Terms and Conditions

These Master Terms and Conditions (collectively, with any Order Form(s) entered into by Customer, this “Agreement”) govern Customer’s use of the Services (as defined herein). Customer accepts this Agreement by: (i) clicking a box indicating acceptance, or by (ii) executing an Order Form that references this Agreement. If the Customer accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.

This Agreement is effective between Customer and Groups360 LLC (“Groups360”) as of the date Customer clicked a box to indicate its acceptance of this Agreement, or the effective date of the applicable Order Form.

1. Definitions.

a. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means possession, directly or indirectly of a majority of an entity’s voting interests.

b. “Authorized Users” means the Customer’s and, as applicable, Participating Properties’ employees and independent contractors to whom the Customer provides or makes available backend or portal access to the Services through use of a password, user ID, or other authentication credentials. Customer may only have Authorized Users to the extent such use is contemplated under the applicable Order Form.

c. “Customer Content” means the data and information submitted or provided to the Services by Customer, its Participating Properties, and their respective Authorized Users, including without limitation, any privacy policies, booking terms and conditions, or other terms of use passed through to end user guests.

d. “Confidential Information” means all confidential and proprietary information, materials, know how, data, trade secrets, business plans, processes, financial information, marketing plans, customer, supplier, or investor lists, research, and technical or commercial information, in tangible or intangible form, relating to a party (the “Disclosing Party”) and that is provided to the other party (the “Receiving Party”). Groups360’s Confidential Information shall include but is not limited to the Groups360 Intellectual Property (as defined below).

e. “Documentation” means any and all user guides or other documentation describing the features, functionality or operation of the Services supplied or made available by Groups360 on its website for use with or in support of the Services, including without limitation any and all revisions, modifications, and updates to such Documentation made by Groups360 from time to time.

f. “End Users” means visitors, customers, and guests of Branded Services or that otherwise book reservations through the Services.

g. “Fees” means the fees for the Services set forth on the applicable Order Form.

h. “Services” means Groups360’s cloud-based platform and related software and products, including the Branded Services, and any other services purchased by Customer under an Order Form.

i. “Order Form” means either (i) an executed ordering document between the parties by which Customer purchases the Services, or (ii) the Services selected at the time that Customer enters into this Agreement by clicking a box indicating acceptance of this Agreement through Groups360’s website.  Each Order Form shall reference this Agreement and forms part of this Agreement if executed by the authorized representatives of each party.

j. “Third Party Application” means a software application with functionality that interoperates with the Services or other content or data in the Services, that is provided by Customer or a third party and/or listed on Groups360’s marketplace portal (other than the Services).

2. Groups360 Services.

a. Subject to the payment of the applicable Fees, Groups360 shall provide the Services that are set forth on an Order Form during the Term. To the extent Customer requests additional products or services, Groups360 shall have no obligation to provide such additional products or services, unless and until the parties execute an additional Order Form that includes such products or services. In the event of any conflict between the terms of this Agreement and an Order Form, the Order Form shall control.

b. Groups360 may regularly update the Services and reserves the right to add and/or substitute functionally equivalent features for any reason, including without limitation in the event of product unavailability, or changes to software requirements. Groups360 shall have the right to discontinue any Service or feature or function thereof; provided, that Groups360 provides reasonable notice of any discontinuance and such discontinuance is made in accordance with the end-of-life policy or procedures made available by Groups360 in connection with such notice. 

c. As applicable to individual Authorized Users, use of the Services shall be subject to the terms and conditions of the then-current End User License Agreement presented or made available to an end user when accessing the Software and any other Documentation and Service specific terms and conditions applicable to the Services used by Customer (the “User Agreements”).  Customer shall ensure that each Authorized User agrees to the terms and conditions of the User Agreements prior to use of the Services. Customer acknowledges and agrees that it has read Groups360’s Privacy Policy, which describes Groups360’s collection and use of end user data, and Customer agrees to collect and provide Customer Content to Groups360 in a manner consistent with Groups360’s Privacy Policy and all applicable data privacy and information security laws. 

d. Groups360 does not warrant or support Third Party Applications unless expressly provided otherwise in an Order Form. The Services may contain features designed to interoperate with Third Party Applications. Groups360 cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund or credit, if for example and without limitation, the provider of the Third Party Application ceases to make the Third Party Application available for interoperation with the Services in a manner acceptable to Groups360. Customer is responsible for complying with the applicable terms of service for any Third Party Applications with which Customer uses the Services.

