Last modified: May 20, 2025
STANDARD GENERAL TERMS
This Master Services Agreement (the "Agreement") is entered into as of the date of last signature of the applicable Order Form (the "Effective Date") by and between GrowthX AI, Inc. (the "Company"), and the customer identified in the applicable Order Form (the "Customer").
1.1 Services Description.Subject to the terms and conditions of this Agreement, the Company may provide the Customer with access to certain products and services as specified in the applicable Order Form (collectively, the "Services"). Depending on the Order Form executed by the parties, the Services may include:
(a) "Professional Services" means strategy, editorial, content production, and related services as described in the applicable Services Order Form; and
(b) "Platform Services"means access to the Company's one or more proprietary software platforms or technology products offered by the Company from time to time (each, a "GrowthX Platform"), as identified and described in the applicable Platform Order Form. The applicable Platform Order Form will specify: the GrowthX Platform(s) included, the applicable access URL(s); the features and functionality available thereunder; and any specific terms applicable to that Platform. This Section 1.1(b) and Platform Services apply solely where a Platform Order Form is in effect.
1.2The Customer's use of Platform Services may be subject to usage limits (for example, limits on the number of AI prompts or the number of AI responses that can be processed or collected) as specified in the applicable Platform Order Form. Such usage limits do not apply to customers who have executed only a Services Order Form.
1.3 Implementation Period.Following the Effective Date, the Company will complete the technical setup and configuration necessary to provide the Services. Subject to Section 3 (Customer Obligations), the Company (i) will schedule and conduct an onboarding meeting with Customer no later than ten (10) days after the Effective Date (the "Kick-off Event"), the date of which shall be the "Implementation Date" for all purposes under this Agreement; and (ii) may extend the Implementation Period to the extent reasonably necessary by written notice to Customer. Such extension shall not constitute a breach by the Company or affect any of the parties' rights under this Agreement.
Sections 2.1 through 2.4 apply solely where a Platform Order Form is in effect. For customers who have only executed a Services Order Form, access to and use of deliverables is governed exclusively by Section 5.2.4.
2.1 Access Grant.During the Term, and subject to Customer's compliance with this Agreement, the Company grants Customer a non-transferable (except as permitted under Section 12.2) and non-sublicensable, non-exclusive right to access and use the Services, including each GrowthX Platform identified in the applicable Platform Order Form, solely for Customer's internal business purposes, in accordance with the applicable documentation and any limitations in the Order Form.
2.2 Authorized Users.As part of the registration process, the Customer will identify an administrative username and password. The Customer may use the administrative user name and password to create accounts for additional authorized users ("Authorized Users"). Authorized Users are not permitted to share their accounts with any other person or entity. Customer agrees that it is responsible for ensuring that it and its Authorized Users maintain the confidentiality of their account information and that its Authorized Users comply with this Agreement. Customer acknowledges that it is solely responsible for any liabilities arising from:
(a) An Authorized User's non-compliance with this Agreement; and
(b) Any activity that occurs through an Authorized User's account.
Although the Company has no obligation to monitor Customer's use of the Service, the Company may do so and may prohibit any use of the Service it believes may be in violation of this Agreement.
2.3 Documentation.During the Term, the Company grants Customer a limited, non-exclusive, non transferable (except as permitted under Section 12.2) and non-sublicensable license to internally use the Company's standard user guides and technical documentation for the applicable GrowthX Platform that the Company makes generally available to its customers (the "Documentation"), solely in connection with Customer's authorized use of the Services under Section 2.1.
