Last modified: 07/09/2020
You should carefully read the following terms and conditions before using the GroveHR platform service provided at www.grovehr.com (“Service”) by KMS Technology, Inc. and its Affiliates (“KMS”, “we” or “us”). By clicking the [“Accept ”] button and using the Service, you acknowledge your acceptance of the following terms of service as updated from time to time ("Terms of Service"). The "Agreement" means the Terms of Service, the pricing and features you select as part of your subscription, and any written order, whether separately or online through www.grovehr.com, that you and KMS or its Affiliate execute that refers to these Terms of Service (each, an “Order”). “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least 50% of the voting stock of such entity.
Except as indicated, all references to “you” in the Terms of Service after this paragraph or in an Order shall mean the corporation or other legal entity (“organization”). By clicking the [“Accept ”] button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.
If you do not agree to the terms and conditions of these Terms of Service, then proceed no further and do not use the Service.
Copies of the Terms of Service are available for download and printing by using current web browser software and going to http://www.lp.grovehr.com/terms-of-service.
This Agreement comprises the entire agreement between you and KMS, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.
OVERVIEW. You must register for an account with GroveHR in order to access and use the Service. Please register for your GroveHR account at www.grovehr.com if you have not done so. As part of creating and updating your account you will provide certain identifying contact information and payment information. “Account Information" means this contact and payment information and other contact and payment information submitted by you or Users to the Service. "Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service for your benefit and have unique user identifications and passwords for the Service. “Admin User” means a User who is your contact for purposes of controlling your subscription account. Changes may be made on your billing page within your GroveHR account.
SUBSCRIPTION PLANS. Details for the types of subscriptions, including their features and limitations, can be found at www.grovehr.com/pricing (“Subscription Plans”), and not all features and functionality of the Service may be available in each Subscription Plan. KMS offers a free Subscription Plan with limited functionality and other limitations (“Free Subscription”). Additional limitations and terms for the Services may be specified in your Order.
USE OF SERVICE. Subject to the terms and conditions of this Agreement, your Users may access and use the Service during your Subscription Term (defined below) solely to assist with the management of your internal employee records related to your recruitment, onboarding, offboarding, and other employment processes. You acknowledge that KMS may use third-party service providers for some or all of the operations that make available the Service.
DOCUMENTATION. “Documentation” means the documentation that accompanies the Service or is made available at www.grovehr.com. You may use the Documentation solely in connection with your permitted use of the Service. You also may make a reasonable number of copies of the Documentation in connection with your permitted use of the Service.
USER MANAGEMENT. The User Admin will manage your User access. Your and your Users’ protection of their IDs and passwords is an integral part of maintaining the privacy and integrity of data in the Service. You shall keep confidential and not disclose, nor permit any User to disclose, any ID or password to third parties. You shall notify KMS immediately of any unauthorized use of any ID or password or any other known or suspected breach of security with respect to your use of the Service. You are responsible for ensuring that all Users comply with the terms of this Agreement and for all activities of Users and others that occur through your account.
OTHER LIMITATIONS. In addition to any conditions or restrictions elsewhere in this Agreement, you may not (a) sublicense, copy, modify, or publicly display the Service or any of the underlying technology or the Documentation, (b) use on behalf of any third party, or permit any third party to use, the Service, (c) decompile or reverse engineer the software used to provide the Service, (d) remove any proprietary rights notices in the Service or Documentation, (e) attempt to gain unauthorized access to the Service or circumvent any security measures within the Service, (f) access the Service if you are or become KMS’s direct competitor, except with KMS’s prior written consent, or (g) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise harmful to any person or property.
RESERVATION OF RIGHTS. Except for the limited rights expressly granted above in this Agreement, KMS reserves all rights, title, and interest in and to the Service and its underlying technology, and the Documentation, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. You acknowledge and agree that the Service and all Documentation represent KMS’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.
SUPPORT. If support is included in your Subscription Plan, KMS will provide you with support as described in your Subscription Plan. Support is not a part of any Free Subscription.
FEES. You will pay KMS the fees for the Services based on your Subscription Plan. Pricing for Subscription Plans is found at www.grovehr.com/pricing. KMS may change the pricing from time to time. You will be notified of any change to existing prices before the change goes into effect. If a price change is not acceptable to you, you may cancel your subscription as provided below. Continuing to use the Service after the change goes into effect constitutes your acceptance of the price change.
