Groupfire Terms of Service

IMPORTANT: THE FOLLOWING TERMS OF SERVICE APPLY TO YOUR USE OF THE GROUPFIRE SERVICES. PLEASE READ THEM CAREFULLY TOGETHER WITH THE ORDER. In addition to agreeing to these Terms of Service, before you are entitled to use the Groupfire Services, you must enter into one or more separate orders ("Order(s)") with Groupfire, Inc. (“Groupfire”). These Terms of Service together with such Order(s) are collectively referred to as the "Agreement". These Terms of Service apply to any user of the Groupfire Services, which includes the entity completing and submitting the Order ("Customer") for the Groupfire Services as well as each Administrator or other authorized user. If Customer does not accept all terms of the Agreement and Privacy Policy, then Customer may not use the Groupfire Services.

1. CERTAIN DEFINITIONS.

1.1 “Activation Date” means the earlier date on which the management platform of the Groupfire Service is scheduled to be made available to Customer as stated in the applicable Order Form, or if earlier, the date on which Groupfire provides to Customer, and Customer receives, log-in credentials for the management platform of the Groupfire Service.

1.2. “Administrators” means Customer’s employees, consultants, contractors, agents and third parties who are authorized by Customer to access and use the management platform component of the Groupfire Service and who have been supplied user identifications and passwords for such purpose by Customer (or by Groupfire at Customer’s request).

1.3. “Affiliate” of a Party means any entity, that directly or indirectly, controls, is controlled by, or is under common control with such Party. For purposes of this definition, “control” means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

1.4. “AUP” means the Acceptable Use Policy found at www.groupfire.com/acceptable-use-policy as in effect from time to time.

1.5. “Customer Data” means all electronic data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer, any Administrator or any Member initiated through the Groupfire Service, including Member lists and contacts.

1.6. “Customer Materials”” means the content, communications, branding, logos, or other materials submitted to the Groupfire Service by or on behalf of Customer, including without limitation Customer Data.

1.7. “Documentation” means any user instructions and help files made available by Groupfire for use with the Groupfire Service, as updated from time to time by Groupfire.

1.8. “Groupfire Client” means the application (currently iOS, Android, desktop web and mobile web) provided as part of the Groupfire Service which Administrators and Members install on one or more devices or access through a browser subject to the terms of this Agreement and the Customer Terms and Conditions.

1.9. “Groupfire Service” means the hosted services that provide community and membership platforms, primarily consisting of the management system for Administrators and the Groupfire Client, including all modifications, updates and changes which Groupfire makes generally available to its customers at no additional fee. Groupfire Services will not include any new functionalities which are offered to Groupfire customers for an additional fee, however Customer may elect to license such new functionalities in accordance with Groupfire’s applicable pricing and terms.

1.10. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

1.11. “Members” means individuals which are listed in the member directory database for Customer on the Groupfire Service.

1.13. “Order Form” means the ordering documents for Groupfire Services purchased from Groupfire that are executed hereunder by the Parties from time to time, including modifications, supplements, and addenda thereto.

14. “Subscription Term” means the subscription period for Customer’s use of the Groupfire Service set forth in the applicable Order Form.

2. LICENSES

2.1. Subscription. Customer and Groupfire will execute one or more Order Forms which will describe the type of Groupfire Service subscription being purchased, the Fees, the Subscription Term and such other relevant terms applicable to such subscription.

2.2. Access and Use License. Subject to Customer’s compliance with the Agreement, Groupfire grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Groupfire Service in accordance with the Documentation solely for Customer’s business purposes, and a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access, use, promote and distribute the Groupfire Client solely to Administrators and Members of Customer. Customer’s use of the Groupfire Service may be subject to certain limitations specified either in the Order Form or in the Documentation, such as, limits on storage capacity for Customer Data. Except as expressly granted in the Agreement, there are no other licenses granted to Customer, express or implied, and all rights not expressly granted in the Agreement are reserved by Groupfire. Customer will use the Groupfire Services in compliance with, and ensure that, each Administrator complies with this Agreement. Customer is responsible for all use of the Groupfire Service by its Administrators and agrees that it will not provide or permit access to the Groupfire Service to anyone other than Administrators who require such access to do their job.

