Master Subscription Agreement

SERVICES

1. Provision of Services.  Customer and End Users may access and use the Services and Learning Objects in accordance with this Agreement and the Documentation.

2. Security & Privacy.  Grovo will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data. Grovo will transfer, store, and process Customer Data in accordance with Grovo’s privacy policy.  Customer agrees that Grovo and its contractors may transfer, store, and process Customer Data in locations other than Customer’s country.

3. Changes.  Grovo may, at its discretion, change or update the Services from time to time.  Grovo will notify Customer in advance of changes to the Services that materially reduce their functionality.

4. Support.  Grovo will provide standard support for the Services to Customer at no additional charge.

CUSTOMER USE OF SERVICES

1. Subscriptions.  Except as set forth in the Order Form, Services are made available as subscriptions and additional End User subscriptions may be added during the Subscription Term at the same price applicable to that subscription type, prorated for the remainder of the then-current Subscription Term.  Any additional End User subscriptions or subscriptions where an End User is upgraded to a new subscription type will be billed automatically.

2. Customer Responsibilities. Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services.  Customer may not permit sharing of End User accounts and passwords.

3. Customer Administration. Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. The Customer acknowledges that if it purchases the Services through a reseller, the reseller’s personnel may be designated Administrators for Customer’s Services account and have corresponding access and control.

4. Compliance. Customer and End Users may only use the Services in accordance with this Agreement, the Documentation, and the Acceptable Use Policy (https://www.grovo.com/legal/acceptable-use-policy).  Customer will obtain any consents and comply with any laws necessary to allow the operation of the Services and to permit Grovo to process, store, and transfer Customer Data.  Customer will ensure that no person under the age of 13 is allowed to become an End User.  Customer will not submit any personal information of End Users to the Services except as required to use the Services.

5. Usage Limits.  Use of the Services may be subject to usage limits set forth in Customer’s Order Form or the Documentation.  

6. Restrictions.   Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or Learning Objects, (b) modify or create derivative works based on the Services or Learning Objects, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or Learning Objects or otherwise use the Services or Learning Objects for the benefit of a third party, (d) remove or alter proprietary notices from the Service or Learning Objects, (e) use the Service or Learning Objects to create any other product or service or (f) use, sell, copy, modify, create derivative works based on, publicly perform, publicly display, or distribute the Grovo Content or Created Content outside of the Services.  

7. Content.  Grovo respects the intellectual property rights of third parties and responds to notices of alleged copyright infringement if they comply with the law.  Grovo reserves the right to delete Customer Content or Created Content alleged to be infringing from Customer’s Services account and terminate End Users or Customers that repeatedly infringe third-party rights.

8. Suspension.  Grovo may suspend Customer’s or End User’s right to use the Services if (a) Customer or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy, or may adversely affect the Services, Grovo’s systems and infrastructure, or a third party, (b) Customer or End User’s use of the Services could subject Grovo to liability, or (c) Customer is in breach of this Agreement.  Grovo will use commercially reasonable efforts to provide prompt notice of a suspension.

9. Third-Party Services.  If Customer uses any third-party services, products, websites, or applications, such as a service that interoperates with the Services or a website linked from the Services (e.g., the Giphy extension, a third-party Learning Management System using Learning Objects), (a) Grovo will not be liable for any act or omission of the third party, including the third party’s access to or use of Customer Data or other information or reports, (b) any Content submitted to the Services from a third-party service, product, website, or application will be Customer Content, and (c) Grovo does not warrant or support any service, product, website, or application provided by a third party.  Grovo does not endorse any third-party services, products, websites, or applications, or any opinions, recommendations, or advice therein.

INTELLECTUAL PROPERTY RIGHTS

1. Grovo License. Except for the rights granted in Section 1.1 (Provision of Services) and this Section 3.1 (Grovo License), Grovo and its licensors own and reserve all right, title, and interest in and to the Grovo Technology.  Grovo grants Customer a limited, non-exclusive, non-transferable license for its End Users to access and use the Service and view and interact with Platform Content through the Service for personal and internal business purposes during the Subscription Term.  Grovo grants Customer a limited, non-exclusive, non-transferable license to download Learning Objects from the Services and for its End Users to use Learning Objects with the Services for personal and internal business purposes during the Subscription Term.

2. Customer License.  Except for the rights granted in this Section 3.2 (Customer License), Customer owns and reserves all right, title, and interest in and to the Customer Data.  Customer grants Grovo and its contractors a worldwide, non-exclusive, right to use, copy, distribute, create derivative works based on, display, and perform its Customer Data and Created Content as reasonably necessary for Grovo to provide the Services to Customer.  Grovo may display Customer’s logo within designated areas of the Customer’s Services account.

3. Suggestions.  Customer agrees that with respect to any Suggestions, Grovo may, in its discretion and for any purpose, (a) use, modify, and incorporate into Grovo’s products and services and (b) license or sublicense the Suggestions without obligation to Customer.  Customer agrees not to enforce any “moral rights” in and to any Suggestions, to the fullest extent permitted by law.

4. Customer Marketing.  Customer agrees to participate in a case study featuring Customer’s use of the Services. Customer will provide quotes and other materials to Grovo for the case study. Customer grants Grovo the right to use the provided materials and Customer’s name, logo, and trademarks to identify Customer as a customer of Grovo on Grovo’s website, in a case study, in press articles, and in other marketing materials.

FEES & PAYMENT

1. Fees.  Customer will pay Grovo the fees for the Services set forth in the Order Form.  All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice.  Customer is responsible for providing complete and accurate billing and contact information to Grovo and updating Grovo of any changes.  All fees paid are non-refundable and not subject to set-off.  If Customer is purchasing the Services from a reseller, Customer’s payment obligations may be to the reseller.

2. Invoicing & Payment. Unless otherwise set forth in the Order Form or any SOW, all fees will be invoiced in advance. All invoices issued under this Agreement are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date.  If Customer provides Grovo with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes Grovo to charge the credit card for the Services listed in the Order Form for the Subscription Term.  If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.  If Customer is purchasing the Services from a reseller, any terms and conditions between Customer and the reseller that conflict with this Agreement are void.

3. Late Payments.  Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full.  Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Grovo in collecting past due amounts.  If Customer’s fees are past due, Grovo may suspend the Services automatically and provide notice of termination for material breach.

4. Taxes.   Customer is responsible for all taxes, except those directly relating to Grovo’s net income, gross receipts, or capital stock.  Grovo will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Grovo with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. Future Functionality.  Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing this Agreement or any Order Form.  Customer acknowledges that information provided by Grovo regarding future functionality should not be relied upon to make a purchase decision.

TERM & TERMINATION

1. Agreement Term. The Agreement will remain in effect for the Term.

2. Subscription Terms. Unless otherwise set forth in an Order Form, subscriptions will automatically renew for additional 1 year subscriptions, unless either party gives the other notice of non-renewal at least 30 days before the end of the Subscription Term. The per-unit pricing for each subscription type or usage fee during each renewal Subscription Term will increase by up to 5% from the previous Subscription Term, unless Grovo sends a notice of different pricing at least 45 days in advance of the renewal.  But, for any renewal in which subscription or usage volume for any Services has decreased from the prior Subscription Term, Grovo will re-price each subscription type or usage fee at renewal irrespective of the prior Subscription Term per-unit pricing.  

3. Termination.  Either party may terminate this Agreement if (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings.  Grovo may also terminate the Agreement if it has the right to suspend the Services under Section 2.8 or in order to comply with law or regulation.

4. Effect of Termination.  If this Agreement expires or is terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, (b) upon request made by Customer within 30 days after the effective date of termination or expiration of the Agreement, Grovo will make standard reports on user activity available to Customer for export or download, and (c) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.4 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (Disputes), 11(General Provisions), 12 (Definitions).  

CONFIDENTIALITY

1. Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances.  This Agreement, Order Forms, and the Grovo Technology will be Confidential Information of Grovo.  Customer Data will be Confidential Information of Customer.  Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.

2. Obligations.  The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by the Customer to provide Confidential Information to a third-party service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees, contractors, and advisors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.  Grovo may disclose Customer’s relationship with Grovo to content licensors for compliance purposes.

3. Compelled Disclosure.  Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure.  If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.

DISCLAIMERS

1. General.  TO THE FULLEST EXTENT PERMITTED BY LAW, GROVO AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATORY OR OTHERWISE REGARDING THE SERVICES, LEARNING OBJECTS, OR GROVO CONTENT, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE SERVICES, LEARNING OBJECTS, OR GROVO CONTENT ARE ACCURATE, COMPLETE, OR RELIABLE.  THE SERVICES, LEARNING OBJECTS, AND GROVO CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  NO ADVICE OR INFORMATION OBTAINED FROM GROVO, THE SERVICES, LEARNING OBJECTS, OR GROVO CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.

2. Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) Grovo provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services.  

INDEMNIFICATION

1. By Customer.  Customer will defend Grovo and its Affiliates, licensors, and distributors from and against all third-party claims, lawsuits, and demands arising out of (a) an alleged breach of Customer’s obligations under Section 2 or (b) an allegation that the Customer Content infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Grovo and its Affiliates, licensors, and distributors for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.

2. By Grovo.  Grovo will defend Customer from and against all third-party claims, lawsuits, and demands arising out of an allegation that Grovo’s technology used to provide the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.  In no event will Grovo have obligations or liability under this Section arising from: (a) use of the Services or Learning Objects in a modified form or in combination with materials not furnished by Grovo, and (b) any content, information, or data provided by Customer, End Users, or other third parties.  For any claim covered by this Section, Grovo will, at its election, either (i) procure the rights to use the portion of the Services or Learning Objects alleged to be infringing, (ii) replace the alleged infringing portion of the Services or Learning Objects with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services, Learning Objects, or this Agreement and provide Customer with a pro rata refund of prepaid fees for the affected Services.