2.4 Restrictions.Customer shall not (and shall not permit any third party to) do any of the following with respect to Active Platform Output (as defined in Section 5.2) or the "Company Technology" (meaning the Services, Documentation, and any related software, technology, processes, or configurations provided by the Company (including each GrowthX Platform and all related systems) as well as any materials, models, code, data, tools, templates, processes, techniques or know-how that were developed by or for the Company that are used by the Company in connection with performing the Services):
(a) Distribution Prohibited: Provide access to, distribute, sell, resell, license, sublicense, or lease any Company Technology to any third party (other than making the Services available to Authorized Users);
(b) No Competitive Use:Use the Company Technology to develop or provide a competing product or service, or otherwise use the Company Technology to provide services to third parties (other than to Customer's own Authorized Users);
(c) No Reverse Engineering: Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or any non-public APIs of the Company Technology, except to the limited extent such restriction is prohibited by law (and then only with prior notice to the Company);
(d) No Derivative Works: Modify or create derivative works based on the Company Technology, or copy any element or feature of the Company Technology (except as expressly allowed in the Documentation);
(e) Proprietary Notices: Remove or obscure any proprietary or confidentiality notices on the Company Technology;
(f) Benchmarking:Publish or disclose any benchmarking or performance data about the Company Technology without the Company's prior written consent;
(g) Interference: Interfere with or disrupt the operation of the Company Technology, circumvent any access or usage restrictions, or attempt to probe, scan, or test the vulnerability of the Company Technology or related systems without authorization;
(h) Malicious Code: Transmit any viruses, malware, or other harmful code or materials into the Company Technology;
(i) Risk of Harm:Take any action using the Company Technology that is unlawful, that infringes any person's rights, or that could damage, disable, overburden, or impair the Services or any Company or third-party system; or
(j) Legal Compliance: Use the Company Technology in violation of any applicable laws or regulations, including laws related to data privacy, data transfer, international communications, or export control.
2.5 Third-Party Platforms.The Services may support integrations or interoperation with third-party platforms, add-ons, services, or products that are not provided by the Company (collectively, "Third-Party Platforms"). The Customer's use of any Third-Party Platform is subject to that third party's terms and conditions, not this Agreement. The Company does not control and is not responsible for any Third-Party Platform, including for the availability or reliability of a Third-Party Platform, or the accuracy or completeness of information shared by or available through such Third-Party Platform, or the privacy practices of the provider of such Third-Party Platform, or how the Third-Party Platform or its provider uses Customer Data.
2.6 Suspension of Services.This Section 2.6 applies solely where one or more Platform Order Forms are in effect. The Company may suspend Customer's access to one or more GrowthX Platforms (or any portion thereof) immediately and without prior notice if the Company, in good faith, believes that:
(a) Customer has breached this Agreement;
(b) changes in law or regulation, or the issuance of a legal or regulatory order, require the Company to temporarily suspend the affected GrowthX Platform(s) (for example, to ensure compliance or avoid legal liability); or
(c) Customer's use of a GrowthX Platform poses a security risk to that platform or other GrowthX Platforms or could adversely affect the Company's systems or other customers.
Where practicable, the Company will use reasonable efforts to notify Customer of a suspension in advance (e.g., via email). The Company will reinstate the Customer's access once the issue causing the suspension is resolved to the Company's reasonable satisfaction. Suspension of a GrowthX Platform shall not excuse Customer's obligation to pay applicable fees.
2.7 Modifications.This Section 2.8 applies solely where a Platform Order Form is in effect. The Company may modify, amend, alter, supplement or replace any GrowthX Platform from time to time, in whole or in part, without any notice to Customer; provided that the Company will use reasonable efforts to provide Customer written notice if the Company believes that any modification, amendment, alteration, supplement or replacement will cause a material adverse effect on Customer's access or use of the applicable GrowthX Platform. Customer agrees that its entry into this Agreement is not contingent on the Company developing, delivering or otherwise making available any future functionality or features of any GrowthX Platform, or dependent on any oral or written public comments made by the Company regarding future functionality or features of any GrowthX Platform.
3.1Customer is responsible for the content, accuracy, and legality of all Customer Data it provides and for its Authorized Users' use of the Services. Customer agrees to comply with all applicable laws in connection with its use of the Services. Customer represents and warrants that it has provided all necessary disclosures and obtained all necessary consents and permissions from data subjects or other third parties as required for the Company to Process (as defined below) such Customer Data as contemplated by this Agreement. Customer's provision of Customer Data, and the Company's use of it in accordance with this Agreement, will not violate any law or any rights or policies applicable to such Customer Data.
