NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions contained herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions. Unless context clearly indicates to the contrary, the following terms shall have the following meanings when capitalized and used herein:
a. “Customer Data” shall mean all information or data, electronic or otherwise, provided or submitted by Customer or Permitted Users, to or for use in the Groundwork Services, except that Customer Data shall not include Customer Statistics.
b. “Customer Statistics” shall mean data and information related to Customer’s and Permitted Users’ use of the Services that are used by Groundwork in an aggregated and anonymized manner to compile statistical and performance information related to the provision and operation of the Groundwork Services, and for any other use permitted by this Agreement.
c. “End Customers” shall mean homeowners and other parties requesting services of Customer or quotes for services customarily provided by Customer.
d. “Feedback” shall have the meaning set forth in Section 6(c).
e. “Fees” shall mean those sums payable by Customer to Groundwork, in consideration of the provision of the Groundwork Services, in the amount shown for the specific subscription plan that Customer selected on the pricing and order page on Groundwork’s website, located at https://www.hellogroundwork.com/pricing (the “Pricing Page”), less any discount applied at checkout, when Customer initially signed up for the Groundwork Services. Fees are charged on a per Site basis.
f. “Initial Term” shall have the meaning set forth in Section 12(a).
g. “Intellectual Property Rights” shall mean any and all registered and unregistered rights granted, applied for, renewals thereof, or arising under common law whether registrable or not, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other rights commonly known, in whatever jurisdiction, as intellectual property rights under applicable law, including, without limitation, rights known as ‘moral rights,’ and all similar or equivalent rights or forms of protection, in any part of the world.
h. “Malicious Code” shall mean any and all disabling or damaging devices, algorithms, routines, subroutines, programs, or other similar data including, but not limited to, viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.
i. “Permitted Users” shall mean an individual who is authorized by the Customer to use the Services pursuant to this Agreement, and to whom the Customer (or, when applicable, Groundwork at Customer’s request) has supplied a user identification and password for Services utilizing authentication. Permitted Users may include, for example, the Customer’s directors, board of directors, employees, consultants, contractors, and agents.
j. “Groundwork IP” shall mean the Groundwork Services, user manuals, handbooks, guides, or other similar publications relating to the Groundwork Services, which are provided by Groundwork, in physical, electronic, or other form, and any and all Intellectual Property Rights related to the foregoing. Groundwork IP shall also include all Intellectual Property Rights, trade names, trade dress, service marks, logos, corporate names, domain names, goodwill associated with the foregoing, know-how, and Confidential Information relating to or developed by Groundwork in connection with the creation, operation, and improvement of the Groundwork Services and Groundwork’s business and all derivative works based upon any of the foregoing. For the avoidance of any doubt, Groundwork IP shall include, without limitation, Customer Statistics and any information, data, or other content derived from Groundwork’s analysis of Customer’s access to, and use of, the Groundwork Services, but Groundwork IP shall not include Customer Data.
k. “Renewal Term” shall have the meaning set forth in Section 12(a).
l. “Groundwork Services” shall mean those certain software-as-a-service (SaaS) web-based customer sales and communication product and platform called “Groundwork” and its related content, for use by contractors engaged in skilled physical trades to facilitate virtual customer management and communication with End Customers.
m. “Site” shall mean each Customer location for which Customer desires delivery of the Groundwork Services and in connection with which Customer and Permitted Users shall have access to, and use of, the Groundwork Services pursuant to the terms of this Agreement.
n. “Taxes” shall mean any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use, sales, excise, or other similar taxes.
o. “Term” shall mean, as applicable, either (i) for a monthly subscription to the Groundwork Services, the one-month period beginning on the Effective Date and ending on the day that is one day before the same day of the immediately following calendar month (unless there is no such day in the following month, in which case the monthly Term shall end on the final day of such month); for example, if a monthly Term begins on January 31st, the end of the first monthly Term shall be February 28th or 29th, as applicable, or (ii) for an annual subscription, the twelve-month period beginning on the Effective Date and ending on the day before the one-year anniversary of the Effective Date. Term shall include an Initial Term and any Renewal Terms as may be effective from time to time.
