SERVICE AGREEMENT TERMS AND CONDITIONS

 

These Terms and Conditions (the “Terms”) applicable to any Customers who have created an account with Growth99 or otherwise utilized the services provided by Growth99.  These Terms, together with any other terms, policies, Service Orders, purchase orders and agreements referenced herein, collectively form the agreement (the “Agreement”) between Growth99 and the user (the “Customer” or “you”) of this website and any services offered hereunder.

 

By accessing and/or using the Growth99 website [LINK] (the “Site”) and/or utilizing Services identified in the Service Order (the “Services”) or offered hereunder, you agree to these Terms.  Please review these Terms carefully, along with any other terms, policies and agreements forming the Agreement, and immediately cease using the Site and Services if you do not agree to them.

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1. SERVICES

 

• Services; Right of Access. Subject to the provisions of this Agreement, Growth99 will provide the Services identified in the Service Order.  In connection with the Services, and subject to the limitations contained herein, Growth99 grants to Customer a nonexclusive, nontransferable right to access the tools and applications necessary and applicable to the particular Services enumerated in the Service Order.  Such use rights shall be limited to those rights as may be necessary for Customer’s use and enjoyment of the Services. Unless otherwise specified by Growth99 in writing, any and all rights granted by Growth99 to Customer shall only apply to Customer and not Customer’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.

 

• Access and Account Setup. Upon execution of a Service Order, Growth99 will provide Customer such account access and login credentials (the “Customer Credentials”) necessary to the access and utilization of the Services web pages hosted and maintained by Growth99. Growth99 disclaims any responsibility for acts or omissions of Customer or any other person accessing the Services using the Customer Credentials.  From time to time, Growth99 personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.

 

• Customer Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined below). All Content created through or submitted to the Services by Customer (collectively “Customer Content”) is the sole responsibility of Customer and Customer hereby represents and warrants to Growth99 that any and all elements of the Customer Content that is furnished to Growth99 in connection with the Services, is owned by Customer or the Customer has the necessary authorization from the rightful owner of same to use such elements. Customer acknowledges and agrees that Growth99 will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants Growth99 a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to Customer.

 

• Use Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Growth99’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) copy, gather, distribute, compile, manufacture, adapt, create derivative works of, translate, or otherwise modify any aspect of the Services; (c) decompile, disassemble, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (e) interfere or attempt to interfere with the functionality or operation of the Services or any activities conducted in connection therewith, (f) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (g) permit any third party to engage in any of the foregoing proscribed acts.

 

• Service Modifications. Growth99 reserves the right to modify or discontinue any part of the Services at any time by giving thirty (30) days’ prior written notice to Customer, PROVIDED, that any such modification or discontinuance which materially reduces the functionality of the Services shall give Customer the rights terminate this Agreement upon at least thirty (30) days’ prior written notice to Growth99, and Growth99 shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of such termination.

 

• Service Availability. Growth99 will use commercially reasonable efforts to maintain and provide the Services, subject to downtimes resulting from maintenance, repairs and upgrades. Prior to any such known or anticipated downtime, Growth99 will attempt to notify Customer electronically. Notwithstanding the foregoing, Growth99 will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Content (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Growth99’s facilities or control.

 

• Service Support. Growth99 will provide Customer with email or, at Growth99’s option, telephonic support for Customer’s use of the Service during the regular business hours of Growth99. Customer agrees that Growth99 is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware.

 

2. PROPRIETARY RIGHTS. Subject to the rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, Growth99 (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Site, the Growth99 platform, the API, all Content (excluding the Customer Content), all Growth99 trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein.  Additionally, all Customer (a) suggestions for correction, change or modification to the Services, (b) evaluations, and (c) other feedback, information and reports provided to Growth99 hereunder (collectively, “Feedback”), will be the property of Growth99, and Customer shall and hereby does assign any rights in such Feedback to Growth99.  Customer agrees to assist Growth99, at Growth99’s expense, in obtaining intellectual property protection for such Feedback, as Growth99 may reasonably request.