e. Support services provided by Groups360 as part of the Services may include technical support and workarounds so that the Services operate in material conformance with the Documentation, and the provision of updates thereto, if and when available, all of which are provided under Groups360’s Support policies (as may be amended by Groups360 from time to time) in effect at the time the Support services are provided (“Support”).  The terms of Support for each Service shall be as set forth in Groups360’s Support documents posted on its website.  For the avoidance of doubt, Support excludes any professional services or custom development work. Updates may include bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules or functionality for which Groups360 generally charges a separate fee. Groups360 is under no obligation to provide Support with respect to: (i) Services that have been altered or modified by anyone other than Groups360 or its licensors; (ii) Services used other than in accordance with the Documentation; (iii) discrepancies that do not significantly impair or affect the operation of the Service; (iv) any customized materials provided by Groups360 under a separately executed statement of work with Customer, (v) errors or malfunction caused by Customer’s failure to comply with the minimum system requirement documentation as provided by Groups360 or by Customer’s use of non-conforming data, or (vi) errors and malfunction caused by any systems or programs not supplied by Groups360. It is Customer’s or the Participating Property’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Customer and its Authorized Users, as applicable, to effectively use the Services.

3. License and Use Restrictions.

a. Subject to the terms and conditions of this Agreement and solely with respect to the Services for which Groups360 provides Customer with backend or portal login functionality for Authorized Users, during the Term, Groups360 grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, and non-assignable license to: (i) access and use the Services for Customer’s internal business purposes; and (ii) permit Authorized Users to access and use the Services solely for the benefit of Customer and the operation of Customer’s business. Customer shall not use the Services in excess of the number of units or Participating Properties authorized in the Order Form. 

b. Customer shall (a) be responsible for Authorized Users’ use of the Services and compliance with this Agreement and the User Agreements, (b) be solely responsible for the accuracy, quality and legality of Customer Content and the means by which Customer acquired Customer Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Groups360 promptly of any such unauthorized access or use, (d) use the Services only in accordance with this Agreement, the Documentation and applicable laws, rules and government regulations, and (e) be solely responsible for the Customer systems through which the Services are accessed.  The Services do not replace the need for Customer to maintain regular back-up procedures and business continuity policies with respect to Customer Content. Groups360 may suspend access to the Services in the event of a threat to the security or technical integrity of the Services, or if Groups360 reasonably suspects Customer has breached the use restrictions set forth in this Agreement.

c. Customer shall not and shall ensure its Participating Properties do not: (a) make the Services or the Documentation available to, or use Services or the Documentation for the benefit of, anyone other than Customer or its Authorized Users (and, with respect to Authorized Users, only in conjunction with their performance of services under Customer’s control and involving the review of information pertaining to their performance of such services); (b) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, or lease the Services or any portion thereof or otherwise make available to any third party for any reason, including the documentation, or include the Services in a service bureau, time sharing, or outsourcing offering; (c) interfere with or disrupt the integrity or performance of the Services or data contained thereon; (d) use the Services except as expressly permitted by this Agreement; (e) copy, adapt, modify, prepare derivative works based upon, transfer, publicly display, transmit, or otherwise exploit the Services, including any function or feature thereof; (f) access the Services in order to build a competitive product or service; (g) reverse engineer, disassemble, or otherwise attempt to derive or gain access to the source code or infrastructure of the Services or any part thereof; (h) attempt to probe, scan, or test the vulnerability of the Services, any Groups360 system or network or breach any security or authentication measures, or otherwise attempt to benchmark the Services or Groups360’s performance of the Services; (i) store or transmit code, files, agents, or programs that could harm the Services, including viruses, worms, time bombs, and Trojan horses; (j) remove, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; or (k) post, upload, publish, submit or transmit or otherwise make available any content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships, that infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral or other intellectual property rights, or rights of publicity or privacy, or that otherwise violates applicable law or regulation. Customer shall not provide any competitor of Groups360 (including any employee or contractor of such competitor) with access to or use of the Services, including by read-only access, direct access through an Authorized User identification and password information, or otherwise

