GROUPBY MASTER SUBSCRIPTION AGREEMENT V3

This GroupBy Master Subscription Agreement (the “Agreement”) is made and entered into by and between GroupBy Inc. (“GroupBy”) and the business entity agreeing to these terms (“Customer”).   

This Agreement is effective as of the Order Effective Date on the Order Form that references this agreement.   If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. This Agreement governs Customer’s access to and use of the Service.

1. Provision of the Services.

1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application and provide the Services, solely as integrated into the Application, to End Users, and (c) use any Software provided by GroupBy as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.

1.2 Console. GroupBy will provide the Services to Customer. As part of receiving the Services, Customer will have access to the Admin Console, through which Customer may administer the Services.

1.3 Facilities and Data Transfer. All facilities used to store and process an Application and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where GroupBy processes and stores its own information of a similar type. GroupBy has implemented at least industry standard systems and procedures to ensure the security and confidentiality of an Application and Customer Data, protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and protect against unauthorized access to or use of an Application and Customer Data. GroupBy may process and store an Application and Customer Data in Canada, the United States or any other country in which GroupBy or its agents maintain facilities. By using the Services, Customer consents to this processing and storage of an Application and Customer Data. Under this Agreement, GroupBy is merely a data processor.

1.4 Accounts. Customer must have an Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify GroupBy as promptly as possible.

1.5 New Applications and Services. GroupBy may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.

1.6 Modifications.

(a) To the Services. Subject to Section 8.4, GroupBy may make commercially reasonable Updates to the Services from time to time. If GroupBy makes a material change to the Services, GroupBy will inform Customer, provided that Customer has subscribed with GroupBy to be informed about such change.

(b) To the Agreement. GroupBy may make changes to this Agreement and any linked documents from time to time. Unless otherwise noted by GroupBy, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. GroupBy will post any modification to this Agreement to the Terms URL.

1.7 Data Processing and Security Terms. Data Processing and Security Terms at Appendix C are incorporated in and form part of this Agreement.

2. Payment Terms.

2.1 Online Billing. GroupBy will issue an electronic bill to Customer for all charges accrued based on Customer’s use of the Services during the License Term, including any overage to the monthly record count and QPS threshold described in the Customer’s most recent Order Form. QPS overage will be calculated based on the 95th percentile score of Customer’s monthly QPS log ranked highest to lowest. Monthly record count will be calculated based on the maximum daily recorded record count for all Customer end points containing records. Customer will be responsible for all Fees up to the amount set in the Account and will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties. Customer will pay all Fees in accordance with the payment terms applicable to the Fees. At any point during the monthly billing cycle, customer may request the monthly QPS and record counts by emailing customer.support@groupbyinc.com.

2.2 Taxes. Customer is responsible for any Taxes, and Customer will pay GroupBy for the Services without any reduction for Taxes. If GroupBy is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides GroupBy with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states and provinces the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. 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.

2.3 Invoice Disputes & Refunds. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within 60 days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of GroupBy and will only be in the form of credit for the Services. Nothing in this Agreement obligates GroupBy to extend credit to any party.

2.4 Delinquent Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). GroupBy reserves the right to suspend Customer’s Account for any late payments.

3. Customer Obligations.

3.1 Compliance. Customer is solely responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data comply with the Acceptable Use Policy. GroupBy reserves the right to review the Application, Project, and Customer Data to ensure Customer’s compliance with the Acceptable Use Policy. Customer is responsible for ensuring all End Users comply with Customer’s obligations under the Acceptable Use Policy and the restrictions in Sections 3.3 and 3.5 below.

3.2 Privacy. Customer will protect the privacy and legal rights of its End Users under all applicable laws and regulations, which includes a legally adequate privacy notice communicated from Customer. Customer may have the ability to access, monitor, use, or disclose Customer Data submitted by End Users through the Services. Customer will obtain and maintain any required consents from End Users to allow Customer’s access, monitoring, use and disclosure of Customer Data. Further, Customer will notify its End Users that any Customer Data provided as part of the Services will be made available to a third party (i.e. GroupBy) as part of GroupBy providing the Services.

