Groove License Agreement

PLEASE READ THE TERMS OF THIS GROOVE LICENSE AGREEMENT (THE “TERMS”) CAREFULLY BEFORE USING THE GROOVE SOFTWARE AND/OR ANY OTHER TECHNOLOGY AVAILABLE AT WWW.GROOVEAPP.COM (INCLUDING, WITHOUT LIMITATION, ALL LINKED PAGES, CONTENT AND OFFLINE COMPONENTS) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY GROOVE LABS INC. (“GROOVE”). BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THE TERMS THROUGH AN ORDER FORM/ONLINE ORDERING PROCEDURE THAT INCORPORATES THE TERMS (THE “ORDER FORM;” AND, COLLECTIVELY WITH THE ORDER FORM, THE “AGREEMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, “YOU” OR “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

This Agreement is between you and Groove. The terms of this Agreement shall apply to use of the Services provided by Groove (including, without limitation, the services set forth in any Order Forms and all exhibits and/or statements of work thereunder). The terms of this Agreement shall control over any different or additional terms of any purchase order or other non­Groove ordering document, and no terms included in any such purchase order or other non­Groove ordering document shall apply to the Services. The Terms shall control over any conflicting terms in the Order Form.

1. Right to Use the Services. Subject to the terms and conditions of this Agreement, Groove grants to you, during the Subscription Term (as defined in Section 7) , a nontransferable, nonsublicensable, nonexclusive, limited right to permit you and those individuals authorized by you or on your behalf, and who are your employees, agents or contractors (each a “User” and, collectively, “Users”), to use the Services, all solely for your own internal business operations only in accordance with (a) any technical specification documentation generally made available by Groove with regard to such Services (“Documentation”), and (b) any User and/or other restrictions set forth in the Order Form (as applicable). Upon Groove’s request, Groove will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any noncompliance will be at your expense. The maximum number of Users that you authorize to access the Services shall not exceed the number of User licenses (also referred to as “subscriptions”) you have purchased, as evidenced in the Order Form. You acknowledge and agree that Groove shall own all right, title and interest in and to all intellectual property rights in the Services (including all derivatives or improvements thereof), and any suggestions, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. You hereby do and shall make all assignments and take all acts necessary to accomplish the foregoing ownership. The rights granted to you in the Agreement are subject to all of the usage restrictions described in Section 2.

The Services are subject to modification at Groove’s sole discretion, for any purpose deemed appropriate by Groove. Groove will use reasonable efforts to give you prior notice of any such modification.

2. Usage Restrictions.

2.1 You shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party (except as expressly allowed herein); (v) remove any proprietary notices or labels from the Services; (vi) use the Service in violation of any applicable local, state, national or foreign laws, treaties or regulations (including, without limitation, those related to data privacy or personal data, export laws, anti-spam laws, or any laws relating to recording of phone calls or other electronic communications), or (vii) permit anyone else to do any of the foregoing.

2.2 You may not access the Services or any software associated with the Services if you are a direct competitor of Groove (as determined in Groove’s sole discretion), unless you obtain Groove’s prior written consent.

2.3 You acknowledge and agree that the Services operates on or with a hosted application platform operated by a third party (such as Salesforce.com, Salesforce Checkout, Google Chrome Web Store, Gmail, and Google Apps), and Groove shall not be responsible for the operation of any such third party service, nor the availability or operation of the Services to the extent such availability and operation is dependent upon the availability and operation of such third party hosted application platforms. You shall be solely responsible for procuring any rights necessary for Users to access such service and for complying with any applicable terms or conditions. Groove does not make any representations or warranties with respect to any thirdparty providers or any of their products or services. Any exchange of data or other interaction between Users and a thirdparty provider, and your purchase of any product or service offered by such thirdparty provider, is solely between you and such thirdparty provider and is governed by such third party’s terms and conditions.

3. Your Data.

Groove does not own any data or information that you submit to the Services in the course of using the Services (your “Data”). You, not Groove, shall have sole responsibility that your Data is in proper format as specified by the Documentation; (ii) your Users are familiar with the use and operation of the Services, and (iii) no other software, data or equipment is having an adverse impact on the Services has been introduced. Nothing herein shall be deemed to prevent Groove from collecting, using and disclosing aggregate information relating to the Services for the purposes of providing and improving the performance of the Services.

4. Support and SLA.

You will provide Groove with the name and email address of your designated technical contact person, which shall have access to Groove’s technical support. You give Groove permission to send product information and product updates to the technical contact person. Groove reserves the right to suspend your and/or your clients’ access to the Services for scheduled or emergency maintenance. Subject to Customer’s full compliance with the Terms, Groove will use commercially reasonable efforts to comply with the Technical Support Service Guidelines attached hereto as Exhibit B.

