Terms of Service

3.1. Provision of Services.

During the Subscription Term, the Company grants to the Customer a non-sublicensable, restricted, revocable, non-transferable, non-exclusive, limited subscription to access and use the Platform Services and the Platform, solely for the Subscriber's internal business purposes and not for resale or further distribution. Customer is responsible for use of the Services by Users and any party who accesses the Services with Customer's or a User's account credentials.

3.2. Service Level Agreement.

During the Subscription Term, the Company will use commercially reasonable efforts to respond to all incidents where Services are not available or there is material functional degradation within 24 hours. Availability is measured at the point where Services are made available by the Company and excludes unavailability caused by Customer, outages by third-party Internet transport providers, scheduled maintenance periods, or causes beyond the Company's reasonable control.

The Company will use reasonable efforts to provide advance notice of scheduled unavailability of the Services within the Services portal or by email.

3.3. Procurement and Provisioning by Affiliates.

Customer may procure Services under this Agreement for its own account and on behalf of its Affiliates. Customer is responsible for the acts and omissions of any Customer Affiliate that receives the benefit of the Services but is not a signatory under any Sales Order. Customer Affiliates may procure Services directly under this Agreement by executing a Sales Order with the Company. Any Customer Affiliate who signs a Sales Order will be deemed a Customer hereunder and is solely responsible for its performance or non-performance.

3.4. Changes.

The Company may modify the Services and reserves the right to discontinue individual features within the Services from time to time and will provide notice of such changes to customers via the Services web portal or website. The Company shall make reasonable efforts to provide comparable replacements so that functionality of the Platform Services is not impacted.

3.5. Data Retention.

The Company retains Customer data on the Platform for a period of ninety two (92) days from the date such data is first received or generated in connection with the Services. After this period, the Company may permanently delete such data unless otherwise agreed in writing. It is Customer's responsibility to export or back up any data before the expiration of the applicable retention period.

4.1. Responsibilities.

Customer will be responsible for all use of the Services and Documentation under its account, the accuracy, quality, integrity and legality of Customer Content, administering registration and password access to the Services, maintaining the security of Customer's account, passwords and files, and ensuring Users' compliance with this Agreement.

Customer will use the Services, and ensure that its Users use the Services, solely in compliance with applicable laws, rules and regulations; make available personnel and information reasonably required for the Services to be delivered; use commercially reasonable efforts to prevent unauthorized access to or use of the Services; and promptly notify the Company of unauthorized access or use.

Customer shall not use the Services for data storage or backup and shall maintain an independent backup of Customer Content. Customer shall not share sensitive data with the Company unless special handling has been agreed by the Company in writing in advance.

4.2. Restrictions.

Customer will not, and will ensure that its Users do not, directly or indirectly make the Services available to anyone other than Users or use the Services for the benefit of any unrelated third party; sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Services; reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; modify, translate or create derivative works based on the Services; remove proprietary notices or labels; use the Services to build or support products or services competitive to the Services; or include the Services in a service bureau or outsourcing offering.

4.3. Usage Rights.

Customers will not permit anyone other than its Users to access or use the Services. Customers will ensure that its use of the Services does not exceed the usage terms specified in the Sales Order (Usage Rights). If the Company determines that Customer is exceeding the Usage Rights, the Company will notify Customer, and Customer will have 30 days from the date of notice to bring usage within the limits of such Usage Rights. Otherwise, the Company may charge Customer, and Customer agrees to pay, for the applicable usage tier, co-termed with the Subscription Term in the applicable Sales Order. Unless otherwise set forth in the Sales Order, each User will be a named individual identified by his or her individual email address.

4.4. Suspension.

The Company may immediately suspend Customer's account and access to the Services if Customer fails to pay overdue undisputed amounts within 10 business days following written notice of delinquency, violates Section 4.2 (Restrictions), or violates Section 6.4 (Confidentiality). Any suspension will not relieve Customer of its payment obligations. The Company will promptly lift the suspension upon Customer's payment or remedy of the triggering violation, as applicable.

