GROUPBY MASTER SUBSCRIPTION AGREEMENT

This GroupBy Master Subscription Agreement (the “Agreement”) is a legally binding agreement made and entered into by and between GroupBy Inc. (“GroupBy”) and the business, government or other entity agreeing to these terms (“Customer”). The term “Customer” referenced herein refers to the aforementioned legal entity, and its officers, directors, agents and employees; or you, as individual, only in the case of a non-legal entity. This Agreement is effective as of the Order Effective Date on the order form (the “Order Form”) that references this Agreement. This Agreement governs Customer’s access to and use of the Services.  Capitalized terms not defined herein will have the meaning ascribed to them in Appendix A attached hereto or the Order Form.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, IN ANY FORM OR MEDIA, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT CUSTOMER AGREES TO BE BOUND BY IT. IF CUSTOMER DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY TO THIS AGREEMENT, CUSTOMER SHOULD NOT ACCESS OR USE THE SERVICES. CUSTOMER CONFIRMS THAT CUSTOMER UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY IT BY SIGNING A CORRESPONDING ORDER FORM.

You acknowledge and agree that you have reviewed and agree to GroupBy’s privacy statement located at https://www.groupbyinc.com/privacy-statement. If you are entering into this Agreement on behalf of (and for use on behalf of) Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to the terms of this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.

GroupBy may revise this Agreement (and any Appendices hereto or linked documents referenced herein) from time to time and at our sole discretion; provided that such changes will not materially impact this Agreement or its scope, or reduce GroupBy’s obligations to Customer. When such changes are effected, GroupBy will publish an updated version at the URL defined in your Order Form. Customers continued use of the Services will be deemed acceptance by Customer of any such revisions.

1. Subscription Service.

1.1 License Grant . Subject to the terms of this Agreement and in consideration for the payment of fees set forth on the applicable Order Form, solely during the applicable License Term (defined in Section 8.1), GroupBy hereby grants to Customer a non-exclusive, non-transferable license, subject to the limitations set forth in the applicable Order Form, to: (a) access and use the Subscription Service solely for Customer’s internal business purposes, (b) integrate the Subscription Service into any Application, and provide the Subscription Service, solely as integrated into the Application, to End Users, and (c) use any Software provided by GroupBy as part of the Subscription Service. Customer may not sublicense or transfer these rights to any third party, or permit any third party to use the Subscription Service except as expressly permitted under this Agreement.

1.2 Admin Console. “Admin Console” means the online console(s) and/or tool(s) provided by GroupBy to Customer for administering the Subscription Service. As part of receiving the Subscription Service, Customer will have access to the Admin Console, through which Customer may administer the Subscription Service.

1.3 Accounts. Customer must have a GroupBy account (“Account”), as specified in the applicable Order Form, and an alphanumeric key that is uniquely associated with Customer’s Account (“Token”) to use the Subscription Service.  Customer is responsible for: (i) the information it provides to create the Account, (ii) the security of the Token and (iii) Customer’s user names and passwords for the Account. Customer will not disclose or make available to any third party such Tokens, user names or passwords. Customer shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Tokens, user names, passwords or the Subscription Service. Customer is fully responsible for all activities that occur in connection with the use of Customer’s Tokens, user names and passwords. Without limiting the foregoing, Customer is responsible for all charges applicable to data and information transmitted to and stored under Customer’s account on the Subscription Service. GroupBy will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Customer Data that results from any third party’s access to or use of Tokens, user names, or passwords in Customer’s possession. Customer shall notify GroupBy immediately if Customer becomes aware of any unauthorized use of its Account, user names, passwords, or Tokens, or the need to deactive passwords, and provide to GroupBy its reasonable cooperation to remedy such unauthorized disclosure or use.  Passwords are subject to cancellation or suspension by GroupBy upon misuse of passwords by Customer.

1.4 Modifications to the Service. GroupBy may: (i) make new applications, tools, features or functionality available from time to time through the Subscription Service and (ii) add new services to the Subscription Service from time to time, the use of which may be contingent upon Customer’s agreement to additional terms. Furthermore, GroupBy may, in its sole discretion, make commercially reasonable periodic software updates (“Updates”) to the Subscription Service from time to time, such as bug fixes, enhanced functions, or new software modules. If GroupBy makes a material change to the Subscription Service, GroupBy will make commercially reasonable efforts to inform Customer, provided that Customer has subscribed with GroupBy to be informed about such change. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by GroupBy regarding future functionality or features.