3. General.  The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim.  The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense.  THE INDEMNIFIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

LIMITATION OF LIABILITY

1. Limitation on Indirect Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, GROVO AND ITS AFFILIATES, LICENSORS AND DISTRIBUTORS WILL NOT BE LIABLE TO CUSTOMER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR (C) ANY DAMAGES FOR PERSONAL OR BODILY INJURY, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER GROVO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  

2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, GROVO’S AND ITS AFFILIATES’, LICENSORS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

DISPUTES

1. Informal Resolution.  Grovo wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately.  Before filing a claim, Grovo and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion.  After 15 days, either party may bring a formal proceeding.

2. Arbitration Agreement. Grovo and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below.  Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by 1 arbitrator.  The arbitration will take place in New York, New York in the English language.  Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above.  Grovo and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of New York, New York.

GENERAL PROVISIONS

1. Agreement Modification. Grovo may modify this Agreement periodically.  If an update will affect Customer’s use of the Services, Grovo will notify Customer prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately).  Otherwise, updates will be effective as of the date posted on this website.  By continuing to use the Services or executing additional Order Forms after the changes become effective, Customer agrees to be bound by the modified Agreement.  If Customer does not agree to the modified Agreement for the Services, Customer may terminate the Services within 30 days of receiving notice of the change.

2. Entire Agreement. All attachments to the Agreement, SOWs, and Order Forms executed by the parties are hereby incorporated into the Agreement by reference.  This Agreement constitutes the entire agreement between Customer and Grovo with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.  Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the SOW, the Agreement, and the Documentation.

3. Governing Law.  This Agreement will be governed by New York law except for its conflicts of laws principles.  

4. Notices.  Notices must be sent by first class mail or overnight courier and are deemed given when received.  Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent.  Notices to Grovo must be sent to Grovo, Inc., Attn: Legal Department, 50 West 23rd Street, New York, New York 10010 with a copy to legal@grovo.com.

5. Assignment.  Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement, whether by operation of law or otherwise, without Grovo’s consent.  Grovo may assign this Agreement in its entirety, without notice, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this Section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.  Any other attempt to transfer or assign is void.

6. Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, joint venture, or agency relationship between the parties.

7. Third-Party Beneficiaries.  There are no third-party beneficiaries under this Agreement.

8. Construction.  Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement.  “Including” and “include” will be construed to mean “including without limitation.”

9. Force Majeure.  Grovo will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, and Internet disturbance) that was beyond its reasonable control.

10. Waiver.  No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right.  A waiver of a default is not a waiver of any subsequent default.

11. Severability.  If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable.  The remaining provisions of the Agreement will remain in effect.

12. Counterparts.  This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.

13. Export Compliance.  The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services.  Customer will not permit End Users to use the Services from a U.S. embargoed country.

DEFINITIONS

1. “Acceptable Use Policy” means the acceptable use policy for the Services available at https://www.grovo.com/legal/acceptable-use-policy or otherwise provided by Grovo.

2. “Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

3. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.

4. “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis.

5. “Content” means text, graphic, photos, images, sounds, music, videos, audiovisual combinations, software files, and other content.

6. “Created Content” means Content created by Customer using the Services.  Created Content may incorporate Grovo Content, Customer Content, or both.

7. “Customer Content” means Content submitted to the Services by Customer.

8. “Customer Data” means data and information submitted to the Services by Customer or its End Users, including Customer Content.

9. “Documentation” means any Grovo-provided written documentation and policies.

10. “Effective Date” means the earlier of the effective date or subscription start date set forth on Customer’s first Order Form.

11. “End Users” means users of Customer’s Services account.  End Users may include Customer’s and its Affiliate’s employees, agents, and consultants.

12. “Grovo Content” means Content provided by or made available by Grovo and its licensors for use within the Services.

13. “Grovo Technology” means the Services, Grovo Content, Documentation, and Grovo’s trademarks, logos, and other brand features.

14. “Initial Subscription Term” means the term for the applicable Services starting on the subscription start date set forth on the Customer’s first Order Form and continuing for the period set forth in the Order Form.
    

15. “Learning Management System” means a software application for the administration, documentation, tracking, reporting, and delivery of educational courses or training programs.

16. “Learning Object” means the downloadable reference file that may be uploaded to a third-party Learning Management System and used to link such third-party Learning Management System to certain Platform Content within the Services.

17. “Order Form” means the ordering document or page for the Services.

18. “Platform Content” means Created Content, Grovo Content, and Customer Content available in Customer’s Services account.

19. “Services” means the products and services ordered by Customer under an Order Form or otherwise provided by Grovo and used by Customer under this Agreement.

20. “SOW” means statement of work.

21. “Subscription Term” means the Initial Subscription Term or any renewal terms for the Services.

22. “Suggestions” means feedback, comments, ideas, reviews, information, suggestions, or other materials that Customer or End Users provide to Grovo or its contractors.

23. “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) until the Agreement is terminated.