Terms of Service

BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, (3) USING ANY FREE SERVICES, OR (4) OTHERWISE ACCESSING OR USING ANY SERVICES PROVIDED BY GROWTHFACTOR (“GROWTHFACTOR,” “WE,” “US,” OR “OUR”), YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS OF SERVICE (THE “AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT; IN SUCH CASE, THE TERMS “YOU,” “YOUR,” OR “CUSTOMER” REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY PORTION OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU FIRST CLICK “ACCEPT,” EXECUTE ANY ORDER FORM, OR OTHERWISE USE THE SERVICES (THE “EFFECTIVE DATE”).

‍1. Services Provided
‍GrowthFactor will provide the services as identified in each order form (the “Services”) entered into by the parties under this Agreement (each such order form, an “Order”). The parties may agree to enter into additional engagements for additional or different Services in separate Orders. 

‍2. Term and Termination
‍Unless terminated earlier pursuant to the terms and conditions of this Agreement or otherwise set forth in the Order, this Agreement will commence on the Contract Start Date and will remain in force until the Contract End Date (the “Initial Term”). Thereafter, this Agreement will renew for an additional term of the same length as the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides the other with notice of its intention not to renew at least thirty (30) days prior to the expiry of the then-current term. 

‍Either party may terminate this Agreement upon written notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party in violation of this Agreement; (ii) fails to correct a material breach of its obligations under this Agreement within 30 days after receipt of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) initiates a bankruptcy, reorganization or insolvency proceeding, or has such a proceeding initiated against it, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee. Sections 2, 3, 5, 6, 7, 8, 9, 10, 12, and 14 and Customer’s obligation to pay amounts due before the effective date of termination or expiration will survive any termination or expiration of this Agreement. 

‍3. Notice
‍Any notice, or payment made by check, required to be given under the Agreement shall be in writing and delivered either (i) personally to the other designated party or mailed by certified, registered or USPS Express mail, return receipt requested or by a recognized overnight delivery service to the addresses listed above; or (ii) electronically via email or other electronic payment method. 

‍4. Fees and Payment Terms
‍In exchange for the Services and the rights granted pursuant to this Agreement, Customer will pay to GrowthFactor the fees as set forth in the Order. Invoices outlining Services provided and applicable fees will be sent in arrears at the frequency stated in the Order, unless otherwise specified. GrowthFactor may in its sole discretion change the fees applicable to the Services provided that GrowthFactor gives Customer written notice of any such fee changes with at least 30 days’ notice. 

‍5. Confidential Information
‍For the purposes of this Agreement, “Confidential Information” includes any information, technical data, or know-how concerning either party, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances, and the relationship between the parties as evidenced by this Agreement. 

Confidential Information also includes any materials or information provided by either party to the other that are identified by the disclosing party as confidential or proprietary, or that the receiving party should reasonably understand to be confidential and proprietary. Confidential Information does not include information that: (i) was in the public domain at the time the receiving party received it; (ii) comes into the public domain after the receiving party received it through no fault of the receiving party; (iii) the receiving party received from a third party without breach of the receiving party’s or third party’s confidentiality obligations; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information; or (v) the receiving party is required by law to disclose. For the avoidance of doubt, the terms and conditions of this Agreement will be considered Confidential Information of both parties. 

Neither party will use any Confidential information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature (and in any case no less than a reasonable degree of care). Neither party will disclose the other party’s Confidential Information to any person or entity other than its officers, directors, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as restrictive as those in this Section. 

‍6. Data Protection and Privacy
‍GrowthFactor will comply with all applicable data protection laws and regulations in handling Customer data. GrowthFactor Privacy Policy (available at: https://www.growthfactor.ai/privacy) will govern GrowthFactor’s use and storage of, security of, and access to, Customer data. 