2. Payment Terms.

Customer will pay the applicable fees for each of the Services specified on the applicable Order Form (“Fees”). GroupBy will issue an electronic invoice to Customer for all charges accrued based on Customer’s use of the Services during the License Term, including any overage to the monthly threshold for the QPS, Record Counts and Managed Products 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 combined daily recorded record count for all Customer end points containing records in the aggregate. Product overage will be calculated based on the fee specified in the Order Form for each Product over the Managed Product limit. 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 set forth in the applicable Order Form. At any point during the monthly billing cycle, Customer may request the monthly QPS and record counts by emailing customer.support@groupbyinc.com. 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. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein, and Customer shall notify GroupBy in writing of the reason for Customer’s dispute. All fees are exclusive of all taxes and similar fees now in force, all of which Customer will be responsible for and will pay in full, except for taxes based solely on GroupBy’s net income.

3. Customer Obligations.

3.1 Restrictions. Customer is solely responsible for its Applications, Projects, and Customer Data (“Activities”) and for making sure its Activities comply with the Acceptable Use and Platform Policy attached hereto as Appendix B. GroupBy reserves the right to review the Activities to ensure Customer’s compliance with the same. GroupBy does not guarantee the accuracy, integrity or quality of such Activities.   Customer is responsible for all Activities conducted under its Service. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited.  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 Software or the Services (except to the extent such restriction is expressly prohibited by applicable law) or access the Software or the Services in order to build a competitive product or service or to copy any ideas, features, functions or graphics of the Software or the Services; (b) copy, license, sell, transfer, lease, time-share, service bureau, or assign the license(s) to the Services provided under this Agreement to any third-party, except as may be expressly set forth in the applicable Order Form; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Activities to simulate or act as a single Activity or otherwise access the Services in a manner intended to avoid incurring Fees; or (e) 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. Customer shall be liable for any breach of this Agreement by any of its End Users.

3.2 Third Party Components. In the event any third party components (which may include open source software) of the Services are subject to separate license agreement(s), , that third party license will govern for the specific included third party components of the Services.

3.3 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.

3.4 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 a third party is violating Customer’s copyrights and wants to notify GroupBy it can do so in accordance with the notice provision of this Agreement.

3.5 Application; No Multiple Accounts, Bills, or Tokens. Any Application must have material value independent from the Services. GroupBy has no obligation to provide multiple bills, Tokens, or Accounts to Customer.

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

4.1 Intellectual Property Rights. Customer acknowledges and agrees that as between GroupBy and Customer, all right, title and interest in and to the Services and the Software and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain GroupBy’s or its licensors’, and GroupBy in no way conveys any right or interest in the Services other than a limited license to use in accordance herewith. GroupBy retains ownership of all right, title and interest in and to all GroupBy Data.

4.2 Use of Customer Data. GroupBy will collect, use, display, and transmit the Customer Data and access and use the Applications to provide the Services to Customer 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. GroupBy acknowledges that Customer Data is Customer Confidential Information.  Customer acknowledges and agrees that GroupBy shall have the right to use any information, analysis, statistics and other data generated by the Subscription Service (or derived from Customer’s use of the Subscription Service) in order to compile aggregated statistics about the Subscription Service for its own internal purposes only. 

4.3 Feedback. If Customer provides GroupBy enhancement requests, feedback, recommendations 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.

4.4 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 Subscription Services, Customer consents to this processing and storage of an Application and Customer Data. Under this Agreement, GroupBy is merely a Data Processor (as defined in Appendix C, Data Processing and Security Addendum, which is incorporated herein by reference).

5. Technical Support Services

5.1 Technical Support Services. Customer is responsible for technical support of its Applications and Projects. Subject to payment of applicable support Fees, GroupBy will provide technical support services (“Technical Support Services”) for the Subscription Service to Customer during the License Term in accordance with the Technical Support Services Guidelines then in effect, where the current Technical Support Services Guidelines are incorporated into this agreement as Appendix D. Certain Technical Support Services levels include a minimum recurring fee.