3.2 Cooperation Obligations.Commencing on the Implementation Date, Customer shall provide timely feedback and approvals, attend check-ins as agreed in the applicable Order Form and maintain the Company's access to the integrations and tools necessary to perform the Services.
3.3 Effect of Customer Non-Cooperation.Where Customer's fulfillment of its obligations under this Section materially affects the Company's ability to perform, such outcome shall not constitute a breach by the Company. The Company may adjust affected delivery timelines upon written notice to Customer.
4.1 Fees.The Customer will pay all fees specified in each Order Form for the Services and any related Company Technology ("Fees"). Unless otherwise stated in an Order Form, all Fees are in U.S. dollars. Fees for any renewal term will be at the Company's then-current standard rates, regardless of any discounted or promotional pricing in a prior term. If the Customer's payment is late, the Company may charge interest on the overdue amount at the rate of 1.5% per month (or the maximum rate permitted by law, if lower), from the payment due date until paid. All Fees are non-refundable, except as expressly provided in Section 7.4 (Mitigation).
4.2 Taxes.Fees are exclusive of any sales, use, goods/service, value-added, withholding, or similar taxes or levies ("Taxes"). Customer is responsible for all Taxes arising from its purchases under this Agreement, whether domestic or foreign, except for taxes based on the Company's net income. The Company may calculate and add Taxes to invoices where the Company is legally required to collect Taxes; if Taxes are not charged by the Company, Customer remains responsible for any applicable Taxes. Customer shall make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to the Company will be Customer's responsibility.
5.1 Use of Customer Data and Telemetry.
"Customer Data"means any data, information, or material (including any prompts or queries submitted by Customer or its Authorized Users through the Services) that Customer or its Authorized Users provide to the Company or upload to the Services, Customer hereby grants the Company a non-exclusive, worldwide, royalty-free, fully-paid, and non-sublicensable (except to the Company's contractors and service providers used by the Company in providing the Service) license during the Term to "Process" (which means to use, copy, transmit, store, modify, display, and create derivative works of) Customer Data solely as necessary for the following purposes:
(a) to provide and perform the Services and the Company's obligations under this Agreement;
(b) to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and the other Company offerings during and after the Term;
(c) to derive and generate Telemetry as defined below; or
(d) to comply with applicable laws or regulations.
Subsections (b) and (c) above apply solely where a Platform Order Form is in effect.
"Telemetry" means technical data and usage information collected by the Company about how the Customer and its Authorized Users use the applicable GrowthX Platform (for example, usage logs, performance metrics, and learnings), which is aggregated and does not identify Customer, Authorized Users, or any individual as the source. The Company may collect Telemetry and shall own such Telemetry and use it for its legitimate business purposes without restriction.
5.2 AI Tools.
Section 5.2 governs the use of AI Tools as part of the Company's technology platform. For customers who have only executed a Services Order Form, Section 5.2.4 governs ownership of all deliverables, and Sections 5.2.1 through 5.2.3 apply only to the extent a Platform Order Form is also in effect.
The Services may utilize artificial intelligence technology (collectively, "AI Tools"). For purposes hereof, " Input" means any queries, data or prompts submitted by or on behalf of the Customer to the Services and processed by AI Tools on behalf of the Customer; and "Active Platform Output" means any data, scores, benchmarks, visibility metrics, or other results actively generated and returned to Customer by the applicable GrowthX Platform or AI Tools in direct response to Customer's Input. Active Platform Output is distinct from Telemetry (Section 5.1), which is passively collected and aggregated by the Company, and from Services Product Deliverables (Section 5.2.4), which are custom content deliverables assigned to Customer upon payment.
5.2.1. Input Ownership. Applies solely where a Platform Order Form is in effect. As between the parties, Customer retains all right, title, and interest in and to its Input. The Customer hereby grants the Company a non-exclusive, sublicensable, worldwide, royalty-free license to host, reproduce, process, transmit, modify, and otherwise use the Input during the term solely as necessary to provide, operate, improve, and enhance the Services in accordance with this Agreement.