2. Access to and Use of Groundwork Services.
a. Provision of Access | Reservation of Rights | Additional Sites. Subject to, and contingent upon, Customer’s payment of the Fees provided for in this Agreement and compliance with the terms and conditions contained herein, Groundwork shall grant Customer a non-exclusive, non-transferrable, non sublicensable right to access and use the Groundwork Services, during the Term, solely by Permitted Users, in connection with the provision of Customer’s services to End Customers. All rights not expressly granted to Customer pursuant to this Agreement shall be and are retained by Groundwork. Nothing herein shall be construed as a grant of any Intellectual Property Rights by Groundwork to Customer by implication, waiver, estoppel, or otherwise. Groundwork expressly retains the right to, in its sole discretion, make any changes to the Groundwork Services that it deems necessary or useful with respect to the Groundwork Services, or to comply with applicable law, provided such changes to the Groundwork Services shall not diminish or eliminate any material functionality or feature of the Groundwork Services unless required for compliance with a change in applicable laws.
c. Customer Internet Access. DSL, cable, fiber, high-speed wireless or cellular data, or another form of high-speed Internet connection is required for proper access to, and use of, the Groundwork Services. At all times during the Term, Customer shall be responsible for procuring and maintaining the network connections and all software and equipment that may be required for Customer to connect to the Groundwork Services, including, but not limited to, “browser” software that supports protocols utilized by the Groundwork Services. Groundwork assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Groundwork. Groundwork assumes no liability for violations of security or privacy requirements of applicable law arising out of Customer’s choice of internet service provider, wireless network configuration, cellular data service provider, or other form of internet connection that Customer elects to use to connect to the Groundwork Services.
d. Permitted Users | Passwords. Groundwork shall permit Customer to authorize access to the Groundwork Services to Customer’s Permitted Users. Customer shall require all Permitted Users to create unique accounts and passwords in order to log in to the Groundwork Services. As part of the account creation process, all Permitted Users shall be required to accept the then-current Groundwork terms of service or similar policy governing the Permitted User’s use of the Groundwork Services. Permitted User logins and passwords are for designated Permitted Users and cannot be shared or used by more than one Permitted User or individual. Regardless of the length of the Term, unused or vacant Permitted User logins expire at the end of each then-current Term. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Groundwork Services and shall promptly notify Groundwork of any unauthorized access to or use of the Groundwork Services and any loss, theft, or unauthorized use of any Permitted User’s password, name, or Groundwork Services account number. Customer shall further promptly notify Groundwork if Customer becomes aware of any loss or theft of a device from which a Permitted User has accessed the Groundwork Services, and Customer shall have the right to immediately suspend the ability for such Permitted User’s account to access the Groundwork Services until appropriate steps have been taken to secure such Permitted User’s account from inappropriate usage.
e. Restrictions on Use. Customer shall not access or use the Groundwork Services for any other purpose other than as expressly contemplated by this Agreement. Without limiting the generality of the preceding sentence, at any time during or after the Term, Customer shall not, whether directly or indirectly, and shall take reasonable steps to not permit any Permitted User to: (i) copy, modify, distribute, or create derivative works based upon the Groundwork Services, whether in whole or in part, or assist, in any way, any other party in copying, modifying, distributing, or creating derivative works based upon the Groundwork Services, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, publish, transfer, or otherwise make available the Groundwork Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or code of the Groundwork Services, whether in whole or in part; (iv) remove any proprietary notices from the Groundwork Services; (v) send via, store within, or upload to the Groundwork Services (A) any Malicious Code, (B) any material that infringes the rights of any third party, or (C) illegal or obscene material; or (vi) use the Groundwork Services in any manner, or for any purpose, that infringes, misappropriates, or otherwise violates any Intellectual Property Rights of any third parties, or otherwise violates applicable law.