5.2 Discontinuation of Functionality. GroupBy will announce if it intends to discontinue or make backwards incompatible changes to the Subscription Service by notice to Customer in accordance with this Agreement. GroupBy will use commercially reasonable efforts to continue to operate those Subscription Service 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.

6. Confidential Information.

6.1 Confidential Information. “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. Confidential Information does not include information (a) that the recipient already rightfully knew, (b) that becomes public through no fault of the recipient, (c) that was independently developed by the recipient, or (d) that was lawfully given to the recipient by a third party. Customer Data is considered Customer’s Confidential Information.

6.2 Duty of Care. 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. Each party accepts responsibility for the actions of its representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. To the extent permitted by applicable law, the recipient shall promptly notify the discloser upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the discloser in enforcing its rights. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by 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 (“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.

7. Term and Termination.

7.1 Agreement Term. This Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth herein. The term of each Order Form for the Service shall be set forth on the Order Form (the “License Term”).

7.2 Termination for Breach. Either party may terminate this Agreement or any Order Form 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; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Termination of an Order Form shall not be deemed a termination of this Agreement.  Termination of this Agreement shall, however, terminate all outstanding Order Forms. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form. 

7.3 Termination for Inactivity. GroupBy reserves the right to terminate the Subscription Service and the applicable Order Form and this Agreement, 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.

7.4 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 and any taxes owed by Customer to GroupBy are immediately due upon receipt of the final invoice; (iii) Customer will cease using and delete the Software, any Application, Instance, Project, and any Customer Data; and (iv) upon request, each party will return or destroy all Confidential Information of the other party. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.. After such termination, GroupBy will have no further obligation to store and/or make available Customer Data and will delete the same.

8. Publicity.

GroupBy may include Customer’s name or logo in a list of GroupBy customers, online or in promotional, sales or advertising materials. GroupBy may also verbally reference Customer as a customer of the GroupBy products or services that are the subject of this Agreement. Furthermore, Customer shall use commercially reasonable efforts to cooperate with GroupBy with regard to the publication of at least one press release regarding Customer’s use of the Services and at least one case study discussing the benefits of the Services.

9. Warranties.

9.1 Mutual Warranty. 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.

9.2 Customer Warranty. Customer represents and warrants that: (a) Customer will only upload, copy, share or otherwise utilize (collectively, “Use”) Customer Data on or through the Services that Customer has the right and authority to Use; (b) Customer will comply with all its obligations under the Acceptable Use Policy attached hereto as Appendix A; and (c) Customer will comply with all its obligations under the Data Processing and Security Addendum attached hereto as Appendix C.

9.3 GroupBy Warranty. GroupBy represents and warrants that it will provide the Subscription Service in accordance with the applicable Service Level Agreement (if any). GroupBy further warrants that the Customer Solutions Services will be provided with reasonable skill and care conforming to generally accepted software industry standards. For any breach of the above warranties, GroupBy will, at no additional cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty. Customer will provide GroupBy with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties. Such warranties shall only apply if the Services have been utilized by Customer in accordance with the Order Form and this Agreement. 

9.4 Disclaimer. GROUPBY DOES NOT WARRANT THAT IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS. GROUPBY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.  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.

10. Limitation of Liability.

EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS, VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, OR INDEMNIFICATION OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY, NOR GROUPBY’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES,  OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, IN CONNECTION WITH THE PERFORMANCE OF SERVICES OR THE PERFORMANCE OF ANY OTHER OBLIGATION UNDER THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (II) NEITHER GROUPBY, 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.

