Updated: August 31, 2022
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. EXCEPT AS OTHERWISE AGREED TO BETWEEN THE PARTIES, 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).
1.1 The access rights granted 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 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.
- REPRESENTATIONS AND WARRANTIES
2.1 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.
3.2 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.
- INTELLECTUAL PROPERTY
4.1 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.
4.2 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 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.
- INDEMNIFICATION; LIMITATION OF LIABILITY
5.1 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.
5.2 The SaaS may communicate with third party Web sites, products or service provided by Company or its licensors 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.
5.3 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.
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.
7.1 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.
7.2 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 ISO27001 (or substantially similar) audit report, as applicable.
7.3 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.
7.4 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.