2.3. Third Party Services. Groupfire may use the services of one or more third parties to deliver any part of the Groupfire Services. Groupfire will pass-through to Customer any warranties that Groupfire receives from its third-party service provider(s) to the extent it can provide them to Customer, which will be the sole warranties provided for such third-party services. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time. Customer agrees to provide Groupfire during the Term with direct access to the results of any use of the Groupfire Service so that Groupfire may review and analyze the results. All such data will be “Customer Data” hereunder. 

3. CUSTOMER OBLIGATIONS.

3.1. Passwords. Groupfire will issue to Customer logins and passwords for each Administrator. Customer is responsible for maintaining the confidentiality of all logins and passwords, for ensuring that each login and password is used only by the Administrator to which it was issued, for ensuring that logins and passwords are not shared, and for maintaining the security of Customer’s account on the Groupfire Services, and for providing, at Customer’s sole cost, the equipment and software needed to connect to, access and use the Groupfire Services (the “Customer System”). Customer will immediately notify Groupfire by email of the identity of any Administrator or other employee, contractor or representative who is no longer authorized to use the Groupfire Services to enable Groupfire to restrict access by such individual. Customer is solely responsible for any and all (a) access and use of the Groupfire Services that occurs using logins and passwords Groupfire issues to Customer or that Customer Administrators create for Members, and (b) actions of Customer, Administrators and its Members in connection with use of the Groupfire Service, and all use of the Groupfire account on the Groupfire Service by Groupfire, Administrators and Members. Groupfire shall have no liability for any loss or damage arising therefrom. Customer agrees to immediately notify Groupfire of any unauthorized use of any account or login and password issued to Customer, its Administrators or its Members, or any other actual or attempted breach of security known to Customer.

3.2. Members. Customer shall ensure that before using the Groupfire Service each Member agrees to (a) Customer terms and conditions applicable to a Member’s use of the Groupfire Service (the “Customer Terms of Service”) which will include at a minimum the terms set forth in Exhibit B (the “TOS Requirements”), and (b) the Customer privacy policy applicable to Customer’s collection, use and disclosure of Member data in connection with Member’s use of the Groupfire Service (the “Customer Privacy Policy”). The Customer Privacy Policy will permit Customer to disclose data to Groupfire for use as contemplated by the Agreement. Customer will ensure that Member’s agreement to the Customer Terms of Service and Customer Privacy Policy are legally sufficient and enforceable. Customer will comply with the terms of the Customer Terms of Service and Customer Privacy Policy in all respects. Customer is responsible for all actions and failures to act by its Members in their use of the Groupfire Service, including any content or other materials posted by Members (“Member Materials”). 

4. DOCUMENTATION; SUPPORT SERVICES.

4.1. Documentation. Groupfire will make commercially reasonable efforts to provide the Groupfire Service in accordance with the Documentation in all material respects. In the event Customer determines that the Groupfire Services has not met the foregoing, Customer shall give Groupfire prompt notice of the deficiency, including details sufficient to allow Groupfire to replicate the deficiency, and in such event, Groupfire will use commercially reasonable efforts to remedy the identified deficiency. If Groupfire does not remedy the deficiency, Customer’s sole remedy for Groupfire’s failure to provide the Groupfire Service in accordance with the Documentation is to terminate this Agreement and to receive a refund for any pre-paid Fees applicable to periods after the effective date of termination.
4.
2. Customer Support. The Fees (as defined below) include the provision to the Customer of Groupfire’s standard support. Customer shall provide first line support to Members, with Groupfire provided second line support. Groupfire reserves the right to make upgraded support services available to Customer for an additional fee.

5. FEES AND PAYMENT.

5.1. Fees. Customer agrees to pay all fees specified in an Order Form (the “Fees”) using one of the payment methods Groupfire supports. Except as otherwise specified in the Agreement, (a) Fees are quoted and payable in United States dollars, (b) Fees are based on level of Groupfire Services purchased, regardless of any actual usage, and (c) Fees are non-cancelable, non-refundable (except as expressly provided herein), and are made without setoff or counterclaim, and without any deduction or withholding. Fees for any given Subscription Term including any Onboarding Fees will be billed commencing on the first day of such Subscription Term (“Due Date”), and thereafter Overage Fees (if any) are due monthly in arrears thirty (30) days from the date of invoice. All Fees payable by Customer under this Agreement are exclusive of any applicable sales or use taxes (such as GST or VAT). Any taxes (if applicable) will be charged separately on Customer’s invoice, unless Customer shall timely provide Groupfire with a valid tax exemption certificate acceptable to the relevant taxing authorities.