11. Indemnification.

11.1 By GroupBy. Subject to Section 13.3 below, GroupBy will indemnify, defend and hold Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer or any of its Affiliates alleging that the use of the Subscription Service as permitted hereunder infringes any patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party.  Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Subscription Service in violation of this Agreement or applicable law, (b) any claim relating to any third party products or services or Customer Data, (c) modifications to the Subscription Service made other than by GroupBy (where the claim would not have arisen but for such modification), (d) the combination, operation, or use of the Subscription Service, Services, with software or equipment which was not provided by GroupBy, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (e) use of a non-current or unsupported version of the Subscription Service. If the Subscription Services are held to infringe, GroupBy will, at its own expense, in its sole discretion use commercially reasonable efforts either (i) to procure a license that will protect Customer against such claim without cost to Customer; (ii) to replace the Subscription Services with non-infringing Subscription Services without material loss of functionality; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement or the applicable Order Form and the license granted thereunder and refund to the Customer any prepaid unused fees paid to GroupBy for the infringing Subscription Services.  The rights and remedies granted Customer under this Section 11.1 state GroupBy’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.

11.2 By Customer. Subject to Section 11.3 below, Customer will indemnify, defend and hold GroupBy and its Affiliates harmless from and against any and all Losses incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against GroupBy arising from: (i) any Application, Project, Instance, Customer Data, or PII; or (ii) Customer’s use of the Subscription Service in breach of Section 3.1, or in violation of any applicable law.

11.3 Conditions. Sections 11.1 and 11.2 will apply only to the extent the indemnified Party has (i) promptly notified the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed).  The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost). The indemnified party may appoint its own non-controlling counsel, at its own expense.

12. Miscellaneous.

12.1 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 Order Form. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

12.2 Assignment. This Agreement shall be binding upon and for the benefit of GroupBy, Customer and their permitted successors and assigns.  Either Party may assign this Agreement and all Order Form(s) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets.  Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void.  GroupBy may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that GroupBy shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

12.3 Force Majeure. Except for the obligation to make payments, neither party will be liable for failure or delay in performance to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is caused by circumstances beyond its reasonable control.

12.4 Independent Contractors. GroupBy and Customer are independent contractors. This Agreement does not create any agency, partnership or joint venture between the parties. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

12.5 Waiver, Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

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

12.7 Equitable Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that breach by Customer of GroupBy’s Intellectual Property Rights, or any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the such party irreparable and immediate damage for which remedies other than equitable or injunctive relief may be inadequate.  Therefore, both parties agree that, in addition to any other remedy to which the party may be entitled hereunder, at law or equity, the party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

12.8 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.

12.9 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. All addendums and exhibits attached hereto, the privacy policy, the applicable Order Form, and the Documentation are incorporated by reference into the Agreement. Except as set forth in this Agreement, any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by GroupBy.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, this Agreement, the terms at any URL.

12.10  List of Appendices.  The following Appendices are attached hereto and incorporated herein:

Appendix A – Definitions

Appendix B – Acceptable Use and Platform Policy

Appendix C – Service Level Agreement

Appendix D – Data Processing and Security Addendum

Appendix E –  Technical Support Guidelines

Appendix F –  Customer Solution Services

APPENDIX A – DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Content” means text, images, documents, materials and all other forms of data or communication.

“Customer Data” means Content provided, transmitted, or displayed via the Subscription Service by Customer or its End Users; but excluding any GroupBy Data.

“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.

“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.

“End Users” means the individuals Customer permits to use the Subscription Services.

“GroupBy Data” means any Content provided with the account or otherwise made available by GroupBy to Customer in connection with Customer’s use of the Subscription Service. GroupBy Data also includes all metrics, insights, reports, databases or other similar information, regardless of format or medium, whether on an individual or aggregated basis, that is collected, entered, stored, manipulated, reported, supplied or used by GroupBy in providing the Subscription Service.

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

“Product” means a unique instance of an item in Customer’s product catalog. Any variants of an item included in the product catalog based on color or size shall not be counted as a unique “Product”.  Each Product and each variant of the Products shall be identified by a unique identifier provided by Customer.

“Managed Products” means the average number of Products marked active by Customer in Customer’s product catalog, as measured each calendar month beginning the first full month following the initial set-up.

“Product Churn” means the rate at which active Products are deactivated and replaced by new Products.

“Product Enrichment” means the normalization and completion of Product attribute values and the addition of new values as identified by GroupBy.

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

“QPS” means the total number of queries per second processed by the Subscription Service.

“Record Count” means the total number of records stored in Customer’s end point(s) at any given time.

“Services” means the Subscription Service and any related services provided by GroupBy pursuant to this Agreement.