BILLING. "Billing Period" means the period for which you agree to prepay fees as stated in the Order, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Service for a three-year Subscription Term, with a 12 month upfront payment, the Billing Period will be 12 months. KMS will bill you in advance periodically (monthly, annually, or on a different frequency) based on your Subscription Plan and Billing Period and the terms of your Order. The fees billed will reflect the actual number of Users and other metrics on which your Service fees are based according to your Subscription Plan and the applicable Order.
FEE ADJUSTMENTS. . During the Billing Period, if you exceed the number of Users or any of the limits of your Subscription Plan, your fees may be adjusted within that Billing Period effective at the beginning of next calendar month; at that time KMS will charge you for the overage on a prorated basis for the remainder of that Billing Period and will charge you the updated fees at the beginning of the next Billing Period.
PAYMENT. You may elect to pay by credit card and enter your credit card information where indicated on the billing page of your GroveHR account. If you are paying by credit card, you authorize KMS to bill the fees to the credit card you provide when they are due. KMS’s acceptance of a credit card does not relieve you from any obligation to pay for the use of the Service. KMS may invoice you for amounts due if credit card payment is not effective for any reason. If you are paying by invoice, we will invoice based on your billing frequency under your Subscription Plan and applicable Order. All amounts invoiced are due and payable within 30 days from the date of the invoice, unless otherwise specified in the Order. You shall pay interest in the greater of 1.5% per month or the highest amount allowed by law on any amounts not received when due. The fees are exclusive of all taxes, and you shall pay all taxes, duties, or charges of any kind imposed by any taxing authority for the amounts due under this Agreement, excluding taxes based solely on KMS’s income. All fees are nonrefundable.
Customer Data. "Customer Data" means the records and other data you submit to and store in the Service about your employees and employment processes. Customer Data does not include Enrichment Data. You grant KMS the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use Customer Data, and permit KMS’s service providers to do so, during and after the term of this Agreement in order to do the following: (a) provide the Service and make Customer Data available to you, (b) improve the Service and KMS’s other products and services, and (c) create Enrichment Data (defined below) and make Enrichment Data available as part of the Service. You own and retain all rights in the Customer Data. After the Agreement ends KMS will use Customer Data on an ongoing basis to create Enrichment Data and make Enrichment Data available.
Enrichment Data. “Enrichment Data” means the data we create based on combination, aggregation and/or analysis of Customer Data with similar data from other KMS customers, Usage Data, third party sources or any combination of these. We provide you Enrichment Data as part of the Service. While Enrichment Data is based in part on Customer Data, KMS owns and retains all rights in the Enrichment Data, other than your Customer Data that is included among the Enrichment Data. Enrichment Data that is made available as part of the Service and that contains Customer Data that identifies you and your personnel is made available only to you or those third parties to whom you authorize to view that Enrichment Data; Enrichment Data that is made available generally (such as data about salary competitiveness within or across industries) will not reveal your identity, any of your Customer Data or the identity of your Users or your employees. KMS grants you a worldwide, nonexclusive right during the term of this Agreement to copy, display, modify, store, and otherwise use the Enrichment Data as part of your use of the Service.
Usage Data. As a part of the Service, KMS and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding your use of the Service, such as the number and types transactions you conduct using the Service (“Usage Data”). Usage Data does not include your Customer Data or your Account Information. KMS owns and retains all rights in the Usage Data. We may use the Usage Data for any business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your Customer Data or the identity of your Users or your employees.
Location. Data that KMS processes on your behalf may be transferred to, and stored and processed in, the United States or any other country in which KMS or its Affiliates or subcontractors maintain facilities. You agree to any such transfer to any such country and to store and process Account Information and Customer Data in order to provide the Services.
General Use by KMS. KMS may transfer Customer Data, Usage Data and Aggregate Data to a third party in connection with (a) a permitted assignment of this Agreement or (b) a delegation of hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in this Agreement. In addition, KMS may disclose Account Information, Customer Data, Usage Data and Aggregate Data if required by law or to any government body upon its audit or other inspection of the records or facilities of KMS or its providers. You represent and warrant that you have the right to use and permit KMS and its Affiliates to use your Account Information and Customer Data in accordance with this Agreement.
Generally. KMS will implement commercially reasonable safeguards intended to protect the confidentiality of Account Information and Customer Data. KMS will maintain security policy that complies with the ISO 27001 standards for the establishment, implementation, control, and improvement of the Information Security Management System and the ISO/IEC 27002 code of best practices for information security management (“Information Security Policy”). Subject to your agreement to non-disclosure obligations KMS specifies, KMS will make the Information Security Policy available to you, along with other information reasonably requested by you regarding KMS security practices and policies.
Individual Requests. Other than User requests with respect to their Account Information as part of their use of the Service, KMS will not independently respond to requests from your employees or other individual data subjects about personal data in any Account Information or Customer Data we store, without your prior written consent, except where required by applicable law.
Incidents. If KMS becomes aware of any unlawful access to any Account Information or Customer Data stored under KMS’s control as part of the Services, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Account Information or Customer Data (each a “Security Incident”), then KMS will promptly (a) initiate remedial actions that are in compliance with applicable law and consistent with industry standards, and (b) notify you of the Security Incident, its nature and scope, the remedial actions we will undertake, and the timeline within which we expect to remedy the breach. You will be responsible for fulfilling your obligations under applicable law.
SUGGESTIONS. You grant KMS a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you, including your Users, relating to the Service (“Feedback”). KMS may use and incorporate any Feedback without any compensation or acknowledgment to you.
SUSPENSION OF ACCESS. KMS may suspend your access to the Service for nonpayment of any undisputed amounts, for any violation of this Agreement, or if KMS reasonably believes that your activity is harming the Service or the rights or property of any person. In the case of suspension for nonpayment, KMS will notify you 10 days in advance. You acknowledge that you will not have access to the Service during any suspension. KMS may exercise the rights in this Section prior to exercising the termination provisions of this Agreement and without prior written notice to you. Unless the Agreement is terminated, KMS will remove the suspension upon resolution of the cause of the suspension. We may suspend, limit, or terminate a Free Subscription for any reason at any time.
SUBSCRIPTION TERM. "Subscription Term" means the initial term of your subscription to the applicable Service, as specified on your Order, and each subsequent renewal term (if any); however, the Subscription Term for Free Subscriptions will be the period during which you have an account to access the Free Subscription. Except for a Free Subscription, the Subscription Term will automatically renew for additional periods equal to that initial period, unless cancelled by either party with at least 10 days’ notice to the other party prior to the end of the then-current Subscription Term. Your notice to KMS requesting cancellation should be sent to email@example.com. KMS will notify you of cancellation via your contact email address in your account profile. Cancellation will be effective at the end of the then-current Subscription Term. All renewals are subject to the applicable Service continuing to be offered by KMS and will be charged at the then-current rates.
TERMINATION. A party may terminate this Agreement: (i) upon 30 days’ notice to the other party of a material breach by the other party if such breach is not cured within that period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on 30 days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on our prospects, or our customers or our intellectual property. This Agreement may not otherwise be terminated prior to the end of the Subscription Term. In addition, KMS may terminate any Free Subscription by notifying you at any time and for any reason, including due to your inactivity.
EFFECT OF TERMINATION. Upon termination for any reason, your use of the Service will stop, and upon request, you will provide us written confirmation that you have discontinued all use of Enrichment Data. KMS will archive your Customer Data after termination, and for a period of 30 days after termination, you may reactivate your account by making a written request within with this 30 day period, in which case we will provide you with temporary access to the Service to retrieve, or we will provide you with copies of, your Customer Data then in our possession. If we provide you with temporary access to the Service, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. After this 30-day period, KMS will have no obligation to maintain or provide you the Customer Data and may delete any Customer Data at its discretion, but it is not obligated to do so. For Free Subscriptions, we will not provide you with any access to the Service or Customer Data after termination or expiration of Service. If you want to subscribe to a paid Subscription Plan from the Free Subscription and pay the associated fees within 30 days of the end of the Free Subscription, then the Customer Data you have entered during your Free Subscription will be made available to you as part of your new paid Subscription Plan.
DISCLAIMERS. KMS makes no, and disclaims, all warranties and conditions of any kind, whether express, implied, statutory or otherwise, including any warranties of merchantability, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
KMS does not warrant that the service will be uninterrupted, error-free, or completely secure. KMS does not and cannot control the flow of data to or from KMS, your network, and other portions of the Internet. Such flow of data depends in large part on services provided or controlled by third parties, and at times, actions or inactions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). KMS cannot guarantee that such events will not occur. Accordingly, KMS disclaims any and all liability resulting from or related to such events.
You are responsible for the accuracy and reliability of all Customer Data. You are responsible for all decisions based on your use of the Service, including without limitation, any hiring, termination, promotion, or other employment-related activity, and for any losses or liabilities arising from how you use the results of the Service. Without limiting the foregoing, you agree that KMS and its officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Service, such outputs including, without limitation, the quality or accuracy of any screen displays or reports. In addition, KMS is not responsible for any third-party products or services which you may use with the Service, even if the Service permits integration with such third party products or services.