f. Suspension or Termination of Services. Notwithstanding anything to the contrary contained herein, Groundwork shall have the right, at any time, to suspend or terminate Customer’s, or any Permitted User’s, access to, and use of, any portion or all of the Groundwork Services if: (i) Groundwork receives a judicial demand, order, subpoena, or law enforcement request from any court of competent jurisdiction or governmental authority that expressly, or by reasonable implication, requires Groundwork to do so; (ii) Groundwork believes, in its sole and reasonable discretion, that (A) Customer or any Permitted User has failed to comply with the terms of this Agreement, (B) Customer or any Permitted User has accessed or used the Groundwork Services beyond the scope of the rights granted pursuant to this Agreement, for any purpose not authorized under this Agreement, or in a manner that does not comply with any instruction or requirement of Groundwork regarding the use of the Groundwork Services, (C) Customer or any Permitted User is, has been, or is likely to be, involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Groundwork Services, or (D) this Agreement expires or is terminated; or (iii) subject to all applicable laws, Customer has ceased to do business in the ordinary course, made an assignment for the benefit of creditors or any similar disposition of its assets, or become the subject of bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
g. Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s and its Permitted Users’ accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Groundwork Services, and promptly notify Groundwork of any such unauthorized access or use; (iii) ensure sufficient measures are taken to secure devices from which Permitted Users access the Groundwork Services; (iv) have sole responsibility for securing from End Users any consents or permissions that may be required by applicable law, including, without limitation data privacy and security laws and other laws and regulations relating to personally identifiable information in connection with the use of the Groundwork Services by Customer; and (v) comply with all applicable local, state, federal, and foreign laws in using the Groundwork Services.
h. Customer Statistics. Customer expressly acknowledges that Groundwork shall have the right to monitor Customer’s use of the Groundwork Services in order to collect and compile Customer Statistics. Groundwork shall retain all right, title, and interest in and to Customer Statistics. Groundwork shall have the right to compile Customer Statistics based upon Customer Data sent via, uploaded, or input into the Groundwork Services, except that, if such compilation or creation of Customer Statistics involves the use of personally identifiable information and is subject to regulation under applicable federal or state laws that prohibit the further use of such personally identifiable information unless such information is de identified, Groundwork shall only engage in such compilation or creation of Customer Statistics to the extent that Groundwork de-identifies such personally identifiable information in compliance with applicable law. Groundwork shall have the right to make use of the Customer Statistics for purposes of improving the Groundwork Services, developing new products and services, and any other business purpose. Notwithstanding the foregoing, to the extent that any Customer Statistics include information or data subject to federal or state information privacy or security regulations, Groundwork shall only be entitled to use such Customer Statistics in accordance with and to the extent permitted by applicable laws.
i. Customer Record Keeping and Data Storage. The Groundwork Services are in no way intended to serve as, and do not substitute or replace the need for, Customer’s maintenance of independent records, regular data backups, and redundant data archives of End Customer records, information, or other Customer Data, and Customer is and shall solely be responsible for each of the foregoing. GROUNDWORK HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, DELETION, CORRUPTION, OR INABILITY TO RECOVER ANY END CUSTOMER, INFORMATION, OR OTHER CUSTOMER DATA.
3. Onboarding and Website Integration | Limited License to Use Customer Trademarks. In conjunction with the provision of the Groundwork Services, Groundwork shall provide reasonable assistance to Customer, or a third-party service provider that maintains and hosts Customer’s website, to integrate the Groundwork Services onto Customer’s website, which such integration services shall be limited to two hours of Groundwork personnel time. If Customer requests the Groundwork Services that are integrated onto the Customer’s website to be branded with Customer’s logo, name, trademarks, service marks, or trade names (collectively the “Customer Marks”), Customer shall grant Groundwork a royalty free, limited license to use, reproduce, publicly display, and create derivative works of and incorporating the Customer Marks to the extent required to integrate the Customer Marks into the Groundwork Services and interface being integrated into Customer’s website, which such license shall remain in effect through the Term of this Agreement.
4. Fees | Payment | Taxes.
a. Fees. In consideration of Groundwork’s provision of access to and use of the Groundwork Services, Customer shall pay to Groundwork the Fees for the applicable Initial Term or Renewal Term, less any discount applied at checkout. Fees for any Renewal Term will be based on the length of the Renewal Term and the then-current Fees for the applicable subscription plan as described on the Pricing Page on the date of renewal, less any discounts applied at checkout. Fees are based on the provision of the Services and not actual usage. Except as otherwise expressly set forth herein, payment obligations hereunder are non cancelable, Fees paid are non-refundable, and the Groundwork Services purchased cannot be decreased during the Term. Groundwork may increase the Fees for the Groundwork Services for the subsequent Term by providing written notice to Customer at least thirty (30) days prior to the date that the increase will become effective. Any discounts applicable to a current Term are applicable to such Term only and are not a guarantee by Groundwork of any particular discount for any Renewal Term.