5.2.2. Active Platform Output Ownership.This Section 5.2.2 applies solely where a Platform Order Form is in effect and governs ownership of Active Platform Output. It does not apply to Services Product Deliverables, which are governed exclusively by Section 5.2.4. Customer acknowledges that the Company retains all right, title and interest in and to Active Platform Output generated based on Customer's Input, as well as the Services, the proprietary technology, and all underlying datasets, indexes, derived data structures, models, algorithms, scoring outputs, and related technology used to generate Active Platform Outputs. The Company hereby grants Customer a non-transferable (except as permitted under Section 12.2), non-sublicensable, non-exclusive, worldwide license during the term to access and use such Active Platform Output for the Customer's personal or internal business purposes only.
5.2.3. Active Platform Output Restrictions.Customer shall not, and shall not permit any third party to sell, resell, license, sublicense, distribute, publish, or otherwise make available the Active Platform Output on a standalone basis, including not to directly commercialize or monetize such third party content. For the avoidance of doubt, this Section 5.2.3 does not restrict Customer's use, publication, or distribution of Services Product Deliverables, which are governed exclusively by Section 5.2.4.
5.2.4. Services Product Deliverables.If the parties have executed an Order Form that expressly and specifically identifies certain custom content to be developed by the Company for Customer (the items so identified, collectively, "Services Product Deliverables"), then, subject to Customer's payment in full of all Fees owed for such Services Product Deliverables:
(i) Customer shall own all right, title and interest (including all intellectual property rights) in and to such Services Product Deliverables that is newly created by the Company specifically for Customer under the Order Form; and
(ii) The Company hereby assigns to Customer all right, title and interest in and to such Services Product Deliverables. For clarity, Services Product Deliverables does not include the Company Technology.
5.3 Ownership. Except for the rights explicitly granted in this Agreement, neither party transfers or grants any right, title, or interest in any intellectual property or technology to the other. As between the parties, Customer retains all rights (including intellectual property rights) in and to the Customer Data. As between the parties, the Company retains all rights (including intellectual property rights) in and to the Company Technology, including all improvements, enhancements or modifications thereto, and all Active Platform Output (including any proprietary data underlying the Active Platform Output), except as expressly provided in Section 5.2.4 with respect to Services Product Deliverables.
5.4. Feedback.This Section 5.4 applies solely where a Platform Order Form is in effect, or where Feedback relates specifically to the Company's technology platform(s) or tools. If the Customer provides the Company with any suggestions, ideas, feedback, or recommendations regarding the Company Technology, Active Platform Output (or underlying data), or the Company's services or products ("Feedback"), Customer acknowledges that all such Feedbacks (exclusive of any Confidential Information, Intellectual Property, or Customer Data of Customer) are the exclusive property of the Company and Customer hereby assigns all rights in and to any Feedback to the Company.
5.5 Data Processing Addendum.The Company's processing of personal data is governed by the Data Processing Addendum available at https://growthx.ai/legal/data-processing-addendum, incorporated into this Agreement by reference.
COMPANY TECHNOLOGY, THE SERVICES (INCLUDING ALL ACTIVE PLATFORM OUTPUT AND SERVICES PRODUCT DELIVERABLES), AND ANY SUPPORT OR PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY. THE COMPANY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, DISCLAIMS ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DATA (INCLUDING CUSTOMER DATA) WILL BE SECURE OR NOT LOST, OR THAT THE COMPANY WILL CORRECT ALL DEFECTS. THE COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES ARISING FROM THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OR NETWORKS OUTSIDE THE COMPANY'S CONTROL. CUSTOMER MAY HAVE CERTAIN LEGAL RIGHTS UNDER APPLICABLE LAW; HOWEVER, ANY STATUTORY WARRANTIES THAT CANNOT BE DISCLAIMED ARE, TO THE EXTENT PERMITTED BY LAW, LIMITED IN DURATION TO THE MINIMUM PERIOD ALLOWED.