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

“Subscription Service” means GroupBy’s proprietary subscription-based solution further described on the applicable Order Form.

APPENDIX B – ACCEPTABLE USE AND PLATFORM POLICY

Use of the Subscription Service in accordance with the Agreement is subject to this Acceptable Use and Platform Policy (“AUPP”).  Capitalized terms not otherwise defined herein shall have the meaning ascribed in the Agreement or Appendix A.

You are responsible for compliance with this AUPP, and for your End User’s compliance with this AUPP. If You become aware that any Activity, violates the Acceptable Use and Platform Policy, You will suspend the Application or Project and remove the applicable Customer Data.  Furthermore, if such violation is as a result of an Activity of an End User, you will suspend the End User’s access to the Subscription Services. GroupBy may suspend your access to the Subscription Service if it determines that you are in violation of this AUP. No Financial Credit will be available under the Service Level Agreement set forth in Exhibit B for interruption(s) of Subscription Service resulting from AUPP violations. Under this AUPP “You” shall mean Customer and also mean any End User of the Subscription Service. You are independently responsible for complying with all applicable laws related to your use of the Subscription Service, regardless of the purpose of the use. We encourage you to report violations to INSERT. You may be in violation of this AUPP if GroupBy determines that you are intentionally using the Subscription Service to engage in unlawful or abusive behavior, or encouraging, promoting or allowing third parties (including End Users) to engage in or foster such behavior, including but not limited to:

• breaking any applicable law, national or international law or regulation;

• violating or misappropriating the legal rights of others, including but not limited to privacy rights and intellectual property rights, or exposing trade secrets or other confidential information of others; including  uploading or otherwise transmitting, displaying or distributing any Customer Data that infringes any current or future worldwide rights under patent, trademark, trade secret, copyright, and moral rights laws, or other proprietary or intellectual property rights of any person or entity;

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

• sending, uploading or otherwise transmitting any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

• uploading, distributing or otherwise transmitting any material that contains viruses, worms, Trojan horses, corrupted files, hoaxes, malicious code or other items of a destructive or deceptive nature; including any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

• interfering with the use of the Subscription Service, the networks connected to the Subscription Service, or the equipment used to provide the Subscription Service, by customers, authorized resellers, or other authorized users;

• altering, disabling, interfering with or circumventing any aspect of the Subscription Service, or the equipment used to provide the Subscription Service; including but not limited to permitting or facilitating unauthorized access to the Subscription Service (whether through distribution of malicious software code or by any other means);

• generating, distributing, publishing or facilitating unsolicited mass email, promotions, advertisings, spam or other similar solicitations;

• using the Subscription Service, or any interfaces provided with the Subscription Service, to access any other GroupBy product or service in a manner that violates the terms of service of such other GroupBy product or service;

• probing, scanning, penetrating, reverse engineering any GroupBy system, software or network (unless authorized in writing by GroupBy) or breaching GroupBy’s security measures;

• using the Subscription Service or equipment to publish, transmit (live or otherwise) or store any content or links to any content that is illegal; fraudulent or promoting or soliciting an illegal activity;

• using the Subscription Service, or a component of the Subscription Service, for any unlawful or fraudulent purpose; and/or

• using the Subscription Service in any manner not authorized by GroupBy, or in any manner that GroupBy reasonably believes to be damaging to its reputation, business, system, network, or Subscription Service.

Unless otherwise specified in writing by GroupBy, GroupBy does not intend uses of the Services to create obligations under the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued thereunder (“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.

You shall provide a privacy policy to users of the Application compliant with applicable laws, rules, regulations, or industry standards or self-regulatory guidelines on the protection of individuals on the processing of personal data and End User information that clearly discloses how You collect, use, store and discloses such data and information, including that the Application incorporates the Subscription Service and that the Application will transmit such data and information to GroupBy, for use by GroupBy for its own purposes in accordance with GroupBy’s privacy policy.

APPENDIX C – SERVICE LEVEL AGREEMENT

During the applicable License Term, GroupBy hereby agrees to provide the Subscription Service in compliance with this Service Level Agreement (“SLA”). Capitalized terms not defined herein shall have the same meaning as set forth in the Agreement or Appendix A.