3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; (e) use the Services to operate or enable any telecommunications service or in connection with any Application that allows End Users to place calls or to receive calls from any public switched telephone network; or (f) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State or any other similar regulatory restrictions in any other jurisdiction. Unless otherwise specified in writing by GroupBy, GroupBy does not intend uses of the Services to create obligations under HIPAA, and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from GroupBy.

3.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license instead governs Customer’s agreement with GroupBy for the specific included third party components of the Services, or use of the Services (as may be applicable).

3.5 Documentation. GroupBy may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.

3.6 DMCA Policy. GroupBy provides information to help copyright holders manage their intellectual property online, but GroupBy cannot determine whether something is being used legally or not without their input. GroupBy responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If Customer thinks somebody is violating Customer’s or its End Users’ copyrights and wants to notify GroupBy it can do so in accordance with the notice provision of this Agreement.

3.7 Application and No Multiple Accounts, Bills, Tokens. Any Application must have material value independent from the Services. GroupBy has no obligation to provide multiple bills, Tokens (if applicable), or Accounts to Customer under the Agreement.

4. Suspension and Removals.

4.1 Suspension/Removals. If Customer becomes aware that any Application, Project (including an End User’s use of a Project), or Customer Data violates the Acceptable Use Policy, Customer will immediately suspend the Application or Project (if applicable), remove the applicable Customer Data or suspend access to an End User (as may be applicable). If Customer fails to suspend or remove as noted in the prior sentence, GroupBy may specifically request that Customer do so. If Customer fails to comply with GroupBy’s request to do so within 24 hours, then GroupBy may suspend GroupBy accounts of the applicable End Users, disable the Project or Application, and/or disable the Account (as may be applicable) until such violation is corrected.

4.2 Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then GroupBy may automatically suspend the offending End User account, Application, Project, or the Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If GroupBy suspends an End User account, Application, Project, or the Account, for any reason, without prior notice to Customer, at Customer’s request, GroupBy will provide Customer the reason for the suspension as soon as is reasonably possible.

5. Intellectual Property Rights; Use of Customer Data; Feedback.

5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, 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. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and GroupBy owns all Intellectual Property Rights in the Services and Software.

5.2 Use of Customer Data. GroupBy may use Customer Data and Applications only to provide the Services to Customer and its End Users and to help secure and improve the Services. For instance, this may include identifying and fixing problems in the Services, enhancing the Services to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost.

5.3 Feedback. If Customer provides GroupBy feedback or suggestions about the Services, then GroupBy may use that information without obligation to Customer, and Customer hereby irrevocably assigns to GroupBy all right, title, and interest in that feedback or those suggestions.

6. Technical Support Services

6.1 By Customer. Customer is responsible for technical support of its Applications and Projects.

6.2 By GroupBy. Subject to payment of applicable support Fees, GroupBy will provide Technical Support Services to Customer during the License Term in accordance with the Technical Support Services Guidelines, incorporated into this agreement as Appendix D. Certain Technical Support Services levels include a minimum recurring Fee as described in the “Fees” definition below. If Customer downgrades its Technical Support Services level during any calendar month, GroupBy may continue to provide Technical Support Services at the same level and Technical Support Services Fees before the downgrade for the remainder of that month.

6.3 Deprecation Policy. GroupBy will announce if it intends to discontinue or make backwards incompatible changes to the Services by notice to Customer in accordance with this Agreement. GroupBy will use commercially reasonable efforts to continue to operate those Services versions and features identified in this Agreement without these changes for at least one year after that announcement, unless (as GroupBy determines in its reasonable good faith judgment):

(a) required by law or third party relationship (including if there is a change in applicable law or relationship), or

(b) doing so could create a security risk or substantial economic or material technical burden.

The above policy is the “Deprecation Policy.”

7. Confidential Information.

The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and its End Users’ use of the Services.

8. Term and Termination.

8.1 Agreement Term. This Agreement will remain in effect for the License Term.

8.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 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 90 days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, GroupBy may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 8.2(i), (ii), and/or (iii).

8.3 Termination for Inactivity. GroupBy reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days, Customer: (a) has failed to access the Admin Console; (b) a Project has no active virtual machine or storage resources or an Application has not served any requests; and (c) no electronic bills are being generated.