LIMITATION OF LIABILITY. In no event will KMS or its Affiliates, or its or their officers, directors, agents, and employees, be liable to you under this Agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds the greater of (a) the fees you have paid KMS for the Service in the 12 months preceding the claim or (b) $100. In no event will KMS or its officers, directors, agents, and employees, be liable to you for consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill or profit in connection with the Service or this Agreement, even if KMS has been advised of the possibility of such damages or costs. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.
IP INDEMNIFICATION. KMS shall defend any claim brought by a third party against you that the Service infringes any U.S. patent, copyright, trademark, or trade secret of any third party (“Claim”) and shall pay any award of damages and costs made against you in a final judgment by a court of competent jurisdiction, or any amount in settlement, arising out of a Claim. KMS’s obligations in this Section are conditioned upon (1) you providing KMS prompt written notice of the Claim; (2) you providing reasonable assistance and cooperation to enable KMS to defend the Claim; and (3) KMS having sole control over the defense of the Claim and any negotiations for its settlement. If the use of the Service becomes, or in KMS’s opinion is likely to become, the subject of a Claim, then KMS at KMS’s option and expense may either (a) procure the right for you to continue to use the Service as permitted under this Agreement, or (b) replace or modify the Service so that it becomes non-infringing. If unable to do (a) or (b) after exercising commercially reasonable efforts, KMS may terminate this Agreement upon written notice to you. At such time, KMS shall return to you the subscription fees which have been prepaid for the period of time remaining in your Subscription Term for which you will no longer receive the Service. KMS will have no liability for any claims caused by or contributed to by (i) any modification or alteration of the Service performed other than by KMS, (ii) use of the Service other than as specified in its Documentation and under this Agreement, (iii) any hardware, software, data or other materials not provided by KMS, (iv) the combination or use of the Service with non-KMS software, hardware, data, materials or services, or (v) any other acts by you in violation of this Agreement. This Section states your exclusive remedy against KMS and the complete liability of KMS with respect to any claim of infringement made against you.
YOUR INDEMNIFICATION. You shall defend, indemnify and hold harmless KMS, its Affiliates and its and their officers, directors, employees, agents, successors and assigns from and against any and all losses, costs, expenses (including attorneys’ fees and expenses), claims, liabilities, and damages of any kind incurred by those persons or entities which result from (a) your violation of this Agreement, (b) your Customer Data, (c) your violations of law or the rights of any third party, (d) any hiring, termination, advancement, or other employee-related decisions you make based on the Service.
IDENTIFICATION AS CUSTOMER. KMS may identify your organization as a customer in KMS’s promotional materials including on its Web site. KMS will stop this use at your request if you send an email with that request to firstname.lastname@example.org.
COMMUNICATIONS. Any notices to KMS regarding this Agreement should be made to email@example.com. KMS may send any notices to you to the contact email you specify for your User Admin in your GroveHR account. You are required to keep the contact information for your User Admin current.
GOVERNING LAW AND LANGUAGE. This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices, and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.
(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum nonconveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.
(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC”). The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of the arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.
(c) Notwithstanding the foregoing, KMS may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.
LIMITATION OF ACTIONS. No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.
EXPORT COMPLIANCE. The Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Service in violation of any U.S. export law or regulation.
U.S. GOVERNMENT END-USE PROVISIONS. The following applies to all acquisitions of the Service and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Service and documentation and services utilizing the Service and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Service and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Service and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.
MODIFICATIONS AND AMENDMENTS. We modify the Service from time to time, including by adding or deleting features and functions, in an effort to improve our customer experience. We may update and change any part or all of these Terms of Service. If we update or change these Terms of Service, the updated Terms of Service will be posted at http://www.lp.grovehr.com/terms-of-service. We will do our best to let you know via the contact email you specify for your User Admin in your GroveHR account. The updated Terms of Service will become effective and binding on the next business day after it is posted. When we change these Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. If you do not agree with a modification to the Terms of Service, you must notify us in writing within 30 days after receiving notice of the modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your current Subscription Term. Upon renewal, the revised Terms of Service will apply unless the Agreement has ended pursuant to the terms of the “SUBSCRIPTION TERM” or “TERMINATION” sections above.
MISCELLANEOUS. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Except for modifications made by KMS in accordance with the “MODIFICATIONS AND AMENDMENTS” section, above, no waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of KMS. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.