Service Commitment. GroupBy shall provide the Subscription Service with a Monthly Uptime Percentage (defined below) of at least [99.95]% during any monthly period during the License Term (the “Service Commitment”).

“Downtime” mean a 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 or Exclusions.

“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.

“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.

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

Financial Credit. The Financial Credit shall be equal to the Monthly Uptime Percentage of monthly bill for the respective Service which does not meet SLA:

99.00% -< 99.95%    10%

95.00% -< 99.00%    25%

< 95.00%    50%

To receive any Financial Credit(s) described above, Customer must notify GroupBy technical support within thirty (30) 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. The aggregate maximum number of Financial Credits to be issued by GroupBy 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 Subscription Service for the applicable month. Financial Credits will be made in the form of a monetary credit applied to future use of the Subscription Service and will be applied within 60 days after the Financial Credit was requested. This SLA states Customer’s sole and exclusive remedy for any failure by GroupBy to meet the Service Commitment.

Exclusions. The Service Commitment does not apply to any unavailability, suspension or termination of Subscription Service, or any other GroupBy performance issues: (a) that result from features designated Alpha or Beta (unless otherwise set forth in the associated Documentation), (b) that result from features excluded from the SLA pursuant to the associated Documentation, (c) that result from errors: (i) caused by factors outside of GroupBy’s reasonable control, including any force majeure event or internet access or related problems beyond the demarcation point of the Subscription Service; (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;  (iv) that resulted from quotas applied by the system and/or listed in the Admin Console; (v) that result from malicious or aggressive bots or denial of service attacks; or (vi) that result from termination or suspension of the Subscription Service as authorized by the Agreement.

APPENDIX D – DATA PROCESSING AND SECURITY ADDENDUM

This Data Processing and Security Addendum (“Addendum”) forms a part of the Agreement, to reflect the parties’ agreement with regard to the Processing of Personal Data. Customer acknowledges and agrees that it enters into this Addendum on behalf of itself, and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent GroupBy processes Personal Data for which such Authorized Affiliates qualify as the Data Controller. All capitalized terms not defined herein shall have the meaning set forth in the Agreement or Appendix A.

The parties acknowledge and agree that, by accepting the Agreement, the Customer enters into this Addendum on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate Addendum between GroupBy and each such Authorized Affiliate. Each Authorized Affiliate agrees to be bound by the obligations under this Addendum and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, but is only a party to the Addendum. All access to and use of the Subscription Services and Customer Data by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with GroupBy under this Addendum and be entitled to make and receive any communication in relation to this Addendum on behalf of its Authorized Affiliates. The parties further acknowledge and agree that for the purposes of this Addendum only, except where expressly indicated otherwise, the term “Customer” as used in this Addendum shall include both Customer and Authorized Affiliates.

In the course of providing the Services to Customer pursuant to the Agreement, GroupBy may Process Personal Data on behalf of Customer, and the parties agree to comply with the following provisions with respect to any such Personal Data. For the avoidance of doubt, this Addendum is in addition to and not in lieu of any other provision relating to the Processing of Personal Data that may be contained within the Agreement.

1.  Definitions.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and GroupBy, but has not signed their own Order Form with GroupBy and is not a “Customer” as defined under the Agreement.

“Ads” means online advertisements displayed by GroupBy through the Subscription 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.

“Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.

“Data Protection Laws and Regulations” means all laws and regulations, including without limitation the laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.

“Data Subject” means the individual to whom Personal Data relates.

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

“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.

“Personal Data” means any information relating to (i) an identified or identifiable person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations, where such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, blocking, erasure or destruction.

“Subprocessors” means” any Data Processor engaged by GroupBy or a member of the GroupBy Group.

2. Processing of Personal Data

The parties acknowledge and agree that with respect to Personal Data: (a) GroupBy shall be a Processor and shall comply with its obligations as a Processor under the Agreement, (b) Customer is the Controller with respect to certain Personal Data and 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 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 Personal Data in accordance with the Agreement. The parties acknowledge and agree that GroupBy or members of the GroupBy Group will engage Sub-processors pursuant to the requirements set forth in this Addendum.

Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.  Customer will have the ability to access, monitor, use, or disclose Customer Data, including Personal Data, submitted by End Users through the Subscription Service. Customer will obtain and maintain any required consents from End Users to allow Customer’s access, monitoring, use and disclosure of such Customer Data, including Personal Data.

Customer instructs GroupBy to process Personal Data for the following purposes: (i) to comply with reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement (instructions may be provided via email), (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 and applicable Order Form(s). GroupBy shall only Process Personal Data on behalf of and in accordance with Customer’s instructions, and not for any other purpose, and shall treat Personal Data as Confidential Information.  In addition, GroupBy will not process 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. Customer acknowledges that GroupBy is reliant on Customer for direction as to the extent to which GroupBy is entitled to use and process Personal Data. Consequently, GroupBy will not be liable for any claim brought by a user or any other third party arising from any action or omission by GroupBy, to the extent that such action or omission resulted directly from Customer’s instructions, or from Customer’s request to process categories of Personal Data outside of those categories identified below.

The objective of Processing of Personal Data by GroupBy is the performance of the Services pursuant to the Agreement.

Categories of Data Subjects. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: End Users of the Application.

Categories of Customer Data.  End User Information may include, without limitation, search queries, IP addresses, navigation paths, shopping basket content, conversion and detailed order information, and analytic information.

Categories of Personal Data. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, however, GroupBy’s expectation is that no Personal Data will be provided other than IP address.

3. Data Security

3.1 Security Measures. GroupBy will implement and maintain appropriate administrative, physical, and technical safeguards to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, or unauthorized disclosure or access (the “Security Measures”). GroupBy will not materially decrease the overall security of the Services during the applicable License Term.

3.2 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.

3.3 Data Incidents. GroupBy will maintain an incident response program appropriate to respond to any unlawful or unauthorized destruction, loss, alteration, access, use, or disclosure of Personal Data that compromises the security, privacy, or confidentiality of that Personal Data (“Data Incident”). If GroupBy has reason to believe that a Data Incident has occurred, GroupBy will: (a) promptly investigate, and (b) to the extent permitted by applicable law, 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 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. To the extent such Security Breach is caused by a violation of the requirements of this Addendum by GroupBy, GroupBy shall make reasonable efforts to identify and remediate the cause of such Data Incident

4. Data Correction, Blocking, Exporting and Deletion

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 Subscription Services, including any applicable Service Level Agreement. To the extent Customer, in its use of the Subscription Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws and Regulations, or migrate Customer Data to another system or service provider, GroupBy will, during the term, comply with any commercially reasonable request by Customer to facilitate the ability to perform such actions in a manner consistent with the functionality of the Subscription Services, to the extent GroupBy is legally permitted to do so. To the extent legally permitted, Customer shall be responsible for any costs arising from GroupBy’s provision of such assistance. Once Customer deletes Customer Data via the Subscription Services such that the Customer Data is not recoverable by Customer (the “Customer-Deleted Data”), GroupBy will delete the Customer-Deleted Data within a maximum period of 180 days.

5. Data Subject Requests.

GroupBy shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject for access to, correction, amendment or deletion of that person’s Personal Data. GroupBy shall not respond to any such Data Subject request without Customer’s prior written consent except to confirm that the request relates to Customer. GroupBy shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a Data Subject’s request for access to that person’s Personal Data, to the extent legally permitted and to the extent Customer does not have access to such Personal Data through its use of the Services. If legally permitted, Customer shall be responsible for any costs arising from GroupBy’s provision of such assistance.

6. 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. Model Clauses.

GroupBy, Inc. shall abide by the requirements incorporated in the Model Contract Clauses, pursuant to Article 26(2) of Directive 95/46/EC, in order to adduce adequate safeguards with respect to the Processing of Personal Data that is transferred from the European Economic Area to the United States.

8. Subprocessors.

GroupBy may engage Subprocessors (including Affiliates and third parties) to provide parts of the Services, or to otherwise access and use the Customer Data in connection with the Services. GroupBy will ensure that Subprocessors only access and use Customer Data in accordance with the terms of the Agreement. Customer consents to GroupBy subcontracting the processing of Customer Data to Subprocessors.