5.2. Late Payments. If Groupfire does not receive Fees by the Due Date, then at Groupfire’s discretion, such Fees will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Groupfire reserves the right to revoke or decrease any discount previously offered to Customer and Groupfire may immediately suspend Customer’s account without notice for late or non-payment.

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

6.1. Representations and Warranties. Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into the Agreement and to perform its obligations hereunder; and (b) its execution and performance of the Agreement does not conflict with any agreement or obligation to which it is a party or by which it is bound. Customer further represents, warrants and covenants that (a) Customer has obtained all necessary rights, releases, and permissions to transmit or otherwise provide the Customer Materials to Groupfire as necessary for use of the Groupfire Services, and the Customer Materials do not violate any rights of any third party, including without limitation any Intellectual Property Rights; and (b) the collection, use, and disclosure of the Customer Data by Customer and the use by Groupfire as contemplated herein, does not violate any applicable laws, rules or regulations or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity, and does not violate any applicable privacy policies, including the Customer Privacy Policy, and (c) Customer will use the Groupfire Services in compliance with all applicable privacy, anticorruption and export laws, rules, regulations and sanctions programs.

6.2. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE GROUPFIRE SERVICES, AND ANY OTHER SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF ALL SUCH SERVICES IS AT CUSTOMER’S OWN RISK. GROUPFIRE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO AGENT OF GROUPFIRE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF GROUPFIRE AS SET FORTH HEREIN. GROUPFIRE DOES NOT WARRANT THAT: (A) THE USE OF THE GROUPFIRE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE GROUPFIRE SERVICES, OR INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE GROUPFIRE SERVICES, WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) ERRORS OR DEFECTS IN THE GROUPFIRE SERVICES WILL BE CORRECTED; OR (E) THE SERVER(S) THAT MAKE THE GROUPFIRE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GROUPFIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.

7. INDEMNIFICATION.

7.1. Groupfire Indemnity. Groupfire, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third Party Claim”) alleging that the Groupfire Services infringes any copyright or misappropriates any trade secret. Groupfire shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of a final judgment) incurred by the Customer Indemnified Parties from any such Third-Party Claim. Groupfire’s indemnity obligations shall not apply with respect to a Third Party Claim arising out of (i) Customer Materials or Member Materials; (ii) use of the Groupfire Service in combination with any software, hardware, network or system not supplied by Groupfire where the alleged infringement relates to such combination, (iii) any modification or alteration of the Groupfire Service other than by Groupfire, (iv) Customer’s continued use of the Groupfire Service after Groupfire notifies Customer to discontinue use because of a Third Party Claim, (v) use of Open Source Software; (vi) Customer’s violation of applicable law; and/or (vii) Customer System. If any Third Party Claim which Groupfire is obligated to defend has occurred, or in Groupfire’s determination is likely to occur, Groupfire may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Groupfire Services, (b) substitute a functionally equivalent, non-infringing replacement for such the Groupfire Services, (c) modify Groupfire Services to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to Customer any prepaid Fees attributable the period of time between the date Customer was unable to use the Groupfire Services due to such claim and the remaining days in the then-current Subscription Term. THE FOREGOING STATES THE ENTIRE LIABILITY OF GROUPFIRE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE GROUPFIRE SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF GROUPFIRE WITH RESPECT THERETO.

7.2. Customer Indemnity. Customer shall defend Groupfire and its Affiliates, licensors and their respective officers, directors and employees (“Groupfire Indemnified Parties”) from and against any and all Third-Party Claims (a) which arise out of or relate to: (i) the Customer Materials, Member Materials or Customer System (and the exercise by Groupfire of the rights granted herein with respect thereto), including infringement of any third party’s Intellectual Property Rights; or (ii) Customer’s or any Administrator’s use or alleged use of the Groupfire Service other than as permitted under the Agreement; or (b) brought by a Member in connection with the Groupfire Service. Customer will pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of a final judgment) incurred by the Groupfire Indemnified Parties from any such Third-Party Claim.