8.4 Effect of Termination. If the Agreement expires or is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees (including Taxes) owed by Customer to GroupBy are immediately due upon receipt of the final electronic bill; (iii) Customer will delete the Software, any Application, Instance, Project, and any Customer Data; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

9. Publicity.

Customer is permitted to state publicly that it is a customer of the Services. If Customer wants to display GroupBy Brand Features in connection with its use of the Services, Customer must obtain written permission from GroupBy. GroupBy may include Customer’s name or Brand Features in a list of GroupBy customers, online or in promotional materials. GroupBy may also verbally reference Customer as a customer of the GroupBy products or services that are the subject of this Agreement. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.

10. Representations.

Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. GroupBy warrants that it will provide the Services in accordance with the applicable Service Level Agreement (if any).

11. Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GROUPBY AND ITS SUPPLIERS DO 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 AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER GROUPBY NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.

12. Limitation of Liability.

12.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR GROUPBY’S SUPPLIERS, 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR GROUPBY’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO GROUPBY DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

12.3 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. Indemnification.

13.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify GroupBy and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer’s, or its End Users’, use of the Services in violation of the Acceptable Use Policy.

13.2 By GroupBy. GroupBy will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) GroupBy’s technology used to provide the Services (excluding any open source software) or (b) any GroupBy Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.

13.3 Exclusions. This Section 13 will not apply to the extent the underlying Allegation arises from:

(a) the indemnified party’s breach of this Agreement;

(b) modifications to the indemnifying party’s technology or Brand Features by anyone other than the indemnifying party;

(c) combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party; or

(d) use of non-current or unsupported versions of the Services or Brand Features;

13.4 Conditions. Sections 13.1 and 13.2 will apply only to the extent:

(a) The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 13.1 or 13.2 (as applicable) will be reduced in proportion to the prejudice.

(b) The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

13.5 Remedies.

(a) If GroupBy reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then GroupBy may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.

(b) If GroupBy does not believe the remedies in Section 13.5(a) are commercially reasonable, then GroupBy may suspend or terminate Customer’s use of the impacted Services.

13.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 13 states the parties’ only rights and obligations under this Agreement for Intellectual Property Rights-related Allegations and Third-Party Legal Proceedings.

14. Miscellaneous.

14.1 Notices. All notices must be in writing and addressed to the other party as follows: (a) to GroupBy at 2 Berkeley Street, Suite 210, Toronto, Ontario M5A 4J5, accounts@groupbyinc.com, and (b) to Customer at the address as specified on the Customer’s most recent GroupBy Order Form or Online Order Form on file with GroupBy. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

14.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

14.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give 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 30 days after it receives that written notice.

14.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

14.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

14.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

14.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

14.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

14.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

14.10 Governing Law. All claims arising out of or relating to this Agreement or the Services will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding applicable conflicts of laws rules therein. The parties each hereby attorn to the exclusive jurisdiction of the courts of the Province of Ontario in the City of Toronto with regards to all claims arising under this Agreement and the Services hereunder. The partners consent to the personal jurisdiction of such courts.

14.11 Amendments. Except as set forth in Section 1.6(b), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

14.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 7, 8.5, 12, 13 and 14.

14.13 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, GroupBy may provide an updated URL in place of any URL in this Agreement.

14.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.

14.15 Definitions.

• “Acceptable Use Policy” means the acceptable use policy set forth at Appendix A to this Agreement.

• “Account” means Customer’s GroupBy account as specified on a GroupBy Online Order Form or Order Form.

• “Admin Console” means the online console(s) and/or tool(s) provided by GroupBy to Customer for administering the Services.

• “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

• “Allegation” means an unaffiliated third party’s allegation.

• “Application(s)” means any web or other application Customer creates using the Services, including any source code written by Customer to be used with the Services, or hosted in an Instance.

• “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.

• “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that the recipient already rightfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party. Customer Data is considered Customer’s Confidential Information.

• “Control” means control of greater than 50% of the voting rights or equity interests of a party.

• “Customer Data” means content provided, transmitted, or displayed via the Services by Customer or its End Users; but excluding any data provided as part of the Account.