b. Set-up Fee for Monthly Subscription. If Customer selected a monthly subscription plan on the Pricing Page, then, in addition to the Fee charged to the Customer for the first month of such subscription, Customer shall pay to Groundwork a one-time account set-up fee in the amount described on the Pricing Page when Customer initially subscribed to the Groundwork Services (the “Set-up Fee”). The Set-up Fee shall be billed and due together with the Fees for the first month of the Term.
c. Promotional Offers for Initial Term of Annual Subscriptions. If Customer selected and paid in full for an Initial Term of a subscription plan on the Pricing Page that included a promotional offer such as a trial period during which Groundwork would refund Fees during a certain period of time during the Initial Term, and if Customer elects to terminate its subscription in accordance with such promotional offer before the expiration of the time period during the Initial Term described on the Pricing Page for the subscription plan selected by Customer, then Groundwork shall refund the Fees to Customer within 15 days after Customer’s termination of its subscription (the “Promotional Refund”). Any Promotional Refund will be applied as a credit to the same credit card that is on file with Groundwork’s payment processor pursuant to Section 4(d) below. For the avoidance of any doubt, the Promotional Refund is only available to Customer if Customer is a new subscriber to the Groundwork Services.
d. Payment and Receipt. Payment of the Fees and Set-up Fee, if applicable, will be due in advance on the first day of the applicable Term. All Fees, the Set-up Fee, and other amounts due to Groundwork hereunder shall be paid by credit card through Groundwork’s third-party payment processor and billing management service. Customer shall be required to provide Groundwork’s third-party payment processor with such information as may be required from time to time to facilitate such credit card transactions and shall be required to notify such third-party payment processor of any changes to the same. If Customer’s credit card is declined or expires, Groundwork reserves the right to immediately suspend Customer’s access to the Groundwork Services and, if payment of Fees is not made within ten (10) days, Groundwork may terminate this Agreement without any further obligation or liability hereunder. Upon payment of the Fees and Set-up Fee, if applicable, Groundwork shall send to Customer a receipt showing payment in full for the Fees and the Set-up Fee, if applicable, for the applicable Term. In the event Groundwork institutes legal proceedings for the collection of the Fees or any other amounts due hereunder, Groundwork shall be entitled to all reasonable costs and expenses actually incurred in the collection thereof, including, without limitation, reasonable attorneys’ fees.
e. Taxes. Unless otherwise stated, the Fees do not include Taxes. Customer shall be responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Groundwork’s net income or property. If Groundwork has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be included in the Invoices and shall be the responsibility of Customer and paid by Customer, unless Customer provides Groundwork with a valid tax exemption certificate authorized by the appropriate taxing authority.
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”) that (i) if disclosed orally, is designated as confidential at the time of disclosure, (ii) if disclosed in writing, is marked as “Confidential” or “Proprietary,” or (iii) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Subscription Forms hereunder), the Customer Data, provision of the Groundwork Services, Fees and Fee structures, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall not include any information that: (A) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (B) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (C) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (D) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing or utilizing the Groundwork Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
d. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
e. Survival. Each Party’s obligations pursuant to this Section 5 with regard to Confidential Information are effective as of the Effective Date and shall terminate (i) for Confidential Information that does not constitute a trade secret under applicable law, on the date that is two (2) years after the expiration or termination of this Agreement, and (ii) for Confidential Information that constitutes a trade secret under applicable law, on the date that such Confidential Information no longer constitutes a trade secret under applicable law.
6. Intellectual Property Ownership | Rights.
a. Groundwork IP. Customer expressly acknowledges that Groundwork reserves, retains, and owns all rights, title, and interest, including, without limitation, Intellectual Property Rights arising in any jurisdiction worldwide, in and to the Groundwork Services and Groundwork IP.
b. Customer Data. Groundwork expressly acknowledges that Customer reserves, retains, and owns all rights, title, and interest, including, without limitation, Intellectual Property Rights arising in any jurisdiction worldwide, in and to the Customer Data. Customer hereby grants to Groundwork a non exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise make use of and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Groundwork to provide the Groundwork Services. In addition to the foregoing, Customer hereby grants to Groundwork a non-exclusive, transferable, sub-licensable, royalty-free, irrevocable, worldwide, perpetual license to use, reproduce, display, and create derivative works based upon anonymized or de-identified Customer Data, to the extent permitted by applicable federal or state laws by itself or in combination with any other data or information for the purposes of providing the Groundwork Services to Customer and improving the Groundwork Services.