GroupBy shall be liable for the acts and omissions of its Sub-processors to the same extent GroupBy would be liable if performing the services of each Sub-processor directly under the terms of this Addendum, except as otherwise set forth in the Agreement. At any time upon the written request of the Customer, GroupBy will provide additional information regarding Subprocessors and their locations.

9. Third Party Requests.

Customer is primarily responsible for responding to request from a third party for records relating to an End User’s use of the Services (“Third Party Requests”). Third Party Requests may include, without limitation, a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure. 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. If a Third Party Request is made to GroupBy, GroupBy will, at Customer’s reasonable expense (if legally permitted), and only to the extent allowed by law, and by the terms of a 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.

10. Personnel.

GroupBy shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. GroupBy shall ensure that such confidentiality obligations survive the termination of the personnel engagement. GroupBy shall take commercially reasonable steps to ensure the reliability of any GroupBy personnel engaged in the Processing of Personal Data. GroupBy shall ensure that GroupBy’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

11. Privacy Officer.

GroupBy has appointed a Privacy Officer where such appointment is required by Data Protection Laws and Regulations. The appointed person may be reached at data.privacy@groupbyinc.com.

12.  Instructions.

This Addendum and the Agreement are Customer’s complete and final instructions at the time of signature of the Agreement to GroupBy for the Processing of Personal Data.

13. Certification of Deletion.

Upon the termination or expiration of this Agreement for any reason, GroupBy shall, within 180 days of such termination, shall securely dispose of any Customer Personal Data in GroupBy’s possession, unless such disposal is prohibited by law or regulation.

14. Limitation of Liability.

This Addendum is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and its Affiliates under the Agreement in its entirety, including this Addendum. For the avoidance of doubt, GROUPBY’s and its Affiliates’ total liability for all claims from the Customer and its Authorized Affiliates arising out of or related to the Agreement and this Addendum shall apply in the aggregate for all claims under both the Agreement and all Addendums established under such Agreement between GroupBy and any Authorized Affiliate, and, shall not be understood to apply individually and severally to each Authorized Affiliate.

APPENDIX E – TECHNICAL SUPPORT GUIDELINES (“TSG”)

The following technical support guidelines (“Guidelines”) apply to Technical Support Services for the Subscription Services provided by GroupBy to Customer.

1. Definitions.

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

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

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

“Customer Contacts” means administrators designated in the Admin Console.

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

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

 “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.

“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.

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

“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 Subscription Service.

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

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

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

“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.

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 Subscription Service 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 Subscription 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 the applicable Order Form, or  toGroupBy’s website as provided by GroupBy from time to time.  Customer’s continue use of the Subscription Services shall be deemed acceptance of any such updates.

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 Technical Support Services provided by GroupBy pursuant to these Guidelines will be limited to the License Term. GroupBy will have no obligation to provide any Technical Support Services to Customer after the expiration or termination of the Agreement.

APPENDIX F – 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, if applicable.

2. Access, Cooperation.

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. Customer will cooperate with GroupBy will provide GroupBy such assistance as GroupBy may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the Order Form, except as prevented by acts or occurrences beyond Customer’s control.  If GroupBy personnel are required to be present on a Customer site, Customer will provide adequate workspace and may provide reasonable worksite safety and security rules to which such personnel are to conform.  Customer shall be responsible for obtaining and paying for any releases, rights, licenses, clearances or permissions necessary to use any third party materials which are the responsibility of Customer to provide in connection with any Customer Solutions Services performed by GroupBy under any Order Form.  Customer will appoint a primary point of contact.

3. 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.

4. Work Product.

GroupBy hereby grants to Customer a non-exclusive, non-transferable license to use any work product developed by GroupBy in the performance of Customer Solutions Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely in conjunction with, and consistent in scope with, Customer’s permitted use of the Subscription Services under this Agreement.  GroupBy retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all work product received, compiled or developed by GroupBy in the performance of this Agreement, including, but not limited to all configurations to the Software, Subscription Services or any applications.  All such information shall be treated as Confidential Information of GroupBy in accordance with the Agreement.  GroupBy may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Customer Solutions Services and may incorporate the work product in future releases of any of its Software and Subscription Services. Nothing in this Agreement 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 Customer Solutions Services.

5. Soliciting Employees.

During the period of performance of any Customer Solutions Services 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.

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