• “Customer Solutions Services” means , integration, configuration, and training services other than Technical Support Services, that are performed by GroupBy for Customer pursuant to an Order Form.

• “Data Processing and Security Terms” means the terms set forth at Appendix C to this Agreement.

• “Documentation” means the GroupBy documentation (as may be updated from time to time) in the form generally made available by GroupBy to its customers for use with the Services as set forth at: http://docs.cloud.groupbyinc.com.

• “Emergency Security Issue” means either: (a) Customer’s or its End User’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other Customers’ or its End Users’ use of the Services; or (iii) any network or servers used to provide the Services; or (b) unauthorized third party access to the Services.

• “End Users” means the individuals Customer permits to use the Services, Application, or Project.

• “Fees” means the applicable fees for each Service and any applicable Taxes as specified on the Order Form.

• “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.

• “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued thereunder.

• “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

• “Instance” means a virtual machine instance, configured and managed by Customer, which runs on the Services. Instances are more fully described in the Documentation.

• “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.

• “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.

• “License Term” means the term of the Agreement, which will begin on the Effective Date and continue until the Agreement is terminated as set forth herein.

• “Project” means a grouping of computing, storage, and API resources for Customer, and via which Customer may use the Services. Projects are more fully described in the Documentation.

• “Service Level Agreement” means the Service Level Agreement set forth at Appendix B to this Agreement.

• “Software” means any downloadable tools, software development kits or other such proprietary computer software provided by GroupBy in connection with the Services, which may be downloaded by Customer, and any updates GroupBy may make to such Software from time to time.

• “Taxes” means any duties, customs fees, or taxes (other than GroupBy’s income tax) associated with the purchase of the Services, including any related penalties or interest.

• “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

• “Token” means an alphanumeric key that is uniquely associated with Customer’s Account.

• “Technical Support Services” means the technical support service provided by GroupBy to the administrators pursuant to the Technical Support Services Guidelines.

• “Technical Support Services Guidelines” means GroupBy’s technical support services guidelines then in effect for the Services.

• “Updates” means the periodic software updates provided by GroupBy to Customer from time to time. Updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.

APPENDIX A – ACCEPTABLE USE POLICY

Use of the Services is subject to this Acceptable Use Policy.

Capitalized terms have the meaning stated in the applicable agreement between Customer and GroupBy.

Customer agrees not to, and not to allow third parties (including End Users) to use the Services:

• to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);

• to engage in, promote or encourage illegal activity;

• for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);

• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;

• to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;

• to disable, interfere with or circumvent any aspect of the Services;

• to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings, spam or other similar solicitations; or

• to use the Services, or any interfaces provided with the Services, to access any other GroupBy product or service in a manner that violates the terms of service of such other GroupBy product or service.

APPENDIX B – SERVICE LEVEL AGREEMENT

During the Term of the GroupBy Cloud Platform License Agreement (the “Agreement”), the Covered Service will provide a Monthly Uptime Percentage to Customer of at least [99.95]% (the “SLA”). If GroupBy does not meet the SLA, and if Customer meets its obligations under this SLA, Customer will be eligible to receive the Financial Credits described below. This SLA states Customer’s sole and exclusive remedy for any failure by GroupBy to meet the SLA. Capitalized terms used in this SLA, but not defined in this SLA, have the meaning set forth in the Agreement.

Definitions

The following definitions apply to the SLA:

• “Covered Service” means: Searchandiser Cloud

• “Downtime” means:

• Loss of external connectivity and/or persistent disk access for all running Instances that are hosted across two or more zones combined with the inability to launch replacement Instances in any zone.

• Downtime does not include Scheduled Downtime.

• “Downtime Period” means a period of five consecutive minutes of Downtime. Intermittent Downtime for a period of less than five minutes will not be counted towards any Downtime Periods.

• “Financial Credit” means the following:

Monthly uptime percentage Percentage of monthly bill for the respective Covered Service which does not meet SLA that will be credited to future monthly bills of Customer

99.00% -< 99.95%   10%

95.00% -< 99.00%   25%

< 95.00%   50%

• “Monthly Uptime Percentage” means total number of minutes in a month, minus the number of minutes of Downtime suffered from all Downtime Periods in a month, divided by the total number of minutes in a month.

