Terms and Conditions for Services

Last Modified: February 1, 2022

These Terms and Conditions for Services (these “Terms”) are a binding contract between you, the person or organization identified on the Order Form or similar agreement between the parties (the “Order Form”) or who otherwise access or uses the GroupSolver software and purchases ad-on services related to its use (“Customer”), and GroupSolver, Inc. (“GroupSolver”) (each a “Party” and together the “Parties”). These Terms govern the Services provided by GroupSolver under the Order Form.

THIS AGREEMENT TAKES EFFECT WHEN YOU SIGN THE ORDER FORM OR CHECK THE “I AGREE” CHECK BOX PRESENTED TO YOU WITH THIS AGREEMENT (the “Effective Date”). BY SIGNING THE ORDER FORM OR CHECKING THE “I AGREE” YOU: (i) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (ii) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (iii) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

THE PARTIES AGREE AS FOLLOWS:

1. Applicability of Terms; Order Form. These Terms, the accompanying Order Form, and any related statement of work (“SoW”) or any subsequent Order Form or SoW constitute the entire agreement between the Parties about the ad-on services or analytics described in the Oder Form and any SoW and provided by GroupSolver to Customer (the “Services”) and supersede any other agreements, representations, or understandings (whether oral, written, express, or implied) that relate to the Services. If there is any conflict between these Terms and the Order Form, these Terms will govern, unless the Order Form expressly states otherwise. If there is any conflict between these Terms and any of Customer’s general terms and conditions or similar documents, these Terms will govern. Providing services to Customer does not constitute acceptance of any of Customer’s terms and conditions or similar documents and does not modify or amend these Terms.
2. GroupSolver’s Services. In accordance with these Terms, GroupSolver will provide to Customer those services (the “Services”) described in any Order Form issued by GroupSolver and accepted by Customer. GroupSolver will use reasonable efforts to meet any service performance dates it provides to Customer in the Order Form or otherwise, but performance dates are estimates only.
3. Customer’s Obligations; Delay.
   • 3.a Customer’s Obligations. Customer must:
     • (A) Appoint and, in its reasonable discretion, replace a Customer representative to serve as its primary contact for all matters under these Ters and who has the authority to act on behalf of the Customer with respect to those matters.
     • (B) Promptly respond to GroupSolver’s requests for instructions, decisions, authorizations, or other information that is reasonably necessary to perform the Services.
     • (C) Promptly provide GroupSolver with copies of or access to Customer’s materials that are reasonably necessary to perform the Services and ensure that the materials are materially accurate and complete.
   • 3.b Customer’s Delay. GroupSolver will not be in breach of or liable to Customer under these Terms if the breach or liability is caused in whole or in part by Customer’s delay in performing its obligations under these Terms.
4. Change Orders. If either Party wishes to change the scope of performance of the Services, it must submit details of the requested change to the other Party in writing. Within a reasonable time after the request, GroupSolver will provide a written estimate to Customer describing the likely effect of the change on the Services, including adjustments to the estimated performance dates and fees and expenses. Promptly after Customer receives the written estimate, the Parties will negotiate and agree in writing on the terms of any change (the “Change Order”). The written agreement may be in any format that constitutes a writing under applicable law, including for example, any form of electronic communication, such as email, chat, or text, as long as the writing supports the mutuality of the agreement. Notwithstanding the foregoing, GroupSolver may change the Services without Customer’s consent if the changes do not materially affect the nature or scope of the Services as set forth in the Order Form.
5. Fees and Expenses.
   • 5.a Payment. Customer must pay the fees described on any Order Form (the “Fees”) in accordance with the terms of the Order Form and any invoice. If Customer fails to pay any amounts when due, we may suspend the Services until the amounts are paid in full. GroupSolver will issue invoices for the Services concurrently with Customer’s corresponding subscription to the GroupSolver software. All late payments will bear interest at the lesser of 1.5% per month or the highest rate permissible under California law.
   • 5.b Taxes. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government entity on any amounts payable by Customer under these Terms. Customer is not responsible for any taxes on GroupSolver’s revenue, income, personnel, or real or personal property, or other assets.
   • 5.c Invoice Disputes. Customer must notify GroupSolver in writing of any invoice dispute (along with a reasonably detailed description of the dispute and any substantiating documentation) within 5 days of Customer’s receipt of the disputed invoice. If Customer does not timely notify us of an invoice dispute, then the invoice is considered undisputed and Customer must pay all amounts due as set forth in the Order Form and this Section 5.