5.1. Fees and Payment.

Except for Fees subject to a good faith dispute, Customer will pay the Company the Fees as set forth in the applicable Sales Order and invoiced pursuant to this Agreement. Except as expressly set forth in this Agreement or the applicable Provisioning Document: fees are quoted and due in advance in United States Dollars, net of taxes, and invoiced on the start date of the applicable service period; fees paid are non-refundable; and payment obligations are non-cancelable. All amounts are due and payable as specified in the Sales Order. If no payment terms are specified in a Sales Order, payment terms are net 30 days from receipt of invoice.

5.2. Taxes; No Set-off.

All Fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Company Services. Customer is not responsible for taxes based on the Company's net income or property. Customer may not withhold any taxes or charges from amounts due to the Company or set off any amounts due to the Company.

6.1. The Company's Ownership Rights.

As between the parties, the Company retains all right, title and interest in its trademarks, service marks, logos, domain names, patents, copyrights, trade secrets, and other intellectual property rights in and to the Services, the Platform, related and underlying software, technology, algorithms, interfaces, processes, tools, Documentation, and any derivative works, modifications, or improvements of any of the foregoing (collectively, Company Technology). Except for the express limited rights set forth in this Agreement, no right, title or interest in the Company's intellectual property rights is granted to Customer.

6.2. Feedback.

From time to time Customer or its employees, contractors, or representatives may provide suggestions, comments, feedback or similar input regarding the Services, including suggestions for enhancements, improvements, new features or additional functionality (Feedback). Customer grants the Company a perpetual, irrevocable, royalty-free and fully-paid license to use and exploit Feedback in connection with the Company's business, including testing, development, maintenance and improvement of the Services.

6.3. Customer Content.

Customer Content is owned exclusively by Customer. Customer grants the Company a revocable, fully-paid, non-exclusive, worldwide license to copy, process and use Customer Content for the sole purpose of providing the Services to Customer.

6.4. Confidentiality.

Each party will use the Confidential Information of the other solely in accordance with this Agreement and will not disclose, or permit Confidential Information of the other party to be disclosed, directly or indirectly to any third party without the other's prior written consent, except as otherwise permitted herein.

Either party may disclose Confidential Information to employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by obligations at least as stringent as those herein; or as required by law, provided the disclosing party, if permitted and practicable, gives prior written notification and an opportunity to contest such disclosure and uses reasonable efforts to minimize disclosure.

Each party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations. Customer Content will be deemed Customer's Confidential Information and Company Technology will be deemed the Company's Confidential Information.

6.5. Aggregated Information.

The Company may aggregate, collect and analyze information relating to the provision, use and performance of the Services and may use such information during and after the term to develop and improve the Services and other Company offerings, including disclosure in aggregated and anonymized format such that no Customer, individual or household can be identified or re-identified.

7.1. General Warranty.

Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.

7.2. Services Warranty.

The Company warrants that the Services, under normal use, will perform materially in accordance with the Documentation.

7.3. Warranty Remedies.

Customer will notify the Company of any Services non-conformance under Section 7.2 without undue delay and no later than 30 days after the date on which Customer became aware of the condition giving rise to the claim. Provided Customer notifies the Company within such time and provides reasonable evidence of the non-conformance, the Company will correct the non-conformance at no additional charge. If the Company cannot re-perform such deficient Services as warranted, Customer's sole and exclusive remedy will be to terminate the deficient Services under Section 9.3(b) and recover a pro-rata portion of the fees paid for such deficient Services.

7.4. Warranty Disclaimer.

Except as expressly set forth herein and to the extent not prohibited by law, the Company disclaims any and all representations, warranties and guarantees that the Services will operate without error or interruption or will be free of vulnerabilities. Each party disclaims all express, implied or statutory warranties, including warranties of merchantability, title, non-infringement, or fitness for a particular purpose. The Company disclaims failures, delays, and other problems inherent in the use of the Internet.