• “Maintenance Window” means a period of time when certain zones are taken offline for maintenance tasks. Customer may view the timing and duration of Maintenance Windows via the Admin Console.

• “Scheduled Downtime” means Downtime resulting from GroupBy performing maintenance on the Services during a Maintenance Window.

• ”Healthy Backend Instances” means Instances that are responding affirmatively to load balancing health checks.

Customer must request Financial Credit

In order to receive any of the Financial Credits described above, Customer must notify GroupBy technical support within thirty days from the time Customer becomes eligible to receive a Financial Credit. Customer must also provide GroupBy with server log files showing loss of external connectivity errors and the date and time those errors occurred. If Customer does not comply with these requirements, Customer will forfeit its right to receive a Financial Credit. If a dispute arises with respect to this SLA, GroupBy will make a determination in good faith based on its system logs, monitoring reports, configuration records, and other available information, which GroupBy will make available for auditing by Customer at Customer’s request.

Maximum Financial Credit

The aggregate maximum number of Financial Credits to be issued by GrouBy to Customer for any and all Downtime Periods that occur in a single billing month will not exceed [50]% of the amount due by Customer for the Covered Service for the applicable month. Financial Credits will be made in the form of a monetary credit applied to future use of the Service and will be applied within 60 days after the Financial Credit was requested.

SLA exclusions

The SLA does not apply to any: (a) features designated Alpha or Beta (unless otherwise set forth in the associated Documentation), (b) features excluded from the SLA (in the associated Documentation), or (c) errors: (i) caused by factors outside of GroupBy’s reasonable control; (ii) that resulted from Customer’s software or hardware or third party software or hardware, or both; (iii) that resulted from abuses or other behaviors that violate the Agreement; or (iv) that resulted from quotas applied by the system and/or listed in the Admin Console.

APPENDIX C – DATA PROCESSING AND SECURITY TERMS

1. Introduction

These Data Processing and Security Terms (these “Terms”) reflect the parties’ agreement with respect to the processing of Customer Data under the GroupBy Cloud Platform License Agreement between Customer and Groupby (the “Agreement”), including with respect to Customer Personal Data in accordance with the Directive and the National Data Protection Legislation (if applicable).

2. Definitions

2.1 Capitalized terms used but not defined in these Terms will have the meaning set out in the Agreement. In these Terms:

(a) “Ads” means online advertisements displayed by GroupBy through the Services to Customer or End Users (other than those requested by Customer). But for clarity, Ads do not include communications from GroupBy to Customer that refer to or promote the Services.

(b) “Customer Personal Data” means the personal data that is contained within the Customer Data.

(c) “Data Incident” means any unlawful or unauthorized destruction, loss, alteration, access, use, or disclosure of Customer Personal Data that compromises the security, privacy, or confidentiality of that Customer Personal Data.

(d) “Directive” means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.

(e) “GroupBy Group” means GroupBy and any of its Affiliates that may be used to provide the Services to Customer.

(f) “Instructions” means instructions provided by Customer via the Admin Console, instructions initiated by the Customer and End Users in their use of the Services, the written instructions of the Customer specified in the Agreement (as amended or replaced) and any subsequent written instructions from the Customer to GroupBy and acknowledged by GroupBy.

(g) “National Data Protection Legislation” means the national provisions adopted pursuant to the Directive, to implement the Directive in the country in which the Customer is established, or the Federal Data Protection Act of 19 June 1992 (Switzerland), as applicable.

(h) “Safe Harbor Privacy Principles” means the U.S. Department of Commerce Safe Harbor framework requirements as set out at the following URL: http://export.gov/safeharbor/eu/eg_main_018475.asp or any replacement framework or URL from time to time.

(i) “Security Measures” has the meaning given in Section 4.1 of these Terms.

(j) “Subprocessors” means” the GroupBy Group and Third Party Suppliers.

(k) “Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.

(l) “Third Party Suppliers” means the third party suppliers engaged by the GroupBy Group for the purposes of processing Customer Data in the context of the provision of the Services.

2.2 The terms “personal data”, “processing”, “data subject” “controller” and “processor” have the meanings ascribed to them in the Directive.