4. Customer Responsibilities.

a. Customer acknowledges and agrees that Groups360 does not monitor the content of communications or data of Customer or its Authorized Users transmitted through the Services, and that Groups360 shall not be responsible for the content of any such communications or transmissions.  Customer and its Participating Properties, each individually, shall not knowingly post or upload any content or data which is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening. Groups360 may remove any violating content posted or transmitted through the Services, and shall use commercially reasonable efforts to provide notice of such action to Customer or its Participating Properties. Customer shall promptly provide written notice to Groups360 in the event it discovers any Customer Content provided is unlawful, contains errors, or otherwise violates the provisions of this Agreement.

b. Customer represents and warrants that, where it is entering this Agreement in respect of any hotels, restaurants, or properties acquired by Customer and otherwise owned and/or managed, franchised, or licensed by Customer or any of its Affiliates or any other entities or in connection with a brand controlled by Customer (each, a “Participating Property”), it has the power and authority to enter into this Agreement on behalf of such hotels and restaurants, and to bind the Participating Properties to this Agreement, to the extent the Participating Property is named in the relevant Order Form with Customer or otherwise enters into an Order Form with Groups360. The Customer shall, in respect of the Participating Properties’ hotels and/or restaurants, only allow the employees and end user clients of the Participating Properties to access or use the Services for their internal business purposes, subject always to the restrictions set out in this Section and the other terms of this Agreement. The Customer shall ensure that all of its Participating Properties and their respective Authorized Users use the Services in accordance with the terms and conditions of this Agreement. The Customer shall be responsible in full for the acts and omissions of the Participating Properties and Authorized Users as if they were its own. In the event that Customer acquires a hotel or property that already has an agreement with Groups360 then the existing agreement with the newly acquired hotel or property shall govern such relationship with Groups360, and the newly acquired hotel or property shall not be subject to this Agreement unless and until the existing agreement has expired or termination in accordance with its terms and the parties mutually agree pursuant to an Order Form for the acquired hotel or property to be subject to this Agreement.

c. “Branded Services” shall include Services that are private labeled and authorized by Groups360 to be provided by a Customer and/or its Participating Properties under the Customer’s or its Participating Properties’ trademarks and logos to the extent purchased by Customer or its Participating Properties.   Customer acknowledges and agrees that it is solely responsible for providing services and support with respect to the products and services offered through the Branded Services directly to its End Users and for compliance with applicable laws and regulations related to End Users (including by ensuring that End Users have given their consent to use, processing, and transfer of personal data as required by applicable data protection laws).  Customer shall be solely responsible for presenting its privacy policy, cookie policy (to the extent required by applicable law), and website terms of use to End Users through the Branded Services, and such privacy policy, cookie policy, and website terms of use shall comply with applicable law and contain use restrictions and other terms protective of Groups 360 and Groups360 Intellectual Property at least as protective as those set forth in this Agreement.  Groups360 shall not be liable for, and shall not provide, any legal advice to Customer or its Participating Properties, including without limitation as related to the Branded Services, Customer’s privacy policy and website terms of use, or End Users.     

d. Customer and its Participating Properties shall be solely and exclusively liable for End Users and its actions with respect to End Users, and shall not grant End Users any rights or make any warranties with respect to the Services provided by Groups360.  For avoidance of doubt, as between Customer and Groups360, Groups360 shall have no obligation or otherwise be liable to End Users.  Customer and its Participating Properties shall be solely responsible for: (i) providing accurate content to End Users, collecting information and data from End Users and confirming arrangements with an End Users that has booked guest rooms or meeting space through the Services; (ii) collecting payment from the End Users (except to the extent otherwise provided in the Order Form); (iii) providing the purchased services to End Users; and (iv) providing transaction details and terms of purchase directly to the End Users.  Groups360 is not a party to, and will have no responsibility or liability for, any disputes, communications, or issues between Customer or Participating Properties and its End Users.