c. Feedback. If Customer or any Customer personnel or agents send, transmit, or in any way provide any communications or materials to Groundwork, by any medium or means now known or hereafter developed, suggesting or recommending changes to the Groundwork Services or any Groundwork IP, including, without limitation, new features or functionality relating to the foregoing, or any other comments, questions, or suggestions (the “Feedback”), Groundwork shall have the right to use such Feedback without any further obligation to Customer. Customer hereby assigns to Groundwork, on behalf of Customer and Customer’s personnel and agents, all right, title, and interest in, and Groundwork shall be free to use without any further action, the Feedback and any and all ideas, concepts, techniques, or other components contained in the Feedback for any purpose.
a. Groundwork Systems and Security Obligations. Groundwork shall employ reasonable administrative, physical, and technological data security measures and reasonable data security practices, procedures, and safeguards in accordance with customary industry practice. As of the Effective Date of the initial Term, the Groundwork Services are hosted and managed by Amazon Web Services. Nothing in this Section 7(a) shall restrict Groundwork from selecting a different third-party service provider to host and manage the Groundwork Services in the future.
b. Data Breach Notification. Groundwork shall notify Customer as soon as reasonably practicable after Groundwork becomes aware, or is notified by a third-party provider, of the unauthorized access to or acquisition of personally identifiable information of End Customers by a party not otherwise permitted to have access to or use of such personally identifiable information and which such acquisition or access materially compromises the security, integrity, or confidentiality of such personally identifiable information.
c. Customer Control and Responsibility. Customer has and shall retain sole responsibility for: (i) all Customer Data, including, without limitation, its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any of its Permitted Users in connection with the Groundwork Services; (iii) Customer’s information technology infrastructure, including, without limitation, computers, software, databases, other electronic systems, and networks, whether operated directly by Customer or through third party services; (iv) the security of any of its devices that it distributes to Permitted Users for use in connection with the Groundwork Services; (v) the security and use of Customer’s and all Permitted Users’ login credentials and passwords; and (vi) all access to and use of the Groundwork Services directly or indirectly by or through the Customer’s system or the login credentials and passwords of its Permitted Users, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
d. Access and Security. Customer shall employ all reasonable physical, administrative, and technical controls, screening, security procedures, and other safeguards necessary to: (i) securely administer the distribution of all login credentials and passwords to Permitted Users; (ii) protect against any unauthorized access to the Groundwork Services; and (iii) control the content and provision of Customer Data for uploading to the Groundwork Services such that Customer Data shall not violate applicable law.
8. Groundwork Services Uptime. Subject to the terms and conditions of this Agreement and Customer’s compliance with the terms hereof, Groundwork shall use commercially reasonable efforts to make the Groundwork Services available for access by Customer for at least 99.5% of the time as measured over the course of each calendar month during the Term (each calendar month being a “Service Period”) but excluding from calculation of such time any unavailability resulting from an “Exception” (as defined herein) (such availability less Exceptions being the “Uptime Requirement”). For purposes of calculating the Uptime Requirement, the following events are “Exceptions” to the Uptime Requirement and shall be excluded from the calculation thereof: (a) any suspension, termination, or disabling of access to the Groundwork Services arising out of or related to Customer’s failure or delay in performing any of its obligations pursuant to this Agreement, (b) failure of Customer’s internet connectivity, (c) failure, interruption, outage, or other problem with any software, hardware, system, network, equipment, facility, connection, or utility used by Customer in accessing the Groundwork Services that is not provided by Groundwork pursuant to this Agreement, (d) any regularly scheduled downtime or regular maintenance time, and (e) any events or circumstances beyond Groundwork’s reasonable control including, without implied limitation, acts of god, flood, fire, earthquake, other similar disasters, epidemics, pandemics, other public health emergencies, war, invasion, hostilities, insurrection, terrorist threats or acts, explosions, riots, civil unrest, governmental orders or emergency actions, national or local emergencies, disruption of utility services (excluding a shortage or cutoff of utility services to Customer caused by Customer’s refusal to pay for such services), and other similar events. For the avoidance of any doubt, the Groundwork Services shall not be deemed to be not “available” as a result of any Exception.