3. Processing of Customer Personal Data

3.1 Processor. For the purposes of the National Data Protection Legislation (to the extent applicable), with respect to Customer Personal Data: (a) the parties acknowledge and agree that GroupBy shall be a processor and shall comply with its obligations as a processor under the Agreement, (b) where Customer is the controller with respect to certain Customer Personal Data, it shall comply with its obligations as a controller, and (c) where a third party is the controller (either alone or jointly with the Customer) with respect to certain Customer Personal Data, Customer represents and warrants to GroupBy that it is authorized to instruct GroupBy and otherwise act on behalf of such third party in relation to the Customer Personal Data in accordance with the Agreement.

3.2 Scope of Processing.

(a) Customer instructs GroupBy to process Customer Personal Data for the following purposes: (i) to comply with Instructions, (ii) to provide the Services to Customer and its End Users, and (iii) to otherwise exercise GroupBy’s rights and fulfill its obligations under the Agreement.

(b) During the Term and thereafter, GroupBy will only process Customer Personal Data in accordance with Section 3.2(a) and will not process Customer Personal Data for any other purpose. In addition, GroupBy will not process Customer Personal Data to: (i) improve Services that are not offered to Customer (except in order to secure, and to prevent abuse of, the Services), (ii) develop new products or services (beyond the Services), or (iii) target or serve Ads.

4. Data Security

4.1 Security Measures. GroupBy will implement appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, or unauthorized disclosure or access (the “Security Measures”).

4.2 GroupBy Staff and Subprocessors. GroupBy will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subprocessors to the extent applicable to their scope of performance.

4.3 Data Incidents. GroupBy will maintain an incident response program appropriate to respond to Data Incidents. If GroupBy has reason to believe that a Data Incident has occurred, GroupBy will: (a) promptly investigate and take steps to remediate it, and (b) notify Customer of the Data Incident as soon as reasonably possible once GroupBy has established the nature of the Data Incident and taken measures to secure Customer Personal Data against any imminent harm (consistent with the requirements of law enforcement authorities). GroupBy will so notify Customer by an email sent to the email address provided by Customer in the Agreement or by direct Customer communication (e.g. by phone call or an in-person meeting). Customer is solely responsible for fulfilling any third party notification obligations.

5. Data Correction, Blocking, Exporting and Deletion

During the Term, GroupBy will provide Customer with the ability to correct, block, export and delete Customer Data in a manner consistent with the functionality of the Services. Once Customer deletes Customer Data via the Services such that the Customer Data is not recoverable by Customer (the “Customer-Deleted Data”), GroupBy will delete (or render permanently inaccessible) the Customer-Deleted Data within a maximum period of 180 days.

6. Access to Data

GroupBy will make available to Customer the Customer Data in accordance with the terms of the Agreement in a manner consistent with the functionality of the Services, including any applicable Service Level Agreement. To the extent Customer, in its use and administration of the Services, does not have the ability to amend or delete Customer Data (as required by applicable law), or migrate Customer Data to another system or service provider, GroupBy will, at Customer’s reasonable expense, comply with any reasonable requests by Customer to assist in facilitating such actions to the extent GroupBy is legally permitted to do so and has reasonable access to the relevant Customer Data.

7. Data Transfers

7.1 Data Transfers. As part of providing the Services, GroupBy may transfer, store and process Customer Data in Canada, the United States or any other country in which GroupBy or its agents maintain facilities.

7.2 Safe Harbor. During the Term, GroupBy will ensure that it will adopt compliance solutions that achieves compliance with the terms of the Directive for transfers of personal data to a third country. GroupBy will ensure that Subprocessors are bound by written agreements that require them to provide at least the level of data protection required by the Safe Harbor Privacy Principles.

8. Subprocessors

8.1 Subprocessors. GroupBy may engage Subprocessors to provide limited parts of the Services.

8.2 Processing Restrictions. GroupBy will ensure that Subprocessors only access and use Customer Data in accordance with the terms of the Agreement.

8.3 Customer Consent to Subprocessing. Customer consents to GroupBy subcontracting the processing of Customer Data to Subprocessors.