5. Data.

a. Customer shall ensure that the Customer Content is timely provided in accordance with the terms of this Agreement. Customer grants Groups360 a non-exclusive, royalty-free license to access and use Customer Content during the Term for the purposes of (i) providing the Services; (ii) monitoring and improving the performance of the Services and other internal business purposes; and (iii) creating de-identified versions of Customer Content. Customer represents and warrants that it owns or has the legal right and authority and has obtained all necessary applicable consents, and will continue to own or maintain the legal right and authority and necessary consents, to transfer relevant personal data to Groups360 for Groups360’s lawful use and processing as contemplated by this Agreement and to grant to Groups360 during the Term the license set forth in this paragraph and the rights to the Customer Content as set forth in this Agreement. Groups360’s Data Processing Addendum describes how Groups360 processes, in order to provide the Services and otherwise upon Customer’s instructions, personal information of individuals collected by their use of the Services provided for Customer and its Participating Properties.

b. Subject to the below exclusions, the parties hereby agree that Groups360 has the right to de-identify and/or aggregate Customer Content (collectively, the “Anonymized Data”) and may use, sell, and disclose such Anonymized Data for any lawful purpose.  Groups360 shall not use or disclose Anonymized Data in a manner that identifies Customer or Customer Content as the source of the data. Customer acknowledges and agrees that Groups360 may use, sell and disclose Anonymized Data for (i) the purpose of providing Groups360’s customers with aggregated and anonymous marketplace intelligence data; (ii) reporting and data services; and/or (iii) any other purpose as permitted under applicable law. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, Anonymized Data shall be considered Groups360 Content and Groups360 is the sole and exclusive owner of the Anonymized Data and any other data or information owned, collected or processed by Groups360 that does not constitute Customer Data, including without limitation all statistical information and transactional data and information regarding the use of the Services, and metadata in or related to the use of the Services.

c. The Customer acknowledges and agrees that Groups360 shall be entitled to: (a) collect, access, modify, distribute, audit, reproduce, delete or remove any Customer Content relating to the Customer, the Authorized Users, and/or the use of the Services freely and in perpetuity to the extent necessary to: (i) protect the Customer; (ii) provide, protect, and improve Groups360’s or the third-party hosting provider’s products and services; (iii) provide statistical analysis; (iv) protect the integrity of any data held by Groups360; and (v) ensure its and Customer’s compliance with this Agreement and any applicable laws or regulations; (b) disclose such data and information if required by law, to enforce this Agreement, or to protect Groups360’s rights or those of Groups360’s customers; and (c) use cookies on the Services.

d. Following termination or expiration of this Agreement, Customer shall have forty-five (45) days during which to retrieve its Customer Content; provided, that Customer has paid all amounts owed to Groups360 under this Agreement.

6.  Fees and Taxes.

a. Except for Customer’s use of free Services, Customer shall pay the Fees set forth in and in accordance with each Order Form.  Except as otherwise set forth in the applicable Order Form, payment of all Fees is due by Customer within thirty (30) days after Customer’s receipt of the invoice. Customer shall be responsible for payment of all taxes (excluding those on Groups360’s net income) relating to the provision of the Services.

b. If any amount owed to Groups360 under this Agreement is overdue, Groups360 may, without limiting its other rights and remedies, (a) charge interest on the past due balances at the rate of one and a half percent (1.5%) per month and/or (b) suspend the Services to Customer until such amounts are paid in full.

c. Groups360 may offer Authorized Users the option to purchase products and services outside of the scope of the Services that are the subject of this Agreement (each, an “Separate Products”), without any obligation to compensate Customer if the Authorized User purchases a Separate Product, except to the extent commissions for such purchases are explicitly set forth in an Order Form.

d. Without limiting any rights set forth in an Order Form, during the Term of this Agreement and for a period of six (6) months following termination or expiration of this Agreement, Groups360 shall have the right to review Customer’s and its Participating Properties’ data and records related to the number of hotel rooms or other metrics set forth on an Order Form or any usage by Participating Properties to verify full compliance with the terms of this Agreement.  If such verification process reveals any noncompliance, Groups360 may charge the difference between the contracted metric and the actual metric (e.g., the difference between the hotel rooms set forth on the applicable Order Form and the actual number of Customer’s and its Participating Properties’ hotel rooms), and the parties shall execute a new Order Form that increases the metric accordingly.   