Without limiting the foregoing, Customer acknowledges and agrees that:
(a) The Services and Active Platform Output do not constitute legal, financial, or other professional advice, and Customer should not rely on them as such;
(b) The Services may produce content or results (including Active Platform Output) that are inaccurate or erroneous;
(c) Customer is solely responsible for evaluating any Active Platform Output or other information obtained through the Services and for any actions it takes based on that information; and
(d) Due to the nature of artificial intelligence, it is possible that the Active Platform Output provided to the Customer may be identical or similar to that provided to other users of the Services (and any such identical or similar content provided to others will not be deemed the Customer's sole property or "Confidential Information" under this Agreement).
7.1 Indemnification by Company.The Company will defend Customer (and its officers, directors, and employees) against any claim by an unaffiliated third party alleging that the Company Technology, when used by Customer in accordance with this Agreement, infringes or misappropriates that third party's U.S. patent, copyright, trademark, or trade secret. The Company will indemnify and hold harmless Customer against any damages and costs finally awarded by a court or agreed in settlement (including reasonable attorneys' fees) that are attributable to such claim.
7.2 Indemnification by Customer. The Customer will defend the Company (and its officers, directors, and employees) against any third-party claim arising from or relating to:
(a) Excluded Activities (as defined below)
(b) Customer Data (including any allegation that Customer Data or Customer's use of the Services violates or infringes the rights of a third party or violates the law);
(c) Customer's use of the Active Platform Output or Services Product Deliverables (including any product or content Customer creates using the Active Platform Output or Services Product Deliverables); or
(d) Customer's breach of this Agreement. The Customer will indemnify and hold harmless the Company against any damages and costs finally awarded or agreed in settlement (including reasonable attorneys' fees) resulting from such claims.
7.3 Indemnification Procedures. The obligations of each party under this Section are conditioned upon the party seeking defense or indemnification:
(a) Promptly notifying the other party in writing of the claim (provided that a failure to give prompt notice will only relieve the indemnifying party of its obligations under this Section to the extent the delay prejudices the defense);
(b) Giving the indemnifying party sole control of the defense and settlement of the claim (except that the indemnified party's prior written consent will be required for any settlement that requires it to admit liability, pay money, or take any action other than ceasing use of any infringing materials); and
(c) Providing to the indemnifying party all reasonable cooperation and assistance at the indemnifying party's expense. The indemnified party may participate in the defense with counsel of its own choosing, at its own expense.
7.4 Mitigation. In the event any portion of the Company Technology becomes subject to a claim of infringement or misappropriation (or the Company reasonably believes it could become the subject of such a claim), the Company may, at its option:
(a) Procure for the Customer the right to continue using the affected Company Technology;
(b) Modify or replace the affected portion of the Company Technology to avoid the alleged infringement (while maintaining substantially similar functionality); or
(c) If the Company determines that the remedies in subparts (a) and (b) are not feasible, terminate Customer's use of the affected Company Technology and refund any prepaid fees covering the remaining Term of the affected subscription.
7.5 Exceptions to Company's Obligations. The Company will have no liability or obligation for any claim to the extent arising from:
(a) Customer's combination of the Company Technology with any product, software, or equipment not supplied or authorized by the Company (including any Third-Party Platform), if the claim would not have arisen but for such combination;
(b) Modifications to the Company Technology made by anyone other than the Company or its authorized contractors, if the claim would not have arisen but for such modification;
(c) Customer's continued use of the Company Technology after the Company has notified Customer to stop due to a third-party claim;
(d) Customer's breach of this Agreement or misuse of the Company Technology; or (e) Customer's use of any beta versions or other free or evaluation use of the Company Technology ((a) – (e) collectively, "Excluded Activities").
7.6 Exclusive Remedy. This Section sets forth the exclusive liability of the indemnifying party, and the exclusive remedy of the indemnified party, for the types of third-party claims and losses described in this Section.
8.1 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ANY OF ITS LICENSORS OR SUPPLIERS) WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, NOR FOR ANY LOSS OF USE, LOST BUSINESS, LOST REVENUE, LOST PROFITS, LOSS OF DATA, COST OF SUBSTITUTE SERVICES, OR BUSINESS INTERRUPTION, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF THE PARTY KNEW OR WAS ADVISED THAT SUCH DAMAGES WERE POSSIBLE.