8.4 Additional Information. At the written request of the Customer, GroupBy will provide additional information regarding Third Party Suppliers and their locations.

9. Third Party Requests

Customer is primarily responsible for responding to Third Party Requests. GroupBy will, at Customer’s reasonable expense, and only to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) if the information is solely held by GroupBy and reasonably accessible by GroupBy, provide Customer with the information or tools required for Customer to respond to the Third Party Request. Notwithstanding the foregoing, subsections (a), (b) and (c) above will not apply if GroupBy determines that complying with those subsections could: (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; and/or (iii) lead to death or serious physical harm to an individual. Customer will first seek to obtain the information required to respond to Third Party Requests on its own, and will contact GroupBy only if it cannot reasonably obtain such information.

APPENDIX D – TECHNICAL SUPPORT GUIDELINES (“TSG”)

The following technical support guidelines (“Guidelines”) apply to support services for the GroupBy solution provided by GroupBy to Customer.

1. Definitions.

1.1 “Business Day” means any day other than Saturday, Sunday or a regional holiday in the US.

1.2 “Business Hour” means a time period of one hour within the Hours of Operation.

1.3 “Hours of Operation” means 9:00 a.m. to 5:00 p.m. Eastern Time on Business Days.

1.4 “Customer Contacts” means administrators designated in the Administrative Console.

1.5 “GroupBy Technical Support Personnel” mean the GroupBy representatives responsible for handling technical support requests.

1.6 “Priority 1 Request” is a Request to resolve a situation where Customer is unable to access or use the Service for the majority of its End Users for a period of time greater than fifteen minutes.

1.7 “Priority 2 Request” is a Request to resolve an error, bug, or malfunction that causes significant degradation of a user-facing feature, or has high business impact, without causing a Priority 1 issue.

1.8 “Priority 3 Request” is a support request that is not: (a) a Priority 2 Request; (b) a Priority 1 Request; or (c) a Feature Request.

1.9 “Standard Request” is a Request to resolve a Priority 2 or Priority 3 problem.

1.10 “Feature Request” means a Request that is unique to Customer and is not a Priority 3 Request, Priority 2 Request, or a Priority 1 Request (as determined in the sole discretion of GroupBy), which includes but is not limited to requests by a Customer Contact to incorporate a new feature or enhance an existing feature of the Service.

1.11 “Request” means a request from Customer Contact to GroupBy Technical Support Personnel for technical support to resolve a question or problem report regarding the Service.

1.12 “Support Incident” means a single request for assistance to resolve one Request.

1.13 “Business Critical Support” means an enhanced level of support providing enhanced Priority 1 Request response time and availability of technical support.

1.14 “GroupBy Support Site” (or “GBS Site”) means the online support portal provided by GroupBy for use by its Customers, and which includes the web form for submitting support Requests (currently at www.support.groupbyinc.com, or such other URL as may be updated by GroupBy from time to time), and related public content hosted elsewhere and directly linked from the URL provided.

2. Accessing Support.

2.1 Customer Efforts to Fix Errors. Prior to making a request to GroupBy, Customer will use reasonable efforts to fix any error, bug, malfunction or network connectivity defect without escalation to GroupBy. Thereafter, a Customer Contact entitled to access support may submit a written request for technical support through the online help center accessible at www.support.groupbyinc.com or such URL as GroupBy may provide.

2.2 Characterization of Requests. Upon receiving a request from Customer Contact, GroupBy will determine in its sole discretion whether the request is a Priority 1 Request, Priority 2 Request, Priority 3 Request or a “Feature Request” as defined in 1.6, 1.7, 1.8 and 1.10.

2.3 Support Hours and Target Initial Response Times. For Priority 1 Requests GroupBy will attempt to respond to properly submitted support requests within 1 hour of receipt of the Request on a 24×7 basis. For access during Business Hours, GroupBy will provide access via phone. After Business Hours, support is only available if specifically triggered by Customer Contact via the designated instructions provided at the time service is established and as documented in the GBS Site. They may be updated from time to time thereafter by notification to Customer Contact.

For Priority 2 Requests GroupBy will attempt to respond to properly submitted support requests within one Business Day during Business Hours. E-mail will be used as the medium of communication once a Request is initiated by Customer Contact from the web form at the GBS Site.

