Updated: December 22, 2021
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. The following document (these “Terms of Service”) describes the terms under which Groupize, Inc. (“Groupize“) offers each individual or entity (hereinafter, “Company”) access to its Services through the Services (defined below).
These Terms of Service and the applicable Work Order (defined below) in which these Terms of Service are referenced together comprise a binding written agreement (the “Agreement”) between the Company identified in the Work Order and Groupize effective as of the date of mutual execution (the “Effective Date”) of the Work Order(s) by Groupize and Customer.
1.1 Subject to the terms and conditions of the Agreement, Groupize (i) hereby grants to Company a non-exclusive, non-transferable, fee-based subscription right to access and use a unique instance of the Groupize group travel services software, having the functionality set forth in one or more work orders agreed to by Groupize and Company from time to time (each, a “Work Order”), hosted remotely by or on behalf of Groupize (the “SaaS”) through unique log-in rights for the terms set forth in the Work Order (the “Work Order Term” or “Subscription Term”) (provided that no Work Order shall have a Work Order Term or Subscription Term exceeding thirty-six (36) months); and further provided that such Work Order(s) may place limitations on the number of Authorized Users and/or the volume of SaaS made available thereunder; and (ii) agrees to provide Company with first level support for the SaaS as set forth in Exhibit A-1 attached hereto and incorporated herein and such other services as are set forth in a Work Order (collectively, with the SaaS, the “Services”). In the event that Company requests and Groupize elects to perform services in addition to the Services, Groupize shall prepare a new Work Order or an amendment or change order to an existing Work Order for Company approval. Any such additional Work Orders, amendments or change orders shall only be effective and considered part of the Services upon the written approval of both Parties.
1.2 The access rights granted in Section 1.1 include a right for Company to grant (i) administrative access to the SaaS to its and its vendor’s and contractor’s administrative/travel personnel (collectively, “Authorized Users”) through the use of unique log-in information for the internal business purposes of Company only, and (ii) access to the SaaS to individual persons who are invited to Company events for which the Services are being used under the Agreement (“Event Invitees”) through invitations sent to such Event Invitees by the SaaS as administered by Company.
1.3 Company acknowledges and agrees that either Company or Groupize may include the trademarks, logos and colors of Company (collectively, the “Licensed Indicia”) within the SaaS as set forth in the applicable Work Order and hereby grants Groupize a non-exclusive, non-transferable right and license to use/host such Licensed Indicia for such purpose only. Groupize acknowledges that it will not acquire an interest of any kind in the Licensed Indicia or goodwill associated therewith by virtue of the use hereunder. Company agrees to cooperate with and make available such personnel, license and other resources to the extent necessary for Groupize to perform the Services as contemplated by each Work Order.
1.5 Access to the SaaS is limited to the version in Groupize’s production environment, accessed via the internet by use of a Groupize-supported browser. Groupize regularly updates the SaaS and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. Company is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the SaaS, including but not limited to internet access and adequate bandwidth.
2. REPRESENTATIONS AND WARRANTIES
2.1 Each Party represents and warrants that it has all necessary right, power and authority to enter into the Agreement and to perform the acts required of it hereunder, and the entry into the Agreement by it, and the performance by it of its obligations and duties hereunder, does not and will not violate any law, rule or regulation applicable to it or any agreement by which it is bound.
2.2 Groupize warrants that the SaaS will materially conform to the technical standards set forth in Exhibit A-2 attached hereto and incorporated herein.
2.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 2, GROUPIZE MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, UNDER THIS AGREEMENT AND GROUPIZE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES REGARDING FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, GROUPIZE MAKES NO WARRANTY THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
3.1 Company shall not, and shall not allow Users or others to, (i) combine the Services or Software (defined below) with other software other than as approved of by Groupize; (ii) reverse engineer, disassemble, decompile, or attempt to reconstruct, identify or discover or otherwise derive the source code, underlying ideas, underlying interface techniques or algorithms, or modify, port, translate, localize, or create derivative works based on the Services or Software by any means whatsoever; (iii) create instances of or copy, provide access to (other than as specifically set forth in the Agreement) or sublicense, resell, distribute or otherwise use the Software for commercial time-sharing, rental or service bureau use; or (iii) take any action or fail to take any action that would cause any of the Services or Software to be placed in the public domain or to be disclosed to a third party. Any rights to the Services and Software not specifically granted herein shall be reserved for Groupize. For purpose of the Agreement, “Software” shall mean all software (in object and source form), and all underlying algorithms, user interfaces and network and database designs and schemas, architecture, class libraries, and objects, all unique expressions of the selection, organization and presentation of user visible functions, all training materials and documentation (both printed and electronic), all processes, analyses and methodologies, all know-how, and all trade secrets and any related intellectual property rights throughout the world (whether owned or licensed from a third party) used by Groupize to perform the Services or provided under the Agreement and all corrections, fixes, modifications, enhancements, updates, upgrades, and customizations thereto and derivative works thereof developed solely by Groupize or by or with the input of another party. Company shall be responsible for all actions taken by Users arising from access to the SaaS and a violation of the Agreement by a User shall constitute a violation of the Agreement by Company.
3.3 Company may not remove or export or permit a User to remove or export from the United States or allow the export or re-export of the Services or Software, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The software included as part of the Software and the Services are commercial items, as defined in FAR 2.101. Such software is “commercial computer software,” and its related documentation is “commercial computer software documentation,” as described in FAR 12.212. Consistent with FAR 12.212, access to and use of such software will be governed by the Agreement.
4.1 Company agrees to pay Groupize the fees and charges (collectively, the “Fees”) set forth in each Work Order in US Dollars in accordance with the terms set forth therein. Fees paid in advance shall be non-refundable. Groupize reserves the right to increase Fees payable under a Work Order at any time upon sixty (60) days’ written notice prior to the renewal of a Subscription Term.
4.2 Failure to make timely payments of undisputed amounts is a material breach of this Agreement and Groupize may suspend its performance obligations. Company shall reimburse Groupize for expenses incurred, including interest and reasonable attorney fees, in collecting amounts due under this Agreement that are not under good faith dispute by Company. Amounts paid or payable for the SaaS are not contingent upon the performance of any other services. Company agrees that its use of the SaaS hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Groupize regarding future functionality or features.
5. TERM AND TERMINATION
5.1 Unless terminated earlier as set forth herein, the terms of the Agreement start on the Effective Date and end at the end of the Subscription Term (the “Term”). Each Work Order Form will renew at the end of its Subscription Term for a term equal to the initial Subscription Term unless Company provides written notice of nonrenewal 60 days prior to the end of the initial Subscription Term.
5.2 Either Party may terminate the Agreement immediately on written notice (and without prejudice to any other rights or remedies it may have) in the event (a) of a breach by the other Party of any term of the Agreement if the breaching party fails to correct or cure the breach within thirty (30) days after receipt of notice stating the nature of the breach, or (b) in the event the other Party is declared insolvent or bankrupt, or makes an assignment of substantially all of its assets for the benefit of creditors, or a receiver is appointed or any proceeding is demanded by, for or against the other Party under any provision of the applicable bankruptcy laws that is not terminated within thirty (30) days.
5.3 All Services shall terminate as of the effective date of termination or expiration of the Agreement. Upon the termination or expiration of the Agreement, or at any other time when requested, each Party shall promptly return all Confidential Information of the other Party. All Fees earned and unpaid as of the effective date of termination or expiration shall become immediately payable. In addition, if such fees are contemplated in a Work Order, Company shall pay Groupize all Fees based on transaction bookings using the SaaS occurring after the effective date of termination or expiration of the Agreement. The provisions of Sections 1.4, 3, 5.3, 6, 7, 8, 9, and 10 shall survive the termination or expiration of the Agreement.
6. INTELLECTUAL PROPERTY
6.1 Each Party acknowledges and agrees that it does not have, and nothing contained in the Agreement will provide, any claim, right, title or interest in or to the other Party’s copyrights, trademarks, patents, or trade secrets or any other intellectual property or proprietary right (collectively, “Intellectual Property”) except as specifically set forth in Sections 1.1, 1.2 and 1.3. Further, each Party acknowledges and agrees that it will use the other Party’s Intellectual Property solely as expressly permitted under, and consistent with, the Agreement. Each Party acknowledges and agrees that the other Party (and its licensors, if applicable) has complete authority to control the use of its Intellectual Property. Specifically, Company agrees that all right, title and interest in and to the Services, the Software (excluding the Licensed Indicia) and ownership of all patent, copyright, trade secret, trademarks and other intellectual property rights pertaining thereto shall be and remain the sole property of Groupize. Company shall not be an owner of any copies of or have any interest in, the Services or the Software, but rather, is granted the right, pursuant to and subject to the limitations in the Agreement, to access the SaaS. Nothing in the Agreement contemplates the joint development, joint works of authorship, or joint ownership of any Intellectual Property, and the Agreement shall not be construed so as to effect such joint development, joint works of authorship or joint ownership. If the Parties desire to engage in any joint development efforts during the Term, the ownership rights of such developments shall be established only in a writing signed by each Party.
6.2 As between Customer and Groupize, Customer owns all rights, title and interest in and to all Customer Data (defined below). Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and warrants that it has and will have all rights and consents necessary to allow Groupize to use this data as contemplated by this Agreement. Customer hereby grants to Groupize during the Subscription Term a royalty-free, fully-paid, non-exclusive, non-transferable (except as set forth in Section 11.6 (Assignment)), sub-licensable, worldwide right to use and process Customer Data solely for the purpose of providing to Customer the Services and any other activities expressly agreed to by Customer. “Customer Data” means any materials, information, data, code, content, and other information that Customer, or its employees or agents, collect (or which Groupize collects on behalf of Customer) or transmit to Groupize via the SaaS, or via another medium for the purpose of display or transmission via the SaaS.
7. INDEMNIFICATION; LIMITATION OF LIABILITY
7.1 Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, and its directors, officers, agents and employees (the “Indemnified Party”), from and against any and all loss, liability and expense (including reasonable attorneys’ fees) suffered or incurred the Indemnified Party by reason of any third party claims, proceedings or suits to the extent based on or arising out of any claim for infringement of any third party patent, copyright, trade secret, trademark or other proprietary right based on the Indemnified Party’s use of the Intellectual Property of the Indemnifying Party. If either Party believes that any Intellectual Property provided by it under the Agreement has become, or in the opinion of such Party may become, the subject of a claim for infringement, the Party may, at its election and expense: (i) procure for the other Party the right to continue using the same or (ii) replace or modify the same so that it becomes non-infringing. The Party shall elect one of the above remedies in the event of a preliminary or permanent court order prohibiting use of the Intellectual Property on a temporary or permanent basis. The second sentence of this Sections 7 states each Party’s entire right and liability and sole and exclusive remedies with regard to any intellectual property infringement. Notwithstanding anything to the contrary contained herein, Company acknowledges that all bookings and consumption of travel by a User using the SaaS is a transaction directly with the applicable travel property (the “Property”) and not Groupize. Each such Property, and neither Groupize nor its officers, directors, employees or affiliates shall be liable to Company or a User in respect of any act or omission on the part of such Property, including with respect to product liability claims or claim of any negligence or wrongful act.
7.2 The SaaS may communicate with third party Web sites, products or service provided by Company or its licensors (as set forth in the Work Order) or enable Company to add links to Web sites and access to content, products and services of third parties, including in each case, advertisers, affiliates and sponsors of such third parties. Groupize is not responsible for any third party Web sites or third party product, services or content provided on or through the SaaS and Company bears all risks associated with the access and use of such Web sites and third party content, products and services. The obligations in subsection 7.1 will not apply to the extent any infringement arises from portions or components of intellectual property (i) not supplied by the Indemnifying Party, (ii) that are modified by the Indemnified Party where the alleged infringement relates to such modification and would not exist in the absence of such modification, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination and would not have arisen in the absence of such combination, (iv) where the Indemnified Party continues allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement, or (v) in the case of Company, where Company’s or a User’s use of the Services is not strictly in accordance with the terms and conditions of the Agreement, where such infringement would not have arisen in the absence of such use.
7.3 IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES (COLLECTIVELY, “ITS REPRESENTATIVES”) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF ANY SUCH LOSS OR DAMAGES WERE REASONABLY FORESEEABLE. THE TOTAL AGGREGATE LIABILITY OF GROUPIZE FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO GROUPIZE BY COMPANY UNDER THIS AGREEMENT IN DURING THE SUBSCRIPTION TERM YEAR DURING WHICH SUCH CLAIM ARISES.