7. Third Party Providers.

a. In the event Groups360 provides any integration or interfaces between the Services and any third party products and/or services used by the Customer, the Customer shall be solely responsible for ensuring that it has all necessary consents, licenses and cooperation from such third party to allow Groups360 to integrate with such products and/or services, and to use and store in the Services any and all data (including without limitation personal data) received from or through such third party software and/or services. Groups360 makes no representations or warranties and shall have no liability or obligation whatsoever in relation to the operation, content, or use, of any such third party product and/or service, any transactions completed in or through the same, nor for any contract entered into by Customer or any Authorized User (as the case may be), with any such third party. Customer indemnifies Groups360 against all costs, losses, liabilities and damages which arise from any action or claim against Groups360 by such third party provider and/or other third party in respect of the use of (and/or integration/interface with) such third party products and/or services and related data (including without limitation personal data).

b. In order to provide payment processing services (as may be specified in an Order Form), Groups360 may use a third party payment processing services provider and a third party merchant acquirer.  Customer does not store payment card information in its systems.  To the extent there is a failure in such services and Customer and/or Authorized Users suffer any losses, Groups360 shall use all reasonable endeavors to recover such losses from the payment processing services provider and/or the third party merchant acquirer (as applicable), and Groups360’s liability for all such losses shall be limited to the amount it is able to recover from the payment processing services provider and/or third party merchant acquirer (as applicable).

8. Disclaimer of Warranties.

a. Services Provided “As Is”.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED BY GROUPS360 “AS IS,” AND “WITH ALL FAULTS”.  GROUPS360 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE SERVICES AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE ACHIEVED BY USE OF THE SERVICES BY THE AUTHORIZED USERS OR CUSTOMER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE.  GROUPS360 DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND WHILE GROUPS360 HAS USED REASONABLE MEASURES TO MAINTAIN THE CONFIDENTIALITY OF AUTHORIZED USERS’ INFORMATION, CUSTOMER ACKNOWLEDGES AND AGREES THAT GROUPS360 CANNOT GUARANTEE THE SECURITY OR ACCESSIBILITY OF SUCH INFORMATION. CUSTOMER ACKNOWLEDGES THAT GROUPS360 USES A THIRD PARTY TO HOST THE SERVICES AND TO STORE USERS’ INFORMATION AND GROUPS360 MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO LIABILITY FOR SUCH THIRD PARTY SERVICES.  GROUPS360 MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE SERVICES, AND GROUPS360 SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH INFORMATION OR RESULTS. 

9. Ownership and Confidentiality. 

a. Ownership.  Customer agrees that Groups360 and its third-party licensors own all rights, title and interests in and to the Services, the Documentation, and all updates, derivatives and modifications to or of the Services, and the Documentation (collectively, the “Groups360 Intellectual Property”).  Other than the limited license and use rights expressly set forth in this Agreement to the Groups360 Intellectual Property, Groups360 does not grant Customer any rights to the Groups360 Intellectual Property and reserves all rights therein.

b. Improvements. If Customer proposes or provides any ideas, suggestions, recommendations, enhancements, improvements, or other feedback (“Improvements”) to Groups360, then Customer hereby assigns all rights, title, and interests, including all copyright, patent and trade dress rights, in and to such Improvements to Groups360.

c. Confidential Information.

d. Disclosure and Use Restrictions. The Receiving Party shall use commercially reasonable efforts to avoid the loss, unauthorized disclosure and/or unauthorized use of any Confidential Information of the Disclosing Party. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care), and the Receiving Party shall not disclose the Disclosing Party’s Confidential Information, except as permitted by this Agreement. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it 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.  The parties agree that the terms of this Agreement and the pricing contained in each Order Form are Confidential Information and that each party may disclose only under an obligation of confidentiality to its auditors, regulators, financial advisors and legal counsel or in connection with obtaining financing, a merger or acquisition of a party, or the enforcement of this Agreement.

e. Exclusion from Confidential Information. Confidential Information shall not include information that: (1) is in the public domain at the time of disclosure to the Receiving Party; (2) becomes part of the public domain after disclosure by the Disclosing Party without obligation of confidentiality and without direct or indirect fault of the Receiving Party or person(s) acting on the Receiving Party’s behalf; (3) was in the Receiving Party’s possession before receipt from the Disclosing Party without an obligation of confidentiality; (4) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (5) has been independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.

f. Injunctive Relief. The parties agree that any breach of this Section, including improper use or disclosure of the Confidential Information by the Receiving Party, would cause irreparable harm to the Disclosing Party, for which remedies at law would be inadequate, and the Disclosing Party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it.