5. Usage Requirements.

You shall be responsible for obtaining and maintaining any software, equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, web browsers, web browser extensions (Google Chrome Extensions), hardware, server, software, operating system, networking, web servers, internet connectivity (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Groove’s published documentation then in effect. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

6. Billing and Payment.

You agree to pay for the Services at the then-current standard license/subscription fees for the Services (the “Fees”). Groove reserves the right to modify the Fees and will notify you of any such changes; if you wish to continue using the Services, you must pay all applicable Fees. All fees due under the Agreement are non­cancelable and the sums paid nonrefundable, except as otherwise specified in Section 8 of the Agreement. Groove’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on Groove’s income), even if such amounts are not listed on an Order Form. You shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. You will provide Groove with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information to Groove, you authorize Groove to bill such credit card (a) at the time that you order any products or services, for all products and services you are purchasing, and (b) at the time of any renewal, for the amount charged for any renewal Subscription Term(s) as set forth in Section 7. If Groove, in its discretion, permits you to make payment using a method other than a credit card, Groove will invoice you at the time of the initial Order Form and for annual subscriptions approximately one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

7. Term and Termination.

This Agreement is valid for the term indicated on the Order Form (the “Subscription Term”). The Subscription Term shall commence when you begin using the Services, or as otherwise set forth in the Order Form. Except as otherwise provided in an Order Form issued by Groove, Services subscriptions may be renewed under Groove’s then­current applicable policies and terms, subject to Groove’s acceptance and your payment of fees for such Services. In the event of any material breach of the Agreement by either party, the non­breaching party shall have the right to terminate the Agreement if such breach has not been cured within 30 days of written notice from the non­breaching party specifying the breach in detail. Groove may immediately suspend or cancel your access to the Services during such cure period if (i) you fail to make payment due to Groove under the Agreement and do not cure such nonpayment within ten business days after Groove has provided you with notice of such failure, or (ii) you violate any provision within Sections 1, 2, or 11 of this Agreement. Any suspension by Groove of the Services under the preceding sentence shall not excuse you from your obligation to make payment(s) under the Agreement. If Groove terminates this Agreement or any Order Form, you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for Services for the remainder of the then­current term (even if earlier terminated) under the applicable Order Form(s) plus related taxes and expenses. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

8. Representations, Warranties, Indemnities & Exclusive Remedies.

Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Groove warrants that it will provide the Services in accordance with the SLA in Exhibit A. Subject to the terms of this section, Groove shall defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable attorneys’ fees) actually payable to unaffiliated third parties arising from claims, demands, suits, or proceedings (“Claims”) brought against you by such third parties alleging that the use of the Services as contemplated hereunder infringes the valid United States patent, copyright, trademark or trade secret of such a third party; provided, that you (a) promptly give written notice of any such Claim to Groove; (b) give Groove sole control of the defense and settlement of the Claim; and (c) provide to Groove, at Groove’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Groove, (ii) resulting in whole or in part in accordance from your (or any of your clients’) specifications or data/content, (iii) that are modified or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (v) where your use is not strictly in accordance with this Agreement and all related documentation, or (vi) any breach of this Agreement by or fault of yours (or your clients). Customer will indemnify Groove from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to (i) any claim of infringement or misappropriation excluded from Groove’s foregoing indemnity obligations, or (ii) Customer’s breach of any of the provisions of this Agreement.

9. Disclaimer of Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8 ABOVE, GROOVE AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE SERVICES AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON­INFRINGEMENT, AND QUALITY OF SERVICE. GROOVE AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES, INCLUDING, WITHOUT LIMITATION, ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING (E.G. POSITION, LEVELS, QUALITY, OR TIMING OF COST PER CLICK, CLICK THROUGH RATES, AVAILABILITY AND DELIVERABILITY OF IMPRESSIONS, CLICKS, CONVERSIONS, THE ACCURACY OF DATA, AND THE ADJACENCY OF ADS) . WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GROOVE AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR­FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER GROOVE NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. GROOVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY GROOVE, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties, so the exclusions set forth above in this Section 9 may not apply to you

10. Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, GROOVE AND ITS THIRD PARTY LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND GROOVE’S REASONABLE CONTROL, EVEN IF GROOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY YOU TO GROOVE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

Certain states and/or jurisdictions do not allow the exclusion of limitation of liability for incidental or consequential damages, so the exclusions set forth above in this Section 10 may not apply to you.

11. Notices.

Groove may give notice applicable to Groove’s general Services customer base by means of a general notice on the Services portal and notices specific to you by electronic mail to your email address on record in Groove’s account information or by written communication sent by first class mail or prepaid post to your address on record in Groove’s account information. If you have a dispute with Groove or you wish to provide a notice under the Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Groove Labs Inc., 453 N. Rengstorff Ave, Suite 22, Mountain View, CA 94043.

12. Verification.

At Groove’s written request, you shall furnish Groove with a document signed by your authorized representative verifying that the Services are being used pursuant to the provisions of this Agreement and the applicable Order Form. You agree to provide such information and documents reasonably requested by Groove with respect to your use of, and payment of fees for, the Services. If the verification described in this section reveals that you have underpaid fees to Groove, you shall promptly pay to Groove such fees at the prices set forth in the applicable Order Form. You are responsible for implementing reasonable means to monitor your compliance with the terms of the Agreement.

13. Export.

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services and you agree to comply with all export laws and regulations (including “deemed export” and “deemed reexport” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

14. Force Majeure.

Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services provided.