7.4 ACKNOWLEDGEMENT. THE FEES CHARGED UNDER THIS AGREEMENT REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD AFFECT SUBSTANTIALLY THE FEES CHARGED BY GROUPIZE. IN CONSIDERATION OF THESE FEES, CUSTOMER AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
Each Party agrees to use commercially reasonable efforts to prevent any unauthorized copying, use, distribution, or transfer of possession of the other party’s non-public confidential information (“Confidential Information”). At a minimum, each Party shall maintain at least the same procedures regarding the other Party’s Confidential Information that it maintains with respect to its own Confidential Information of a similar nature, such procedures to conform to standards no less than commercially reasonable. A Party’s Confidential Information shall not include any information which (i) is or becomes part of the public domain through no act or omission of the other Party; (ii) is lawfully acquired by the other Party from a third party without any breach of the obligation of confidentiality; or (iii) is required to be disclosed in accordance with judicial or other governmental order, provided that the receiving Party shall give the disclosing Party reasonable notice prior to such disclosure. Each Party acknowledges that any use or disclosure of the other Party’s Confidential Information in an inconsistent manner with the provisions of the Agreement may cause the disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate. Each Party further agrees that the disclosing Party shall be entitled to seek from a court of competent jurisdiction injunctive or equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
9.1 Information Security Program. Groupize shall maintain commercial safeguards against the unauthorized destruction, disclosure or alteration of Customer Data that is in the possession of Groupize and will abide by the Information Security Measures stated herein. Groupize shall maintain an Information Security program based on generally accepted industry Information Security standards and frameworks (e.g., the then current version of ISO/IEC 27001 or NIST Cybersecurity Framework). Groupize shall also maintain PCI-DSS compliance for all Services and/or systems which process, transmit and/or store credit card information. The Information Security program shall be in place to plan, implement, manage and monitor processes to meet Groupize information security objectives and requirements applicable to the Services. The Information Security program shall also include performing Information Security Risk Assessments. The Information Security Risk Assessments will be performed on an annual basis with a purpose of identifying, ranking and resolving security risks through treatment activities according to a documented, risk-based methodology. Results of internal Information Security Risk Assessments are deemed Confidential to Groupize and are not available for external review or use.
9.2 Personal Data Safeguards. Groupize will maintain safeguards against the unauthorized destruction, disclosure or alteration of Customer Data that is considered personally identifiable information that is in the possession of Groupize. Upon Customer’s written request up to once annually, Groupize will provide Customer with a current copy of its Letter of Attestation with respect to its system architecture and vulnerability from an independent third-party assessor and a summary of SOC 2 (or substantially similar) audit report, as applicable.
9.3 Security Incident Management. Groupize shall maintain processes to identify, respond to, contain and minimize the impact of Security Incidents to Customer Data. A “Security Incident” shall be defined as an event that results in the unauthorized disclosure of any personally identifiable or confidential Customer Data. In the event of a Security Incident of Customer Data while maintained in Groupize systems, Groupize shall notify Customer no later than forty-eight (48) hours after the Security Incident has been confirmed. The notice shall include the approximate date and time of the Breach and a summary of relevant, then-known facts, including a description of measures being taken to further investigate and address the Security Incident.
9.4 Compliance with Data Privacy Laws. Customer and Groupize will comply with all applicable privacy laws and regulations and will provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations. If the SaaS involves the processing of personal data of data subjects (as defined by applicable data protection legislation) located within the European Economic Area or Switzerland on behalf of Customer, then the Parties agree that Groupize’s data protection agreement located at [www.groupize.com/dpa] shall apply.
Any notices required to be given or delivered to either Party under the Agreement will be in writing and addressed to the Party at the address indicated above or such other address as the Party may designate, in writing, from time to time. All notices must be given in one of the following manners and shall be deemed to have been given or delivered upon: (a) personal delivery, or (b) two (2) business days after deposit with any return receipt express courier (prepaid).
11.1 Entire Agreement. This Agreement contains the entire understanding between the Parties with respect to the transaction agreed to and supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of the Agreement. Waiver of any condition or covenant of the Agreement or failure to exercise a right or remedy shall not be considered to imply or constitute a further waiver of the same or any other condition, covenant, right or remedy. All pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect.