10. Indemnification. 

a. Groups360 shall defend Customer from and against damages finally awarded by a court with competent jurisdiction in connection with any third party claim, action, suit, or proceeding brought against Customer and alleging that the use of the Services by Customer in accordance with this Agreement infringes a U.S. patent issued as of the Effective Date, copyright, or trademark of a third party (an “Infringement Claim”).  Groups360 shall have no obligation to defend or indemnify an Infringement Claim if the alleged infringement arises as a result of the combination, operation, or use of the Services with third party software, services or other products or materials not furnished or authorized by Groups360 or Customer’s or an Authorized User’s violation of any laws, rules and/or regulations applicable to its business.  In the event of such an Infringement Claim or threat thereof, Groups360 may, in its sole discretion, (a) obtain a license for the infringing part of the Services, (b) remove or alter the infringing part of the Services, so long as such removal or alteration does not materially affect the functionality of the Services, or (c) terminate this Agreement upon written notice to Customer.  THIS SECTION 10 STATES THE ENTIRE OBLIGATION AND LIABILITY OF GROUPS360, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

b. Customer shall indemnify, defend and hold harmless Groups360 and its Affiliates, and their respective owners, managers, directors, employees, and contractors from and against all losses, damages, liabilities and costs (including reasonable attorneys’ fees) incurred in connection with any third party claim arising out of or relating to (i) Customer Content and Groups360’s use thereof, including without limitation if it infringes any intellectual property rights of a third party; (ii) Customer’s or its Authorized Users use of the Services or the results obtained therefrom, above; (iii) Customer’s breaches of Sections 3 or 4; and (iv) any claims from End Users not caused by Groups360’s gross negligence or willful misconduct. 

c. The indemnified party must: (i) promptly provide written notice of the third party claim to the indemnifying party; (ii) provide the indemnifying party with sole control of the defense and settlement of the claim (provided, that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent unless such settlement does not obligate the indemnified party to admit fault or incur any monetary liability); and (iii) provide to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance.

11. Limitation of Liability.  IN NO EVENT SHALL GROUPS360 BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE OR LOSS OF USE, WHETHER OR NOT GROUPS360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL GROUPS360’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY GROUPS360 FROM CUSTOMER IN THE ONE (1) YEAR PERIOD PRIOR TO SUCH CLAIM BEING MADE. NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT OR EXCLUDE LIABILITY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF SUCH LIABILITY.

12. Term and Termination. 

a. This Agreement shall continue for the term set forth on the applicable Order Form, or if Customer is using a free Service then until Customer ceases use of the Service, in either case until: (i) this Agreement is terminated as provided herein, or (ii) upon the expiration or termination of all outstanding Order Forms (the “Term”).

b. Either party may terminate this Agreement for cause: (i) upon written notice to the other party in the event of a material breach of this Agreement by the other party which remains uncured thirty (30) days after receipt of written notice thereof; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof; or (iii) with immediate effect upon written notice by Groups360 to Customer in the event Customer violates Section 13(A) of this Agreement.

c. Upon any termination of this Agreement: (i) all rights and licenses granted to Customer and Authorized Users shall cease, and Customer and its Authorized Users shall immediately discontinue use of the Services; (ii) each party shall immediately discontinue use of the other party’s Confidential Information; and (iii) Customer shall promptly pay all amounts due to Groups360 as of the effective date of termination. The rights and obligations of the parties set forth in Sections 3(B – C), and Section 4 – 13 of this Agreement shall survive the termination of this Agreement. 

13. General Provisions. 

a. Export Compliance. The Services may be subject to export control laws of the U.S. and other jurisdictions, including the U.S. Export Administration Regulations. Customer shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from or in, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation, or in which a U.S. individual or entity cannot provide the Services (or any other services or export) under applicable economic sanctions and embargoes. Customer shall comply with all applicable laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the country in which Customer is based or otherwise resides.  Customer represents and warrants that Customer and all persons acting for or on behalf of Customer are not a prohibited or restricted party with which Groups360 cannot conduct any transaction under U.S. or any other applicable law.  Customer shall not take any action in connection with its receipt or use of the Services that would violate the Foreign Corrupt Practices Act or any other anti-bribery or anti-corruption law applicable to the Agreement, Groups360, or Customer. 

b. Publicity. Customer agrees that Groups360 may identify Customer as a recipient of the Services and use Customer’s trademarks, service marks, or logos in sales presentations, press releases, and marketing materials in order to reference Customer as a customer of Groups360.