7.3. Procedures. Each Party’s (the “Indemnifying Party”) indemnification obligations under this Section are conditioned upon (a) the Party seeking indemnity (the “Indemnified Party”) giving prompt notice in writing to the Indemnifying Party of any Third Party Claim under this Section, (b) the Indemnifying Party having the sole and exclusive right to control the defense and settlement of the Third Party Claim, and (c) the Indemnified Party providing all reasonable assistance to the Indemnifying Party (at the Indemnifying Party’s expense and reasonable request) in the defense of such Third Party Claim. In no event shall either Party settle any Third Party Claim unless (a) such settlement includes an unconditional release of the other Party from all liability on such Third Party Claims, or (b) the other Party gives its prior written approval. An Indemnified Party may, at its own expense, engage separate counsel to advise the Indemnifying Party regarding a Third-Party Claim and to participate in the defense, subject to the Indemnifying Party’s right to control the defense and settlement thereof.

8. CONFIDENTIALITY

8.1. Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, pursuant to the Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure ought to be treated as confidential and proprietary information, including but not limited to: (a) inventions (whether or not patented or patentable), know-how, processes, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) research and development, design details and specifications, engineering, financial information, customer lists, business forecasts, sales and merchandising and marketing plans; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; (d) the terms of the Agreement; and (e) summaries and abstracts of Confidential Information. Confidential Information of Groupfire shall include the Groupfire Service and Customer Confidential Information will include the Customer Data.

8.2. Non-Disclosure; Security. Each Receiving Party shall, at all times, both during and after the Term, keep confidential and not disclose the Disclosing Party’s Confidential Information. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the Agreement. Each Receiving Party agrees to secure and protect the Disclosing Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of the Receiving Party’s own Confidential Information of a similar nature (but in no event less than reasonable care). The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents (“representatives”) who need access to such Confidential Information for the purposes stated above and who are subject to confidentiality obligations at least as stringent as those set forth herein. Each Receiving Party will be responsible for compliance by its representatives. Groupfire will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the Customer Data. Notwithstanding the foregoing, the Internet cannot be 100% secure, so it is possible for unauthorized third parties to access the Groupfire Services and Customer Data. Notwithstanding anything to the contrary in this Agreement, Groupfire cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.

8.3. Exceptions to Confidential Information. Confidential Information will exclude information which: (a) was lawfully known by the Receiving Party prior to receipt from the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes generally available to the public, except as a result of a breach of the Agreement by the Receiving Party. A Receiving Party may disclose Confidential Information to the extent required by law or judicial process; provided that the Receiving Party shall give the Disclosing Party advance notice of such requirement to the extent legally permitted. Groupfire has the right to use Customer’s name and trademarks and disclose the nature of the Groupfire Services provided hereunder in Groupfire business development and marketing efforts, including without limitation on Groupfire’s web site.

9.1. Groupfire Services. As between Groupfire and Customer, all right, title and interest in the Groupfire Services, the Usage Statistics (defined in Section 9.3) and any other Groupfire materials furnished or made available hereunder, all modifications and enhancements thereof, and all Feedback, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Groupfire or Groupfire’s licensors and providers, as applicable. Customer irrevocably assigns to Groupfire all evaluations, ideas, feedback and suggestions made by Customer to Groupfire regarding the Groupfire Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.

9.2. Customer Data. As between Groupfire and Customer, all right, title and interest in the Customer Materials, belong to and are retained solely by Customer. Customer hereby grants to Groupfire a limited, non-exclusive, royalty-free, worldwide license to use the Customer Materials, Member Materials and perform all acts with respect thereto as may be necessary or desirable for Groupfire to provide the Groupfire Services to Customer and the Members, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Customer Data as a part of the Usage Statistics (defined in Section 9.3). Groupfire shall not (a) modify Customer Materials, except as necessary to provide the Groupfire Services, or (b) access Customer Materials except to provide the Groupfire Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters. To the extent that receipt of the Customer Data requires Groupfire to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant and accurate account information and passwords, and Groupfire hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in the Agreement.

