject to this Agreement. All Quotes are subject to this Agreement, and will contain at least: (i) Product name; (ii) Document limit, as applicable; (iii) price; (iv) type of TS provided and the Support Period; (v) the License Term; and (vi) a reference number.
“Shipment Date” means the date of shipment by GroupBy or its designated agent.
“Software” means the GroupBy proprietary computer software.
“Support Period” means the period of time, set forth on the Ordering Document, during which GroupBy will provide TS. Unless otherwise agreed to in writing, the Support Period will begin upon the later of: (i) GroupBy’s installation of the Products; or (ii) ten days following the Shipment Date.
“TS” means the technical support provided by GroupBy, in accordance with GroupBy’s TSG, for the Products identified in the Ordering Document for Support Period.
“TSG” means GroupBy’s then current Technical Support Guidelines, which may be may be accessed at the following URL: https://www.groupbyinc.com/technical-support (or other such URL as GroupBy provides periodically).
“Updates” is defined in the TSG.