9. Representations and Warranties | Disclaimer.
a. Mutual Warranties. Each Party hereby represents and warrants to the other Party that such party has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable Party; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.
b. Customer Consent Representation and Warranty. Customer represents and warrants to Groundwork that Customer has obtained from End Customers any consents or permissions that may be required by applicable law for Customer’s proper and lawful use of the Groundwork Services. So long as Customer continues to make use of the Groundwork Services, Customer shall obtain such consents and permissions from new End Customers prior to making use of the Groundwork Services with respect to such End Customers. Notwithstanding the foregoing, Customer is not responsible for obtaining any consents with respect to use of Customer Data by Groundwork other than Groundwork’s use of Customer Data to provide the Groundwork Services.
c. No Virus Warranty. Groundwork warrants that the Groundwork Services will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) when the Groundwork Services are provided to Customer, except for any Malicious Code contained in Customer uploaded attachments or otherwise originating from Customer, its Permitted Users, or its End Customers.
d. Warranty of Compatibility. Groundwork warrants that the Groundwork Services will be compatible with the operating systems for which they are made available and designed and shall continue to be compatible with the version of the operating system in use at the time of Customer’s subscription for a period of two years and with all future versions of such mobile operating system. e. Warranty of Functionality. Groundwork warrants that the Groundwork Services will achieve functionality and availability in accordance with customary commercially reasonable standards as described in Section 8. Customer’s sole and exclusive remedy for Groundwork’s breach of the foregoing warranty relating to the functionality of the Groundwork Services shall be that Groundwork shall be required to use commercially reasonable efforts to modify the Groundwork Services to achieve in all material respects the functionality described.
f. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE GROUNDWORK SERVICES ARE PROVIDED “AS IS” AND GROUNDWORK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN AND WITHOUT LIMITING THE FOREGOING, GROUNDWORK MAKES NO WARRANTY OF ANY KIND THAT THE GROUNDWORK SERVICES OR ACCOMPANYING DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.
a. By Groundwork for Intellectual Property Rights. Groundwork shall defend, indemnify, and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that Customer’s use of the Groundwork Services within the scope of this Agreement infringes the Intellectual Property Rights of such third party; except that Groundwork shall have no such indemnification obligation to the extent such infringement: (i) relates to use of the Groundwork Services in combination with other software, data products, processes, or materials not provided by Groundwork and the infringement would not have occurred but for the combination; (ii) arises from or relates to modifications to the Groundwork Services not made or authorized by Groundwork; (iii) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Groundwork; or (iv) arises from Groundwork’s use of Customer Data or Customer Statistics in accordance with the terms of this Agreement.
b. By Groundwork. Groundwork shall defend, indemnify, and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with any claim that arises from Groundwork’s gross negligence or willful misconduct.
c. By Customer. Customer shall defend, indemnify, and hold Groundwork harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with: (i) any Claim resulting from Customer’s use of the Service other than in compliance with the terms of this Agreement; (ii) any Claim that Customer Data or Customer Marks provided to Groundwork infringes the Intellectual Property Rights of a third party; or (iii) any Claim that arises from Customer’s gross negligence or willful misconduct. d. Procedure. As an express condition to the indemnifying Party’s obligation under this Section 10, the Party seeking indemnification must: (i) promptly notify the indemnifying Party in writing of the applicable Claim for which indemnification is sought; and (ii) provide the indemnifying Party with all non-monetary assistance, information, and authority reasonably required for the defense and settlement of such Claim. The indemnifying Party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified Party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying Party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified Party. The indemnifying Party must obtain the indemnified Party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified Party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
11. Limitation of Liability.
a. GENERAL LIMITATION. EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL GROUNDWORK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE LESSER OF (I) AMOUNTS ACTUALLY PAID BY GROUNDWORK’S INSURANCE ON ACCOUNT OF THE EVENTS GIVING RISE TO THE CLAIM IN QUESTION, OR (II) THE EQUIVALENT OF THE FEES ACTUALLY PAID BY CUSTOMER DURING TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. The foregoing limitation shall not be applicable to Groundwork’s employees or agents malicious conduct or gross negligence.
b. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL GROUNDWORK BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (III) LOSS OF GOODWILL OR REPUTATION, (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GROUNDWORK WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GROUNDWORK, WHETHER ON ACCOUNT OF ACTUAL, CONSEQUENTIAL, OR SIMILAR DAMAGES, EXCEED AMOUNTS ACTUALLY PAID BY GROUNDWORK’S INSURANCE POLICIES, INCLUDING, WITHOUT LIMITATION, COMMERCIAL GENERAL LIABILITY AND CYBER LIABILITY. c. TIME TO FILE CLAIM. NO CLAIM MAY BE BROUGHT BY CUSTOMER PURSUANT TO THIS AGREEMENT UNLESS SUCH CLAIM SHALL BE BROUGHT WITHIN ONE (1) YEAR OF THE ACCRUAL OF SUCH CLAIM.