6. Confidential Information. In connection with their proposed or actual business relationship, or during the term of these Terms, the Parties have disclosed or may disclose to each other, or have allowed or may allow each other access to, Confidential Information. “Confidential Information” means all non-public, proprietary, or confidential information of the disclosing party (the “Discloser”) or relating to the Discloser’s business (including Confidential Information disclosed to or accessed by the recipient (the “Recipient”) before these Terms) in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “proprietary” or “confidential.” Confidential Information also includes other information that is marked or otherwise identified as proprietary or confidential, or that would otherwise appear to a reasonable person to be proprietary or confidential in the context and circumstances in which the information is disclosed or accessed. Confidential Information does not include information that is generally available to and known by the public at the time it is disclosed or accessed, unless it is generally available and known through the Recipient’s direct or indirect fault or the direct or indirect fault of person(s) acting on the Recipient’s behalf. Unless permitted by these Terms, the Recipient must not use Confidential Information for its own account or any third party’s account, and must not disclose to any third party, any of the Discloser’s Confidential Information. These Terms do not prevent the Recipient from disclosing Confidential Information if the disclosure is required by an applicable law or regulation or required under the valid order of a court of competent jurisdiction or an authorized government agency, as long as the disclosure does not exceed the extent of the disclosure required by the law, regulation, or order. The Recipient must promptly provide written notice of any court or government order to the Discloser so the Discloser can seek a protective order or other remedy.
7. Intellectual Property.
   • 7.a Customer Intellectual Property. In the course of providing the Services, GroupSolver may use certain materials consisting of documents, data, information, or other materials that Customer developed or acquired before or independently of these Terms (collectively, the “Customer Materials”). Customer owns and reserves all intellectual property rights, including, without limitation, all patents, copyrights, derivative works, trademarks, service marks, trade dress, goodwill, trade names, corporate names, logos, domain names, trade secrets, know-how, and all other rights (collectively, “Intellectual Property Rights”) in and to the Customer Materials. Customer hereby grants GroupSolver a non-exclusive, non-transferable (except in accordance with Section 12.4 (Assignment)), non-sublicensable, fully paid, royalty free, perpetual, and worldwide license to use the Customer Materials, but only to the extent necessary for GroupSolver to provide the Services. Except for this limited license, GroupSolver has no other right or license in or to the Customer Materials, by implication, waiver, estoppel, or otherwise.
   • 7.b GroupSolver Intellectual Property. GroupSolver owns and reserves all Intellectual Property Rights in and to all services, documents, data, information, or other materials that are delivered to Customer under these Terms or prepared by or on behalf of GroupSolver in the course of performing the Services (collectively, the “Deliverables”), except for any Customer Confidential Information or Customer Materials, which are subject to the Section 6 (Confidential Information) and 7.1 (Customer Intellectual Property) above, and except for GroupSolver’s software and related documentation, which is subject to GroupSolver’s separate Master Subscription Agreement. GroupSolver hereby grants Customer a non-exclusive, non-transferable (except in accordance with Section 12.4 (Assignment)), non-sublicensable, fully paid, royalty free, perpetual and worldwide license to use the Deliverables and Intellectual Property Rights in them, but only to the extent necessary for Customer to make reasonable use of the Services. Except for this limited license, Customer has no other right or license in or to the Deliverables, by implication, waiver, estoppel, or otherwise.
   • 7.c Third-Party Intellectual Property. In the course of providing the Services, GroupSolver may use certain third-party materials consisting of software (which may include open-source software), documents, data, information, or other materials, that are not proprietary to GroupSolver (collectively, the “Third-Party Materials”). Customer will have a non-exclusive, non-transferable (except in accordance with Section 12.4 (Assignment)), non-sublicensable, fully paid, royalty free, perpetual and worldwide license to use the Third-Party Materials (subject to any third-party licenses), but only to the extent necessary for Customer to make reasonable use of the Services. Except for this limited license, Customer has no other right or license in or to the Third-Party Materials, by implication, waiver, estoppel, or otherwise.
8. Representation and Warranty. GroupSolver warrants that it will perform the Services using commercially reasonable efforts, using personnel of required skill, experience, and qualification, and in a professional and work-person-like manner in accordance with generally recognized industry standards for similar services. GroupSolver will not be liable for a breach of the foregoing warranty unless Customer provides GroupSolver with written notice reasonably describing the defective Services within ten days of the time when Customer discovers or should have discovered the defective Services. If Customer provides GroupSolver with written notice of the defective Services, then GroupSolver, in its sole discretion, may repair or re-perform the Services or defective part of the Services, or credit or refund the reasonable value of the defective Services. The remedies set forth in this Section 8 are Customer’s sole and exclusive remedies and GroupSolver’s entire liability for any breach of the limited warranty set forth in this Section 8. Except for the limited warranty set forth in this Section 8, GroupSolver does not make, and hereby disclaims, all express, implied or statutory warranties, including, without limitation, warranties of merchantability and fitness for a particular purpose, and any warranties arising from a course of dealing, course of performance, usage of trade, or otherwise.
9. Limitation of Liability. In no event will GroupSolver be liable to Customer or any third party for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues, or diminution in value, arising out of, relating to, or in connection with any breach of these Terms, regardless of whether the damages were foreseeable, whether or not GroupSolver was advised of the possibility of the damages, or the legal or equitable theory on which the claim is based. In no event will GroupSolver’s liability arising out of relating to these Terms, whether arising out of or relating to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid or payable to Customer under these Terms. The limitations in this Section 9 will not apply to GroupSolver’s obligations under Section 6 (Confidentiality), Section 7 (Intellectual Property), or GroupSolver’s gross negligence, recklessness, willful misconduct, or more culpable act or omission.