‍7. Customer Intellectual Property
‍Customer, or its third party licensors, retains ownership of all Customer intellectual property (the “Customer IP”). Customer hereby grants to GrowthFactor a non-exclusive, paid-up, royalty-free, non-sublicensable (except to GrowthFactor’s service providers, contractors and consultants) license to copy, display, distribute, modify, create derivative works of and otherwise use the Customer IP for the purpose of providing the Services under this Agreement. 

‍8. GrowthFactor Intellectual Property
‍Customer acknowledges and agrees that: (i) the Services and all associated deliverables and work product provided by or on behalf of GrowthFactor to Customer and/or Customer’s designees, including without limitation any associated software, documentation, applications, websites, tools, products, and software made available by GrowthFactor, and any modifications, enhancements and updates thereto, and all intellectual property rights therein (collectively, “GrowthFactor IP”) are exclusively owned by GrowthFactor and/or GrowthFactor’s third party providers and licensors; (ii) GrowthFactor IP contains valuable copyrighted material and is protected by U.S. and international copyright and other intellectual property laws; (iii) subject to Customer’s compliance with this Agreement, GrowthFactor grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license for the term of the applicable Order to access and use GrowthFactor IP provided under such Order as provided by GrowthFactor, solely for the purpose of using the Services in compliance with this Agreement; and (iv) Customer has no rights in GrowthFactor IP other than the license granted in this Section. 

‍9. Liability and Indemnification
‍Customer agrees to hold GrowthFactor harmless and to indemnify GrowthFactor against any and all claims which may arise out of the use of artificial intelligence provided to Customer. The total liability of GrowthFactor (including its subsidiaries, its parent and subsidiaries of its parent, its service providers and licensors, and the employees, officers, directors and agents thereof) in the aggregate over the term of this Agreement for call claims, causes of action, or liability, whether sounding in contract, tort, or otherwise arising under or in an way related to this Agreement and/or the Services or GrowthFactor IP shall be limited to the fees paid by Customer in the most recent twelve (12) month period under the Order under which liability arose. GrowthFactor (including its subsidiaries, its parent and subsidiaries of its parent, its service providers and licensors, and the employees, officers, directors and agents thereof) shall not be liable for any indirect, special, exemplary, punitive, incidental, or consequential damages under this Agreement or in connection with any Services or GrowthFactor IP provided hereunder, including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss arising out of the use or inability to use the Services, GrowthFactor IP, or any output, even if GrowthFactor has been advised of the possibility of such damages and even if available remedies are found to have failed of their essential purpose. Notwithstanding the foregoing, GrowthFactor’s sole obligation in the event of an error by GrowthFactor in the performance of any Services under this Agreement shall be limited to reprocessing applicable data or reperforming the Services. Customer acknowledges that GrowthFactor has set its fees, and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. 

‍10. Disclaimer
‍THE SERVICES PROVIDED BY GROWTHFACTOR ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. GROWTHFACTOR, AND ITS AFFILIATES, SUPPLIERS, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS, AND VENDORS, MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS, GROWTHFACTOR DOES NOT WARRANT THAT THE SERVICES OR CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE IN COMBINATION WITH THIRD-PARTY SERVICES, OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN SOLE AND EXCLUSIVE RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GROWTHFACTOR OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. 

‍11. Force Majeure
Neither party shall be liable for any failure or delay in performance due to circumstances beyond their reasonable control. 

‍12. Governing Law and Jurisdiction
‍This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Massachusetts. 

‍13. Assignment
‍Neither party may assign this Agreement without the prior written consent of GrowthFactor, such consent not to be unreasonably withheld; provided however, that no such consent will be required for an assignment in connection with any transfer to an affiliate or for a transfer to a successor-in-interest by way of merger, consolidation or sale of all or substantially all of the assigning party’s stock or assets. 

14. Miscellaneous
‍These Terms and Conditions, together with the then effective Orders, constitute the entire agreement between the Customer and GrowthFactor regarding the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. This Agreement, including the exhibits hereto, may be amended only by an instrument in writing executed by the parties or their permitted assignees. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement.