GROOPEX LICENSE AND SERVICES AGREEMENT

 

A. Agreement Definitions

“You” and “your” refers to the individual or entity that is a party to this agreement (“agreement”) and ordered Groopex programs and/or services from Groopex Limited (“Groopex”) or an authorized distributor.  The term “programs” refers to the software products owned or distributed by Groopex which you have ordered, program documentation, and any program updates acquired through technical support.  The term “services” refers to technical support, education, outsourcing, consulting or other services which you have ordered.  The term “application user” refers to the number of "Hosts" or teachers covered by your order.  

  

B.  Applicability of Agreement

This agreement applies to all Groopex programs you have ordered effective as of the date Groopex accepts your order.  By installing, downloading, copying, or otherwise using the programs, you agree to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, do not install or use the programs.

C. Rights Granted

Upon Groopex’s acceptance of your order, you have the limited right to use the programs and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the definitions and rules set forth in the order and the program documentation. Rules pertaining to the order and the program documentation can be found at  Http://Groopex.com. Services are provided based on Groopex's policies for the applicable services ordered, which are subject to change, and the specific policies applicable to you, and how to access them, will be specified on your order.  Upon payment for the programs and services you ordered, you will have a limited, non-exclusive, non-assignable, royalty free license to use the programs during the term set forth in your order. 

The license granted under this agreement is granted on application user basis.  Your order sets forth the maximum number of individuals that you may authorize to use the programs which are installed on a single server or multiple servers, regardless of whether the individual is actively using the programs at any given time. You may install and use the programs for additional application users only upon payment of additional program license fees.

D.  Ownership and Restrictions 

Groopex retains all ownership and intellectual property rights to the programs and anything developed by Groopex and delivered to you under this agreement resulting from the services.  You may not: 

  1. Use the programs or any parts thereof for purposes other than expressly permitted in this agreement;
  2. Assign, give or transfer the programs and/or any services ordered or an interest in them to another individual or entity;
  3. Engage or permit timesharing, service bureau, subscription service, or rental use of the programs;
  4. Make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);  
  5. Modify or copy the programs or cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the programs; or
  6. Disclose results of any program benchmark tests without Groopex’s prior written consent. 

Certain software, or portions thereof, included in the program are distributed under the GNU General Public License ("GPL"), other similar open source license agreements and other third party agreements which contain terms that expand (or restrict) your and/or third parties' rights to certain portions of the program. The GPL and other similar open source license agreements permit you and/or third parties to copy, modify, redistribute and have access to the source code of certain portions of the program.  To the extent the GPL, other similar open source license agreements or other third party agreements require Groopex to provide rights to the applicable portions of the program that are broader than the rights granted elsewhere in this agreement, then the GPL and/or other similar open source license agreements shall take precedence over the rights and restrictions set forth in this agreement, but only in respect of the specific portions of the programs that are the subject of GPL or similar licenses.

You understand and acknowledge that the programs licensed by this agreement work with other third-party technologies which you may be separately licensed to use. Your rights to use separately licensed third-party technologies under the separate terms are not affected by this agreement.  You understand and acknowledge that Groopex does not control, manage or is otherwise responsible for such third-party technologies, and Groopex disclaims any responsibility for the quality, truthfulness, price or continuity of those services, their Application Programming Interface (API) and connectivity features.  Groopex disclaims any and all liabilities of any kind whatsoever arising from your use of such third-party technologies, and you agree to indemnify and hold harmless Groopex from any claim, loss or damage Groopex may incur as a result of your use of such third-party technologies.

E. Warranties, Disclaimers and Exclusive Remedies

Groopex warrants that the programs licensed to you will operate in all material respects as described in the applicable program documentation for one year after delivery.  You must notify Groopex of any program warranty deficiency within one year after delivery.  Groopex also warrants that services ordered will be provided in a professional manner consistent with industry standards.  You must notify Groopex of any services warranty deficiencies within 90 days from performance of the services described in the ordering document.  

GROOPEX DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT GROOPEX WILL CORRECT ALL PROGRAM ERRORS. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY, AND GROOPEX’S ENTIRE LIABILITY, SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY, OR  IF GROOPEX CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER,  YOU MAY END YOUR PROGRAM LICENSE AND RECOVER THE FEES PAID TO GROOPEX FOR THE PROGRAM LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE PROGRAM LICENSE; OR (B) THE REPERFORMANCE OF THE DEFICIENT SERVICES, OR IF GROOPEX  CANNOT  SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE RELEVANT  SERVICES AND RECOVER THE FEES PAID TO GROOPEX FOR THE DEFICIENT SERVICES. 

F. Trial Programs

You may order trial programs, or Groopex may include additional programs with your order which you may use for trial, nonproduction purposes only.  You may not use the trial programs to provide or attend third party training on the content and/or functionality of the programs.  You have 30 days from the delivery date to evaluate these programs.  If you decide to use any of these programs after the 30 day trial period, you must obtain a license for such programs from Groopex or an authorized distributor.  If you decide not to obtain a license for any program after the 30 day trial period, you will cease using and will delete any such programs from your computer systems.  Programs licensed for trial purposes are provided “as is” and Groopex does not provide technical support or offer any warranties for these programs.  

G. Indemnification

Subject to the limitations set forth in this Agreement, Groopex agrees to indemnify you if any of the programs infringes on the intellectual property rights of any third party, so long as you::

•  notify Groopex promptly in writing, not later than 10 days after you receive notice of the claim;

•  give Groopex sole control of the defense and any settlement negotiations; and 

•  give Groopex the information, authority, and assistance it needs to defend against or settle the claim.  