11.2 Amendments. The Agreement cannot be varied, amended, changed, waived, or discharged except by a writing signed by an authorized representative of each Party.
11.3 Governing Law. The terms of the Agreement shall be governed by the laws of the Commonwealth of Massachusetts and each party hereby consents to the jurisdiction of the courts of such Commonwealth.
11.4 Force Majeure. Neither Party shall be responsible for (and the following shall not constitute a breach of the Agreement) any failure or delay in performance hereunder caused by acts of God, flood, fire, war, public enemy or other similar acts beyond its control; provided that, in order to be excused from delay or failure to perform, such Party must act diligently to remedy the cause of such delay or failure and provide notice of such delay or failure to the other Party. Neither Party shall be responsible for any failure or delay in performance hereunder caused by failures of communications systems or equipment.
11.5 Relationship of the Parties. Nothing contained in the Agreement shall be construed to constitute a partnership, joint venture or employment relationship between the Parties. Neither Party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party. Each Party is and shall remain an independent contractor responsible for its own actions.
11.6 Assignment; Subcontractors. Company may not assign or transfer the Agreement or any rights or obligations hereunder without the prior written consent of Groupize, which consent shall not be unreasonably withheld. Groupize, in its sole discretion, may assign or transfer the Agreement or any rights or obligations hereunder. Groupize may designate an agent or subcontractor to perform certain tasks and functions under this Agreement. However, Groupize will remain responsible for performance of its duties under this Agreement.
11.7 Counterparts. The Parties hereto acknowledge and agree to accept and be bound by facsimile transmitted copies of the Agreement and its counterparts including facsimile signatures of the Parties hereto. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the Parties.
EXHIBIT A-1: Support Services
Groupize agrees to provide support services for Company that comply with the following requirements (the “Contact Center Services”):
– Contact Center Services will be available from Monday through Friday, 9:00 AM to 6:00 PM EST, except for holidays (“Business Hours”).
– Eighty percent (80%) of Company’s calls to Groupize’s Contact Center during Business Hours will be answered within 30 seconds.
– Eighty percent (80%) of emails from Company to Groupize’s Contact Center will be answered within 6 Business Hours.
Groupize shall report its compliance with the foregoing service levels upon Company’s written request. If Groupize fails to comply with the foregoing service levels, Groupize must supplement its monthly report with a written report identifying suspected causes of such failure and actions being taken to resolve the causes of such failure. In addition, if, during any two (2) consecutive months, Groupize (i) answers fewer than sixty percent (60%) of Company’s calls within twenty (30) seconds, or (ii) answers fewer than sixty percent (60%) of Company’s emails within six (6) hours, then Company may terminate the Agreement without penalty by providing thirty (30) days’ written notice of termination. Within ten (10) days following the execution of the Agreement, each Party shall provide to the other Party names and contact information for supervisory staff in its Contact Centers, along with instructions for escalation of Company Contact Center issues.
EXHIBIT A-2: Technical Standards
I. General Design Requirements for the SaaS.
Notwithstanding anything herein to the contrary, Groupize reserves the right to cease support of any browser listed above in the event that such browser represents a security or vulnerability risk or jeopardizes Groupize’s ability to meet its obligations under the Agreement.
II. Reliability Service Metrics for the SaaS. The SaaS shall operate materially in accordance with the following requirements:
Groupize shall report its compliance with the foregoing service levels upon Company’s written request. If it is determined that Groupize failed to comply with the foregoing service levels, Groupize will provide a written report identifying suspected causes of such failure and actions being taken to resolve the causes of such failure. If, during any two (2) consecutive months, Groupize (i) fails to provide at least ninety-eight percent (98%) monthly uptime operation, excluding permitted, reasonable, previously scheduled maintenance downtime and the consequences of downtime of thirdparty providers (e.g. Travelport) or (ii) exceeds ten (10) seconds of average page download speed, then Company may terminate the Agreement without penalty by providing thirty (30) days’ written notice. Within ten (10) days following the execution of the Agreement, each Party shall provide to the other Party names and contact information for supervisory staff in its technology operations centers, along with written instructions for escalation of technical issues.
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