9.3. Usage Statistics. Notwithstanding anything else in this Agreement or otherwise, Groupfire may monitor Customer’s, its Administrators’ and its Members’ use of the Groupfire Services and use data and information related to such use, and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Groupfire Services (“Usage Statistics”). As between Groupfire and Customer, all right, title and interest in the Usage Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Groupfire. Customer agrees that Groupfire may (a) make such Usage Statistics publicly available, and (b) use the Usage Statistics to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer, any Member or Customer’s Confidential Information.

10. LIMITATION OF LIABILITY.

NEITHER CUSTOMER NOR GROUPFIRE, ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF CUSTOMER, GROUPFIRE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE GROUPFIRE SERVICE, ANY OTHER SERVICES PROVIDED BY GROUPFIRE HEREUNDER OR THE RESULTS THEREOF. GROUPFIRE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. NEITHER GROUPFIRE, ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO GROUPFIRE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED. CUSTOMER ACKNOWLEDGES THAT THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION.

11.1. Term. The term of this SaaS Agreement commences on the Effective Date and continues until the expiration or termination of all Subscription Term(s) (the “Term”). The length of the initial Subscription Term is stated in the applicable Order Form. The Subscription Term shall automatically renew for consecutive periods of equal length to the initial Subscription Term (each a “Renewal Subscription Term”), unless terminated by Customer by written notice (“Termination Notice”) to Groupfire received at least ten (10) days prior to the end of the then-current Subscription Term or Renewal Subscription Term. Customer agrees and acknowledges that upon the effective date of termination, (a) all Fees become due and payable in accordance with Section 5; (b) Customer will cease all use of the Groupfire Services and will no longer have access to its account; and (c) Customer will not receive any refunds of Fees already paid. The pricing during any Renewal Subscription Term shall be the same as that during the immediately prior Subscription Term unless Groupfire has given Customer written notice (including email) of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective for such Renewal Subscription Term and thereafter.

11.2. Termination. Either Party may terminate the Agreement in the event of a material breach by the other Party, which is not cured within thirty (30) days after receipt of notice describing such breach; provided that any breach of Sections 2 and 3.2 will have a five (5) day cure period. Repeated incidences of suspension (whether or not cured), will constitute a material breach. If Groupfire exercises such termination right, Groupfire shall refund to Customer the amount of any pre-paid Fees for the remainder of the terminated Subscription Term or Renewal Subscription Term of that Order Form, as Customer’s sole remedy.

11.3. Temporary Suspension. Groupfire may temporarily suspend Customer’s, its Administrator’s and/or its Members’ access to the Groupfire Services if Groupfire in good faith suspects Customer, such Administrator or Member is engaged in any unauthorized conduct (including, but not limited to any violation of the Agreement) and in such event, Groupfire will use reasonable efforts to give Customer five (5) days’ notice prior to suspension. Groupfire’s suspension of Groupfire Services is in addition to any other remedies that Groupfire may have under the Agreement or otherwise. Groupfire reserves the right to remove, delete, make unavailable or take other appropriate actions in regard to any Customer Materials or Member Materials that are or are suspected to violate this Agreement (including the AUP) or applicable laws, threaten the security, integrity, or availability of the Groupfire Service generally or otherwise causing immediate, material and ongoing harm to Groupfire or others.

11.4. Effects of Termination. Upon expiration or termination of this SaaS Agreement, (a) Customer’s use of and access to the Groupfire Service shall immediately cease; (b) all Order Forms shall terminate; (c) all Fees and other amounts owed to Groupfire for Groupfire Services already provided shall be due and payable by Customer; and (d) Groupfire will cease to provide Customer with support services for the Groupfire Services. Groupfire shall transfer all Customer Data upon request by Customer within 30 days of the Termination Notice. Groupfire shall have no obligation to maintain or provide to Customer any Customer Data after such 30 day period, and may, unless legally prohibited, delete Customer Data in its systems or otherwise in its possession or under its control. Sections 5, and 7 - 12 shall survive any termination or expiration of the Agreement, as well as any other provisions which by their terms or sense are intended to survive.

12. MISCELLANEOUS

12.1. Notices. Groupfire may give general notices about the Groupfire Services to Customer by general notice via the Groupfire Service. All other notices given by either Party under this Agreement must be in writing sent by first class postage prepaid mail, nationally recognized overnight delivery service or in person, and are deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. Notices to Customer will be sent to its address as shown in the Order Form; and notices to Groupfire will be sent to the address stated in the opening paragraph of the SaaS Agreement, Attn: Legal Department, or such other address of which Groupfire may give notice hereunder.