 

3. CONFIDENTIALITY

 

• Each party agrees that the business, technical and financial information, including without limitation, the Services, the Platform, and the API, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Customer through the Services (other than Customer Content) shall be considered Growth99’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.

 

• Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors.  Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

 

• Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

 

4. PAYMENTS; TAXES. Customer shall pay to Growth99 fees as set forth in the applicable Service Order in accordance with the terms therein. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less.  All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Growth99’s net income.

 

5. LIMITED WARRANTY AND DISCLAIMERS

 

• Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is the legally binding obligation of such party and is enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement does not and will not conflict with any obligation, agreement, order, judgment or instrument to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.

 

• Customer represents and warrants that (a) Customer has all rights to grant the licenses to Growth99 set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.

 

• Growth99 will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer use of the Services not in accordance with this Agreement or any relevant documentation provided by Growth99, (b) failures in any telecommunications, network or other service or equipment outside of Growth99’s or its service providers’ facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond Growth99’s reasonable control, or (e) unauthorized access, breach of firewalls or other hacking by third parties. Growth99 does not warrant that its Services and the functionality of any website or application created as part of the Services will be uninterrupted or error-free.

 

6. EXCEPT AS PROVIDED IN SECTION 5.1 HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, GROWTH99 HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

 

7. LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF SWIFTLY) OR PAID AND PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

 

8. INDEMNIFICATION

 

• Customer agrees to defend against and hold Growth99 harmless from any claim by a third party that arises from or is related to (a) any Customer Content, (b) Customer’s use of the Services in violation of this Agreement, and to indemnify Growth99 for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.

 

• Growth99 agrees to (a) defend against and hold Customer harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim.  In limitation of the foregoing, Growth99 shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Growth99, (iii) any Customer Content, or (iv) Customer’s continuing allegedly infringing activity after being notified thereof.  The foregoing states the entire liability of Growth99, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

 

• Alternative Remedy. If any part of the Services become or, in Growth99’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Growth99 may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing. If (1) and (2) are not reasonably available to Growth99, Growth99 may terminate this Agreement upon written notice to Customer and refund to Customer a pro-rated amount of any pre-paid fees.

 

• Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.  The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).  The indemnifying party shall not be liable for any settlement made without its prior written consent.

 

9. TERM AND TERMINATION

 

• Unless otherwise specified in an applicable Order Form or terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue for one (1) year from the Effective Date (the “Term”).  The term shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then current term.

 

• This Agreement may be earlier terminated: (a) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment); or (b) by Customer upon sixty (60) days written notice to Growth99 PROVIDED that Customer pays Growth99 all fees scheduled to be paid pursuant to an applicable Service Order through the remainder of the then-applicable Term or Renewal Term.

 

• Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Proprietary Rights), 3 (Confidentiality), 6(Disclaimers), 7 (Limitation of Liability) 8 (Indemnification), 10 (General Provisions) and this Section 9.3 shall survive.

 

10. GENERAL PROVISIONS

 

• This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Growth99’s written consent.  Growth99 may freely assign this Agreement.  This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

 

• Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

 

• All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated in the applicable Service Order or at such other address designated by written notice.  Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

 

• Customer hereby consents to inclusion of its name, logo and Customer Content in client lists and marketing materials that may be published as part of Growth99’s marketing and promotional efforts.  From time to time upon Growth99’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).

 

• Governing Law. This Agreement shall be governed by and construed under the laws of the State of Utah and the United States without regard to conflicts of laws provisions thereof.  Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in Salt Lake County, Utah, and both parties consent to the jurisdiction of such courts with respect to any such actions.

 

• If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

 

• Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity.  Each party agrees that, in the event of any breach or threatened breach of Section 3, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law.  Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

 

• Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

 

• Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

 

• Entire Agreement. This Agreement, together with any Service Order associated herewith, constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof.  Any inconsistent or additional terms on any related Service Order, confirmation or similar form, even if signed by the parties hereafter, shall be superseded by the terms of this Agreement unless such inconsistent or additional terms post-date this Agreement and are expressly stated as superseding the terms hereof.