12. Term & Termination.
a. Term. The “Initial Term” of this Agreement shall begin on the Effective Date and, unless terminated earlier pursuant to this Section 12, will continue for a period of either (i) one month from the Effective Date, subject to the qualifications described in Section 1(o), if the Customer selected a monthly subscription, or (ii) one year from the Effective Date, subject to the qualifications described in Section 1 (o), if the Customer selected an annual subscription. Thereafter, this Agreement shall automatically renew for successive periods of one month or one year, as applicable, based upon the length of the Customer’s most recently ended Term, unless Customer and Groundwork have mutually agreed to change the length of the upcoming Term, until terminated pursuant to this Section 12 (each a “Renewal Term”). The Initial Term together with any and all applicable Renewal Terms shall collectively be the “Term.”
b. Termination. Customer shall have the right to terminate this Agreement, for any reason or for no reason, by providing Groundwork written notice at least five (5) days before the expiration of the then-current Term of Customer’s intent to terminate. Except as expressly set forth in Section 4(c), termination by Customer pursuant to this section shall not relieve Customer of the obligation to pay the full amount of Fees for the current Term. Except as set forth in Section 4(c), Groundwork shall have no obligation to refund any Fees on account of Customer’s termination its subscription for the Groundwork Services. Groundwork shall have the right to immediately terminate this Agreement by providing written notice to Customer in the event that Customer materially breaches this Agreement or uses the Groundwork Services in a manner that violates applicable law. If Groundwork terminates this Agreement pursuant to this Section 12(b), Groundwork shall be entitled to the payment of all Fees for the entirety of the then current Term.
c. Customer Data. At the expiration or termination of this Agreement, Groundwork shall upon Customer’s written request: (i) continue to retain the Customer Data on the Services in read-only manner, as though this Agreement were still in force for a period of up to six (6) months after the effective date of such expiration or termination; (ii) return the Customer Data to Customer in an industry standard format requested by Customer; or (iii) to the extent permitted by law, destroy all copies of the Customer Data held by Groundwork and provide Customer written verification of such destruction. d. Survival. The provisions of Section 1 and Sections 4 through 13 of this Agreement shall survive the expiration or earlier termination of this Agreement.
13. General Provisions.
a. Relationship of the Parties. Groundwork shall be an independent contractor of Customer. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
b. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
c. Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery to the Party to be notified; (ii) the date indicated on the return receipt as the date of delivery or refusal of delivery if sent by registered or certified mail, postage prepaid, return receipt requested; or (iii) on the day sent by email if sent before 5:00 p.m. eastern time, or on the subsequent business day if sent after 5:00 p.m. eastern time or on a non-standard business day. Notices to Groundwork shall be sent to 1025 W Poplar Street, Zionsville, IN 46077. Notices to Customer shall be addressed to Customer’s signatory of this Agreement at the email address currently on file with Groundwork, which such email address may be updated by Customer by providing five (5) days prior written notice to Groundwork.
d. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
e. Severability. Any provision of this Agreement that is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
f. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
g. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. The state and federal courts located in Marion County (Indianapolis), Indiana shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party consents to the exclusive jurisdiction of such courts and shall not raise any defense or objection relating to lack of personal jurisdiction or forum non conveniens. Each Party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
h. Force Majeure. Except for obligations of a Party for the payment of Fees or other sums hereunder, if either Party is rendered unable, wholly or in part, by any events reasonably outside of the control of such Party to carry out its obligations under this Agreement, that Party shall give to the other Party prompt notice of the force majeure with reasonable specificity. Thereupon the obligations of the Party giving notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected Party shall use all reasonable diligence to remove the force majeure as quickly as possible. The term “force majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of internet colocation facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, epidemic, pandemic, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension.
i. Entire Agreement. This Agreement, including all exhibits attached hereto, constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. The language used in this Agreement shall be deemed to be language chosen by both Parties hereto to express their mutual intent, and no rule of strict construction against either Party shall apply to rights granted herein or to any term of condition of this Agreement. ************