15. Publicity.

You are permitted to state publicly that you are a customer of the Services, consistent with the Trademark Guidelines. You agree that Groove may include your name or brand in a list of Groove customers, online or in promotional materials. You also agree that Groove may reference you as a customer of the Services that are the subject of this Agreement.

16. General Provisions.

This Agreement will be governed by under the laws of California as applied to contracts entered and performed in California between two of its residents.. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, will not apply to the Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Any disputes, actions, claims or causes of action arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the state courts of California, and the federal courts of the Northern District of California. This Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the Order Form, represents the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. The exchange of a fully executed Order Form shall be sufficient to bind the parties to the terms and conditions of this Agreement and Order Form. The terms and conditions of the Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Groove and you as a result of the Agreement or use of the Services. You may not assign the Agreement without the prior written approval of Groove. Groove may assign and transfer any of its rights and obligations under this Agreement without consent. Any purported assignment in violation of this section shall be void. Groove reserves the right to provide some or all of the Services from locations, and/or through use of third party providers, worldwide. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of Groove’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by Groove.

Exhibit A

Service Level Agreement

Service Levels

Groove shall provide Customer with 99% availability to the Services (the “Service Availability”). The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime resulting from outages of third party providers, connections or utilities or other reason beyond Groove’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Groove’s possession or reasonable control, and denial of service attacks).

Service Credits

If the Services are unavailable to Customer due to defects with the Services beyond the Service Availability metric, then, as Customer’s sole and exclusive remedy (and Groove’s sole and exclusive liability) therefore, for each full hour in a month that the Services are unavailable beyond the Service Availability metric Groove will credit Customer with one (1) day of access to the Services, free of any associated flat monthly subscription charges. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of one (1) month of access to the Services. If permitted by the Agreement, Groove’s blocking of data communications in accordance with the Agreement shall not be deemed to be a failure of Groove to provide adequate service levels under this Agreement.

In order to receive service credits, Customer must notify Groove in writing within seventy-two (72) hours from the time of downtime or response failure (as applicable), and failure to provide such notice will forfeit the right to receive downtime credit.

Exhibit B

Technical Support Service Guidelines

The following technical support services guidelines ("Guidelines") apply to support services for the Groove License Agreement entered into by and between Groove and Customer (as may be applicable, the “Terms” or the “Agreement”). Capitalized terms not defined herein have the meaning set forth in the Terms.

Support Request Submission

1.1. Customer Efforts to Fix Errors. Prior to making a Request to Groove, Customer will use reasonable efforts to fix any error, bug, malfunction or network connectivity defect without escalation to Groove. Thereafter, a technical contact person (thereafter, “Customer Contact”) may submit a Request for technical support via email or phone.

1.2. Characterization of Requests. Upon receiving a Request from Customer Contact, Groove will determine whether the Request is P1, P2, P3 or P4 in severity (as defined in Section 7). Any such determination made by Groove is final and binding on Customer. Customer may appeal any such determination to Groove’s support management for review through any available support channel.

1.3. 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 Groove Support Personnel as appropriate.

1.4. Request Acknowledgement. Groove may respond to a Request by acknowledging receipt of the Request. Customer acknowledges and understands that Groove may be unable to provide answers to, or resolve all, Requests.

Accessing Support

2.1. End Users. Customer is responsible for responding to any questions and complaints by End Users or other third parties relating to Customer's or its End Users' use of the Services, with such support services to be provided at Customer's own expense.

2.2. Support Hours and Target Initial Response Times. Groove will provide access to email and phone support for customers on Monday through Friday from 9AM – 5PM Pacific Time. P1 Priority support Requests are responded to with a target initial response time of two hours. P2 Priority support Requests will be responded to with an initial target response time of eight hours or less. P3 Priority support Requests will be responded to with an initial target response time of twelve hours or less. P4 Priority support Requests will be responded to with an initial target response time of one business day or less.

General Provisions

3.1. Maintenance. To ensure optimal performance of the Services, Groove performs periodic Maintenance. In most cases, Maintenance will have limited or no negative impact on the availability and functionality of the Services. If Groove expects planned Maintenance to negatively affect the availability or functionality of the Services, Groove will use commercially reasonable efforts to provide at least seven days advance notice of the Maintenance.

3.2. Term of Support. Groove will only provide the support services described in these Guidelines during the term of the Agreement and will have no obligation to provide any support services to Customer after the expiration or termination of such Agreement.

Glossary of Definitions

For the purpose of these Guidelines, the capitalized terms below will have the following meanings:

7.1 "Customer Contact" means the technical contact person designated by Customer to communicate with Groove for purposes of support. There may be more than one technical contact person.

7.2 "Maintenance" means maintenance work that is performed on hardware or software delivering the Services.

7.3 "Priority" means the level of impact a Request is having on Customer's operations and is used to establish target response times.

  1. P1: Critical Impact - Service Unusable in Production
  2. P2: High Impact - Service Use Severely Impaired
  3. P3: Medium Impact - Service Use Partially Impaired
  4. P4: Low Impact - Service Fully Usable

7.4 "Request" means a request from Customer to Groove for technical support to resolve a question or problem report regarding the Services.