10. Term, Termination, and Survival.
    • 10.a Term. The term of these Terms will commence on the Order Date and continue for one year, until the Services described in the Order Form are complete, or until termination of the Master Subscription Agreement between Customer and GroupSolver, whichever is earlier.
    • 10.b Termination by Either Party. Subject to the remedies in Section 9, and in additional to any other remedies that may be provided under these Terms, either Party may terminate these Terms:
      • (A) Effective on written notice to the other Party, if the other Party breaches these Terms, and the breach is either incapable of cure or remains uncured 15 days after the non-breaching Party provides written notice of the breach to the breaching Party; or
      • (B) Effective on written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.;
    • 10.c Effect of Termination. On termination, Customer must pay any outstanding amounts to GroupSolver for earned but unpaid Services or for unreimbursed expenses
    • 10.d Survival. Each Party’s rights and obligations set forth in Section 6 (Confidentiality), Section 7 (Intellectual Property), 8 (Representation and Warranty), Section 9 (Limitation of Liability), and Section 11 (Publicity), and any other rights or obligations in these Terms, which by their nature should survive termination or expiration of these Terms, will survive any termination or expiration.
11. Publicity. Customer agrees that GroupSolver may include Customer’s name and logo on or in GroupSolver’s website, press releases, promotional and sales literature, and advertising materials.
12. Miscellaneous.
    • 12.a Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms will be construed to create any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party.
    • 12.b No Exclusivity. GroupSolver may perform the same or similar type of services for third parties in Customer’s industry during the Term of these Terms.
    • 12.c Force Majeure. Neither GroupSolver or Customer will be liable or responsible to the other Party be considered to have defaulted or breached these Terms (except for any obligations to make payments to the other Party) for any failure or delay in fulfilling or performing any term of these Terms when and to the extent that failure or delay is caused by or results from acts or circumstances beyond GroupSolver or Customer’s reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage. But if the event in question continues for a continuous period of more than 90 days, either GroupSolver or Customer may terminate these Terms on written notice to the other Party. If these Terms are terminated under this Section 12.3, then GroupSolver will refund any paid but unearned fees and Customer will pay any earned but unpaid fees.
    • 12.d Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under these Terms, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except either Party may assign these Terms to an affiliate, a successor-in-interest by consolidation, merger, or operation of law, or to a purchaser of all or substantially all of the Party’s assets. No assignment will relieve the assigning party of any of its obligations under these Terms. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. These Terms will be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
    • 12.e Governing Law; Jurisdiction. California law applies to these Terms without regard for any choice-of-law rules that might direct the application of the laws of another jurisdiction. Exclusive jurisdiction lies with the courts of California for all actions or proceedings arising out of or relating to these Terms and the Parties hereby consent to the jurisdiction of those courts.
    • 12.f Cumulative Remedies. Except as otherwise provided in these Terms, all rights and remedies are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
    • 12.g Equitable Remedies. Each Party acknowledges and agrees that if it breaches or threatens to breach any of its obligations under Sections 6 (Confidential Information) or 7 (Intellectual Property), that breach or threatened breach would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy. If a Party breaches or threatens to breach any of these obligations, the other Party will, in addition to any and all other rights and remedies that may be available to that Party at law, at equity, or otherwise, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 12.7.
    • 12.h Severability. If any part of these Terms is held to be unenforceable, that part must be amended to achieve as nearly as possible the same economic effect as the original part and the rest of these Terms remains fully enforceable.
    • 12.i Amendment and Modification. These Terms (which includes these Terms and any Order Form) may not be amended or modified unless the amendment or modification is in writing and signed by the Parties.
    • 12.j Waiver. A Party’s waiver of a provision or the other Party’s breach of these Terms is not a waiver of any similar or dissimilar provision or breach at the same, prior, or subsequent time. A Party’s delay or failure to exercise any right, power, or privilege under these Terms is not a waiver of that right, power, or privilege, and does not preclude the Party from any other or further exercise of that or any other right, power, or privilege.
    • 12.k Captions. The captions or headings of these Terms are for reference only and should not be construed as part of these Terms.
    • 12.l Notice. Any notice required or permitted by these Terms must be in writing and will be considered effective on receipt if delivered in person, by a reputable overnight courier service, by registered or certified mail (postage prepaid, return receipt requested), or by email or confirmed facsimile (if the email or facsimile is sent during the recipient’s normal business hours, otherwise the email or facsimile is considered given or made on the next business day), to the attention of the Party intended as the recipient at that Party’s address on the signature page to these Terms or at the address that party most recently provided to the other Party for the purpose of notice under this Section 12.12.