SOFTWARE-AS-A-SERVICE ACCESS AGREEMENT

 

IN ORDER TO USE THE SERVICES YOU ARE ATTEMPTING ACCESS (THE “SERVICES”), YOU MUST CLICK THE “START USING PROSPECTOR” BUTTON. BY DOING SO (OR BY ACCESSING OR USING ANY SERVICES), YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) ARE AGREEING TO AND BECOMING A PARTY TO THIS AGREEMENT WITH GROOVE LABS INC. (“GROOVE”) AND ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER WILL HAVE NO RIGHT TO USE OR ACCESS THE SERVICES.

1.  SERVICES AND SUPPORT

1.1  Subject to the terms and conditions of this Agreement, Groove may provide Customer with access to the Services through the internet.  The Services are subject to modification from time to time at Groove’s sole discretion, for any purpose deemed appropriate by Groove.  

1.2  Groove makes no service level or support commitments and reserves the right to suspend or terminate Customer’s access to the Services: (i) for scheduled or emergency maintenance or (ii) in the event Customer is in breach of this Agreement or (iii) for any reason or no reason at any time with or without notice.

2.  RESTRICTIONS AND RESPONSIBILITIES

2.1  Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to those related to privacy, intellectual property, consumer and child protection, obscenity and/or defamation) and all obligations to and rights of third parties (including, without limitation, the rights and obligations of third parties under their contracts and agreements with Customer). 

2.2  Customer will cooperate with Groove in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Groove may reasonably request.  Customer will also cooperate with Groove in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.

2.3  Customer hereby agrees to indemnify and hold harmless Groove against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or or otherwise from Customer’s use of Services or in connection with any Data (as defined below).  Although Groove has no obligation to monitor the Data provided by Customer or Customer’s use of the Services, Groove may do so and may remove any such Data or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4  Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

2.5  Customer further acknowledges, agrees to and is bound by the Terms of Service and Privacy Policy on Groove’s website (as they may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.

2.6  Customer acknowledges and agrees that the Services may operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Groove is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof.  Groove does not make any representations or warranties with respect to Third Party Services or any third party providers.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions..

3.  INTELLECTUAL PROPERTY RIGHTS

Groove (and its licensors, where applicable) will own all intellectual property rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Groove.  Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.    

Groove may obtain and process certain content and/or data provided by or on behalf of Customer or otherwise collected by Groove in connection with providing Services under this Agreement (“Data”). Customer represents and warrants that it has the right to provide Groove with and allow Groove to collect such Data on the terms hereof and that the Data will not include any confidential or personally identifiable information.

4.  EFFECT OF TERMINATION

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, intellectual property rights, warranties, indemnities, warranty disclaimers, and limitations of liability.

5.  WARRANTY DISCLAIMER

THE SERVICES AND GROOVE PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND.  GROOVE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

6.  LIMITATION OF LIABILITY

IN NO EVENT WILL GROOVE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF GROOVE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF GROOVE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS,.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

7.   U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be accessed or used by or in or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.  As defined in FAR section 2.101, any software and documentation provided by Groove are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

8.  MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Groove’s prior written consent.  Groove may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Groove in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Groove will not be liable for any loss or damage resulting from a cause over which it does not have direct control.  This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions.  The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.  Groove is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.