12.2. Governing Law; Severability. The Agreement shall be governed by the laws of the United States and the State of California, without giving effect to conflicts of laws rules or principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Agreement. The Parties consent to the exclusive jurisdiction and venue for any disputes arising out of or in connection with the Agreement in the state and federal courts located in Orange County, CA. In any action to enforce the Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment. If a court of competent jurisdiction finds any provision of the Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

12.3. Amendment; Waiver; Force Majeure. The Agreement may be amended or any right waived only in writing signed by the Parties, except as expressly provided in the Agreement. A Party’s waiver of breach shall not be a waiver of any other or subsequent breach. Except for Customer’s payment obligations, neither Party shall be liable for any failure or delay in performance of the Agreement due to circumstances beyond its reasonable control, including but not limited to, acts of Nature, fire, labor difficulties, or governmental action.

12.4. Assignment. Customer may not assign its rights or delegate its obligations under the Agreement to any third party, including by operation of law, such as a merger or acquisition involving Customer, without the prior written consent of Groupfire, such consent not to be unreasonably withheld. Any purported assignment or transfer in violation of this section shall be void. The Agreement will bind and benefit the Parties and their successors and permitted assigns. Customer acknowledges and agrees that there are no third party beneficiaries to the Agreement.

12.5. Relationship of the Parties. Groupfire is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on its behalf.

12. 6. Entire Agreement; Conflict. The Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, relating thereto. In the event of a conflict between the provisions of the SaaS Agreement and an Order Form, the provisions of the Order Form shall prevail with respect to the Groupfire Services ordered under such Order Form.

EXHIBIT B

TOS REQUIREMENTS

Member agrees that Groupfire reserves the right to remove, delete, make unavailable or take other appropriate actions in regard to any Member Materials that are or are suspected to violate this Agreement or the Acceptable Use Policy as available at www.groupfire.com/acceptable-use-policy from time to time or applicable laws, threaten the security, integrity, or availability of the Groupfire Service generally or otherwise causing immediate, material and ongoing harm to Groupfire or others. In addition, Groupfire may disable Member’s access codes and suspend access to the Groupfire Service at any time and without notice in the event it reasonably believes the Member is in breach of the standards described in the preceding sentence.

Member agrees and acknowledges that all remedies it may have or seek to have regarding the Groupfire Service will be against [insert Customer name] (and not Groupfire).

 THE GROUPFIRE SERVICES, AND ANY OTHER SERVICES PROVIDED BY GROUPFIRE ARE PROVIDED ON AN AS-IS BASIS. MEMBER’S USE OF ALL SUCH SERVICES IS AT MEMBER’S OWN RISK. GROUPFIRE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO AGENT OF GROUPFIRE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF GROUPFIRE AS SET FORTH HEREIN. GROUPFIRE DOES NOT WARRANT THAT: (A) THE USE OF THE GROUPFIRE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE GROUPFIRE SERVICES, OR INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE GROUPFIRE SERVICES, WILL MEET MEMBER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) ERRORS OR DEFECTS IN THE GROUPFIRE SERVICES WILL BE CORRECTED; OR (E) THE SERVER(S) THAT MAKE THE GROUPFIRE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GROUPFIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.

NEITHER GROUPFIRE, ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF GROUPFIRE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE GROUPFIRE SERVICE, ANY OTHER SERVICES PROVIDED BY GROUPFIRE HEREUNDER OR THE RESULTS THEREOF. GROUPFIRE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. NEITHER GROUPFIRE, ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR DAMAGES OR ANY OTHER REMEDY AND ALL REMEDIES BY MEMBER SHALL BE AGAINST [INSERT CUSTOMER NAME] IN CONNECTION WITH THIS AGREEMENT AND MEMBER USE OF THE GROUPFIRE SERVICE. MEMBER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

Groupfire is a third party beneficiary under this Agreement, with respect to the Groupfire Service and related matters, including the right to enforce the terms of the Agreement, against Member as if it were a party hereto. This Agreement may be amended only in writing executed by the parties affected by such amendment, with the written consent of Groupfire.