8.1. Indemnification by the Company.

The Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party to the extent alleging that use of the Services or Documentation as permitted hereunder infringes or misappropriates a valid United States patent, copyright, trademark or trade secret (Claim), and will pay all damages and costs finally awarded against Customer or set forth in an approved settlement as a result of such Claim.

The Company's obligations are subject to Customer providing written notice within seven (7) days of becoming aware of such Claim, the Company having sole and exclusive authority to defend and settle the Claim, and Customer reasonably cooperating with the Company at the Company's expense. The Company shall not be responsible for settlements entered into or damages arising from admissions by Customer without the Company's prior written consent.

If use of the Services or Documentation by Customer has become, or in the Company's opinion is likely to become, the subject of any Claim, the Company may procure for Customer the right to continue using the Services or Documentation, replace or modify them to make them non-infringing with comparable functionality, or, if those options are not reasonably and commercially practicable, terminate this Agreement and provide a pro rata refund of prepaid fees.

The Company has no liability or obligation for any Claim to the extent caused by compliance with designs, guidelines, plans or specifications provided by Customer; use of the Services by Customer not in compliance with this Agreement; modification of the Services without the Company's prior written consent; Customer Content; or combination of the Services with third-party applications, products or services.

This Section 8.1 states the Company's and its Affiliates' sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim related to infringement or misappropriation of intellectual property rights.

8.2. Indemnification by Customer.

Customer will defend the Company against any claim brought by a third party alleging that Customer Content infringes or otherwise violates the intellectual property, privacy or other rights of the claimant, or that Customer's use of the Services other than as authorized in this Agreement violates applicable law or regulations or infringes the claimant's intellectual property rights. Customer will pay all damages and costs finally awarded against the Company or set forth in an approved settlement as a result of such claim.

The Company is not obliged to review Customer Content for accuracy, legality or potential liability, and Customer shall fully indemnify, defend and hold the Company harmless from damages, losses, costs, or liabilities caused to the Company on account of Customer non-compliance. The procedures set forth in Section 8.1 apply with respect to Customer's indemnification obligations.

10.1. Term.

The term of this Agreement begins on the effective date stated in any Sales Order or the date of acceptance of this Master Services Agreement via a click-through on the Company's website and will remain in effect until terminated in accordance with its terms.

10.2. Termination.

Each party has the right to terminate this Agreement upon written notice if there is no Sales Order currently in effect; if the other party commits a material breach of this Agreement and fails to remedy such breach, if capable of remedy, within 30 days after written notice; or, subject to applicable law, upon the other party's liquidation, commencement of dissolution proceedings, insolvency or assignment of substantially all assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within 60 days.

10.3. Effect of Termination.

If the Company terminates a Sales Order for Customer's uncured material breach, all fees set forth in the terminated Sales Order will be immediately due and payable, all rights granted thereunder will immediately terminate, and any fees for usage of the Services in excess of Usage Rights will also be immediately due and payable. If Customer terminates a Sales Order for the Company's uncured material breach, Customer will be entitled to a pro-rata refund for applicable prepaid fees under such terminated Sales Order for Services not performed as of the termination date.

Upon completion of the Agreement Term or termination of this Agreement, all rights to access and use the Services will terminate, the Company will irretrievably delete and destroy Customer Content and, if requested in writing, certify such destruction, and Customer will delete and remove from its computers all copies of Company Technology, including Company software, and, if requested, certify such deletion and removal in writing.

10.4. Survival.

Upon termination of this Agreement all rights and obligations granted therein will immediately terminate except that any accrued rights and Sections 4.1 (Customer Responsibilities and Restrictions), 5 (Fees and Payment), 6 (Proprietary Rights and Confidentiality), 7.4 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Effect of Termination), and 12 (General) will survive.