For Priority 3 Requests GroupBy will attempt to respond to properly submitted support requests within one Business Day during Business Hours. E-mail will be used as the medium of communication once a Request is initiated by Customer Contact from the web form at the GBS Site.

GroupBy will use commercially reasonable efforts to provide a fix.

2.4 Procedures for Acknowledgement and Resolution of Requests. When making a Request, Customer will provide requested diagnostic information including but not limited to: (i) describing the problem, the configuration, and Customer’s network; (ii) providing relevant data; and (iii) communicating further via email or telephone to answer questions and assist GroupBy Technical Support Personnel as appropriate.

2.5 Characterization of Requests. Upon receiving a Request from a Customer Contact, GroupBy Technical Support Personnel will in their sole discretion characterize each Request as a Priority 1 Request, Priority 2 Request, Priority 3 Request, or a Feature Request. Any such determination made by GroupBy will be final and binding on Customer.

2.6 Request Acknowledgement. A response to a Request may consist only of receipt of and acknowledgement by GroupBy of the Request and may not include a resolution of that Request. Customer acknowledges and understands that the Services provided by GroupBy may not be perfect or error-free and that, despite GroupBy’s commercially reasonable efforts, GroupBy may be unable to provide answers to or resolve some or all Requests. GroupBy makes no promises, guarantees or assurances of any kind that it will be able to resolve all of Customer’s Requests.

2.7 Feature Requests. If a Request is deemed by GroupBy to be a Feature Request, GroupBy will log the Feature Request for consideration to add to a future update or release of the Service and will consider the matter closed. GroupBy will be under no obligation to respond to or resolve any Feature Request or to include any such Feature Request in any future update or release.

 3. General Provisions.

3.1 Updates to Guidelines. These Guidelines may be updated by GroupBy from time to time, by posting the updated Guidelines to this URL, or other such URL as provided by GroupBy from time to time.

 3.2 Language. The parties agree that all support provided by GroupBy to Customer pursuant to these Guidelines will be provided in the English language.

3.3 Term of Support. The support services provided by GroupBy pursuant to these Guidelines will be limited to the term of the Agreement entered into by Customer and GroupBy. GroupBy will have no obligation to provide any support services to Customer after the expiration or termination of such Agreement.

APPENDIX E – CUSTOMER SOLUTIONS SERVICES

1. Customer Solutions Services. GroupBy will provide Customer Solutions Services as described in the Customer Solutions Services section in the applicable Order Form.

1.2 Facilities. Customer shall provide GroupBy with any facilities, equipment or other resources as are reasonably required by GroupBy to perform the Customer Solutions Services without charge

1.3 Warranty. GroupBy warrants that the Customer Solutions Services will be provided with reasonable skill and care conforming to generally accepted software industry standards. 

1.4 Plan. Within ninety (90) business days of the billing start date on the Order Form, GroupBy and Customer will develop a mutually agreement project plan to complete the Customer Solutions Services.

1.5 Documentation. If GroupBy provides Customer with any original software or documentation as a result of the provision of Services then: (a) it will remain the property of GroupBy, including any copyright therein, and (b) GroupBy grants Customer a perpetual, non-exclusive, non-transferable license to use that software or documentation for its internal data processing purposes. 

1.7 Material. Nothing in these Terms will prevent (a) either party from independently developing materials which are competitive, irrespective of their similarity to the work which is delivered to the Customer pursuant to the Customer Solutions Services (b) either party’s personnel from making use of the know-how acquired, principles learned or experience gained during the performance of the Services.

1.8 Soliciting Employees. During the period of any Service and for a period of 6 (six) months after neither party will directly or indirectly, solicit, induce away from the other, employ or sub-contract any employee or sub-contractor of the other who has been involved in work to which the Customer Solutions Services relates.

1.9 Confidential Information. Customer or GroupBy may from time to time disclose to the other party Confidential Information relating to its business and affairs. Neither party will disclose Confidential Information of the other to any third party, other than to its employees and authorized sub-contractors, without the express written consent of the other party, nor make use of any Confidential Information other than in the performance of these Terms. Each party will use at least the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information.