c. Force Majeure. Neither party shall be responsible for failures of its obligations under this Agreement to the extent that such failure is due to causes beyond such party’s control, including but not limited to, acts of God, war, terrorism or threat thereof, acts of any government or agency thereof, fire, flood, earthquake, explosions, epidemics, pandemic, quarantine restrictions, strikes or labor disputes, lockouts, embargoes, civil unrest, severe weather conditions, delay in transportation, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Groups360’s possession or reasonable control, denial of service attacks, or acts or omissions of vendors or suppliers (each, a “Force Majeure Event”); provided, however, that Customer’s obligation to timely make payment of all fees for the Services may be temporarily delayed during the Force Majeure Event, but shall not be excused or further delayed by this clause. In the event a Force Majeure Event extends for a period greater than thirty (30) days, Groups360 may terminate this Agreement upon notice to Customer. Groups360 shall not be in breach of its obligations under this Agreement during a Force Majeure Event if Groups360 offers a reasonable accommodation or substitute for the disrupted services, which Groups360 may offer in its sole discretion.

d. Independent Contractors.  The parties to this Agreement are independent contractors, and under no circumstances shall this Agreement be interpreted to create an agency, joint venture or partnership between the parties. Neither party is an agent, representative, or partner of the other party.  Neither party shall have any right or authority to incur any obligation or liability of, or to otherwise bind, the other party.

e. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Neither the Participating Properties nor any Authorized Users shall have any rights to enforce or rely upon any of the provisions of this Agreement.

f. Notice.  Any notice to Groups360 under this Agreement must be in writing and directed to the attention of Paul Zettler, SVP & CFO, Groups360 LLC, 103 Powell Ct., Ste. 300, Brentwood, TN 37027, with an email copy to: legal@groups360.com).

g. No Waiver; Entire Agreement; Amendment.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. This Agreement, including the User Agreements, constitutes the entire agreement with respect to the transactions set forth herein and supersede any and all prior agreements, written or oral, of the parties with respect to the transactions set forth herein. Neither party has relied upon any statement or representation, other than those expressly set forth in this Agreement. The terms of this Agreement may be modified from time to time by Groups360 upon notice to Customer. Continued use of the Services by the Customer and Authorized Users after such notice has been given to Customer shall constitute the acceptance of the modified terms of this Agreement by Customer.

h. Assignment. Neither party is permitted to assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party; provided, that either party may assign this Agreement in its entirety in connection with a merger, acquisition or sale of all or substantially all of the assets of such party.  Any assignment or transfer of this Agreement in violation of this Section is null and void. For clarification purposes, if Customer’s management company changes during the term of this Agreement as permitted by this Section, this Agreement shall continue to govern Customer’s use of the Services.

i. Severability.  If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.

j. Governing Law; Waiver of Jury Trial.  This Agreement shall be governed by and construed under the laws of the State of Tennessee and the United States of America without regard to any conflicts of laws principles that would require the application of any other law. The parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement. Subject to Section 9(C)(iii), any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined exclusively by binding arbitration administered by the Judicial Arbitration and Mediation Services in accordance with its rules. All disputes shall be heard by a panel of three arbitrators. The place of arbitration shall be Nashville, Tennessee, United States of America. The language of the arbitration shall be English. The arbitrators shall be experienced in disputes related to business transactions. Except as may be required by applicable law, no party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Should this Section be deemed invalid or otherwise unenforceable for any reason, it shall be severed, and the parties agree that sole and exclusive jurisdiction and venue for any claims will be in the state or federal courts in Nashville, Tennessee, U.S.A., and each party hereby irrevocably consents to the exclusive jurisdiction of such courts. THE PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY EQUITABLE RELIEF BEING SOUGHT.

k. Electronic Signatures and Counterparts.  If either party signs this Agreement through electronic signature, such electronic signature will have the same effect as a physical signature. This Agreement may be executed in any number of electronic, PDF or facsimile counterparts, each of which is deemed an original and all of which together constitute one and the same agreement.

l. Construction; English Language.  The parties have had an opportunity to confer with counsel in the negotiation of this Agreement.  Accordingly, the normal rules of construction, by which an ambiguity would be construed against the drafting party, will not apply to the interpretation or enforcement of this Agreement. This Agreement is in the English language only, and any translation of these terms in another language shall not be binding upon the parties.