11.1. Personal Information Safeguards.

If the Company has access to Personal Information, the Company acknowledges that it shall hold such information in the strictest confidence and protect it in accordance with the confidentiality provisions in the Agreement and applicable laws, rules and regulations. The Company shall only use Personal Information as necessary to provide the Services; maintain appropriate administrative, physical and technical safeguards designed to protect Personal Information in accordance with industry standards and applicable law; encrypt Personal Information at rest and in transit; notify Customer without undue delay following confirmation of unauthorized third-party access to Personal Information; and promptly remediate identified security vulnerabilities and results of a data breach.

Customer acknowledges and agrees that it shall not upload Personal Information to the Services; the only Personal Information to which the Company will have access is login information used by Customer's Users; and the Company may use Personal Information provided by Users or Customer in accordance with the Company privacy policy posted on the Services website.

11.2. Personal Information.

Personal Information means information provided to the Company by, or at the direction of, Customer, or to which access was provided to the Company by, or at the direction of, Customer in the course of the Company's Services under this Agreement that identifies or can be used to identify an individual, can be used to authenticate an individual, or is deemed personally identifiable information pursuant to applicable laws of the jurisdiction where Services are rendered.

12.1. Compliance with Laws.

Each party agrees to abide by all laws, ordinances and regulations, whether international, federal, state, local or provincial, to the extent applicable to its performance under this Agreement.

12.2. Assignment; Delegation.

Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party's prior written consent. Notwithstanding the foregoing, either party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning party's business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.

12.3. Waiver.

If any provision of this Agreement is found to be unenforceable or invalid, 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. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

12.4. Independent Parties.

The parties are independent contracting parties. Nothing in this Agreement will be construed to create a partnership, joint venture, employment, or agency relationship between the parties.

12.5. Force Majeure.

Neither party will be deemed in breach for any cessation, interruption or delay in performance due to causes beyond reasonable control, including earthquake, flood, other natural disaster, acts of God, pandemic or similar outbreak, labor controversy, civil disturbance, terrorism, war, cyber-attacks, inability to obtain sufficient supplies, transportation or other essential commodity or service, or any change in or adoption of law, regulation, judgment or decree.

12.6. Governing Law.

This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws rules. The state and federal courts located in the County of Sussex, Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.

12.7. Customer Reference.

The Company is permitted to disclose that Customer is one of its customers to any third party at its sole discretion and to use Customer's logo on the Company's website. Customer also agrees to consider reasonable requests to serve as a reference or host onsite reference visits, collaborate on press releases, and collaborate on case studies or other marketing collateral as mutually agreed between the parties.

12.8. Notices.

The Company may give general notices for Services applicable to all customers via a notice on the Services web portal. Any legal notice required or permitted to be given hereunder will be given in writing by electronic mail and via registered post or reputed courier. Notices to Customer must be sent to the email or other address set forth in the applicable Sales Order. Notices to the Company must be sent to GrowthDuty, Inc., 16192 Coastal Highway, Lewes, Delaware 19958, County of Sussex, and emailed to [email protected].

12.9. Entire Agreement.

Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.

No terms or conditions stated in a Customer purchase order, vendor or partner onboarding process or web portal, or any other Customer order documentation, other than the Sales Order as mutually agreed and signed by both parties, will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. In the event of a conflict between the Master Services Agreement and a Sales Order, the Sales Order shall prevail.

This Agreement or any underlying Sales Order may be executed in separate counterparts. A signature transmitted by electronic image such as a PDF shall be effective. For certain uses of the Platform Services, Customer may be asked to indicate acceptance of this Master Services Agreement by clicking a button marked I Accept, I Agree, Okay or I Consent, or other words or actions that similarly acknowledge consent or acceptance of click-through terms and conditions. Any consent so provided will be deemed valid consent under all applicable laws.