If Groopex believes that it may have violated someone else’s intellectual property rights, it may choose to either modify the programs to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Groopex may end the license for, and require return of, the applicable programs and refund any fees you may have paid for it and any unused, prepaid technical support fees you have paid for the license.  Groopex will not indemnify you if your use of the programs was not in compliance with this agreement for any reason. This section provides your exclusive remedy for any infringement claims or damages.  

H. Technical Support

Unless you purchase additional technical support services offered for purchase, Groopex is under no obligation to provide any technical support services (except that Groopex will use commercially reasonable efforts to provide support for bug fixes and make available answers to frequently asked questions regarding the programs).  For purposes of the ordering document, technical support consists of Software Updates, Product Support and/or other annual technical support services you may have ordered.  If ordered, such technical support is provided under Groopex’s technical support policies in effect at the time the services are provided.  The technical support policies, incorporated in this agreement, are subject to change at Groopex’s discretion; however, Groopex will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid.  You should review the policies prior to entering into the ordering document for the applicable services.  You may access the current version of the technical support policies at Http://Groopex.com  Technical support is effective upon shipment, or if shipment is not required, upon the effective date of the ordering document.  If your order was placed through the Groopex web site the effective date is the date your order was accepted by Groopex.  

If you decide not to purchase technical support, you may not update any unsupported program licenses with new versions of the program.  Groopex reserves the right to desupport its programs or particular versions of its programs.  You will be notified in advance when Groopex determines that a program is to be desupported.  Such desupport notices will be posted at Groopex’s customer support web site as necessary.  

I.  End of Agreement 

If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, the other party may terminate this agreement.  If Groopex ends this agreement as specified in the preceding sentence or under the Indemnification section, you must pay within 30 days all amounts which have accrued prior to the end of this agreement, as well as all sums remaining unpaid for programs ordered and/or services received under this agreement plus related taxes and expenses.  Except for nonpayment of fees, we each agree to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach.  You agree that if you are in default under this agreement, you may not use those programs and/or services ordered.  Provisions that survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.  Upon termination of this Agreement you agree to promptly return or destroy the programs.

J.  Fees and Taxes 

All fees payable to Groopex are due within 30 days from the invoice date.  You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Groopex must pay based on the programs and/or services you ordered, except for taxes based on Groopex’s income.  Also, you will reimburse Groopex for reasonable expenses related to providing the services.  Fees for services listed in an ordering document are exclusive of taxes and expenses.   You agree that you have not relied on the future availability of any programs or updates in entering into the payment obligations in your order.  

K. Nondisclosure

By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”).  Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the  other  party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure.  Also, we each agree to disclose confidential information only to those employees or agents who are required to access it in furtherance of this agreement and who are required to protect it against unauthorized disclosure.   Nothing shall prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement.  

L. Logo and Customer Name Usage

Groopex has the right to use your name and/or logo at its discretion on marketing material including Groopex's website, brochures and presentations during the term of this contract , and identify you as a Groopex  customer when communicating with third parties.

M.  Entire Agreement 

You agree that this agreement and the information which is incorporated into this agreement by written reference (including reference  to information contained in a URL or referenced policy), together with the applicable order, are the complete agreement for the programs and/or services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such programs and/or services.  If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective.  It is  expressly agreed that the terms of this agreement and any Groopex ordering document shall supersede the terms in any purchase order or other non-Groopex ordering document and no terms included in any such purchase order or other non-Groopex ordering document shall apply to the programs and/or services ordered.  This agreement and ordering documents may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Groopex web site by authorized representatives of you and of Groopex.  Any notice required under this agreement shall be provided to the other party in writing.  

N.  Limitation of Liability 

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. GROOPEX’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES YOU PAID GROOPEX FOR THE DEFICIENT PROGRAM OR SERVICES UNDER THIS AGREEMENT AS SPECIFIED IN YOUR ORDER.  IN NO  EVENT SHALL GROOPEX’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID UNDER YOUR ORDER.   

O. Export

All relevant international and local export laws and regulations apply to the programs.  You agree  that such export control laws govern your use of the programs (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and  “deemed re-export” regulations).  You agree that no data, information, program and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.  

P. Other

This agreement is governed by the substantive and procedural laws of Hong Kong without reference to its conflict of laws principles and you and Groopex agree to submit to the exclusive jurisdiction of, and venue in, the courts in Hong Kong in any dispute arising out of or relating to this agreement.  If you have a dispute with Groopex or if you wish to provide a notice under the Indemnification section of this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: 

Groopex Limited 

35F Central Plaza,

18 Harbour Rd.,

Wanchai, Hong Kong.

Attention: Legal Department

You may not assign this agreement or give or transfer the programs and/or any services or an interest in them to another individual or entity.  If you grant a security interest in the programs and/or any services deliverables, the secured party has no right to use or transfer the programs and/or any services deliverables, and if you  decide to finance  your  acquisition  of the programs and/or any services, you will follow Groopex’s policies regarding financing which are at http://Groopex.com/contracts.  Except for actions for nonpayment or breach of Groopex’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.  Upon 45 days written notice, Groopex may audit your use of the programs.  You agree to cooperate with Groopex’s audit and provide reasonable assistance and access to information.  You agree to pay within 30 days of written notification any fees applicable to your use of the programs in excess of your license rights.  If you do not pay, Groopex  can end your technical support, licenses and/or this agreement.  You agree that Groopex shall not be responsible for any of your costs incurred in cooperating with the audit.  

Q. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party.  We both will use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice.  This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.