8.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S TOTAL CUMULATIVE LIABILITY (TOGETHER WITH ITS LICENSORS AND SUPPLIERS) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. If no fees were paid (for example, during a free trial period), the Company's liability in the aggregate shall not exceed US $100.
8.3 Excluded Claims.
"Excluded Claims" means: (a) Either party's indemnification obligations, (b) Customer's breach of Section 2.4 (Restrictions) or Section 3 (Customer Obligations); and (c) Either party's breach of Section 10 (Confidentiality), except that claims relating to misuse or unauthorized disclosure of Customer Data shall not be deemed Excluded Claims.
8.4 Essential Purpose. The Parties agree that the waivers and limitations in this Section 8 are fundamental elements of the Agreement and apply regardless of the form or source of a claim, whether in contract, tort (including negligence), strict liability or otherwise, and will survive and apply even if any limited remedy provided in this Agreement is found to have failed of its essential purpose.
9.1 Term.Subject to earlier termination as provided below, this Agreement will commence on the Effective Date and continue for the term as specified on the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial term (collectively, the "Term"), unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
9.2 Termination for Cause. Either party may terminate this Agreement (including any or all Order Forms) upon written notice to the other party if the other party:
(a) Materially breaches this Agreement (including by failing to pay Fees when due) and fails to cure that breach within 30 days after receiving written notice describing the breach; or
(b) Ceases its operations or otherwise becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within 60 days.
9.3 Effect of Termination.Upon any expiration or termination of this Agreement all Order Forms then in effect shall automatically terminate concurrently, and: (i) Customer's rights to access and use the Company Technology will immediately cease, and the Company may disable Customer's accounts; (ii) all Order Forms then in effect shall automatically terminate and be of no further force or effect; and (iii) Customer will promptly pay any outstanding Fees owed for Services provided through the date of termination. Except as expressly required by law, the Company has no obligation to retain or provide any Customer Data after termination or expiration of this Agreement and may thereafter delete or destroy Customer Data in its systems or otherwise in its possession. Notwithstanding the foregoing, each party may retain copies of the other party's Confidential Information (including Customer Data) in routine data backups or where required for legal or compliance purposes, provided that such information remains subject to the confidentiality obligations in Section 10.
9.4 Survival. The following provisions will survive any expiration or termination of this Agreement: Section 2.4 (Restrictions), Section 3 (Customer Obligations), Section 4 (Fees), Section 5 (Data Use and IP), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9.3 (Effect of Termination), this Section 9.4 (Survival), Section 10 (Confidentiality), Section 10.4 (Required Disclosures), and Section 12 (Miscellaneous). Termination of the Agreement is not an exclusive remedy and, except as otherwise provided herein, all other remedies will remain available.
10.1 Definition of Confidential Information. "Confidential Information" means any non-public information disclosed by one party (the "Discloser") to the other party (the "Recipient") that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. All Customer Data, Services Product Deliverables, prompts, and Active Platform Output are the Customer's Confidential Information. The Company Technology (including non-public features and performance information) and the terms and conditions of this Agreement are the Company's Confidential Information. Confidential Information does not include information that the Recipient can demonstrate:
(a) Is or becomes generally available to the public without breach of any obligation owed to Discloser;
(b) Was known to the Recipient prior to its disclosure by the Discloser without any confidentiality obligation; (c) is received from a third party who, to the Recipient's knowledge, is not under any obligation of confidentiality to the Discloser; or
(d) Was independently developed by the Recipient without using or referencing the Discloser's Confidential Information.
10.2 Protection of Confidential Information.As Recipient, each party will: (i) not disclose the Discloser's Confidential Information to any third party except as expressly permitted in this Agreement; and (ii) use the Discloser's Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Notwithstanding the foregoing, the Recipient may disclose Confidential Information to its and its affiliates' employees, contractors, advisors, and agents who have a legitimate need to know the information for the Recipient to perform this Agreement, provided that each such recipient is bound by confidentiality obligations at least as protective as this Agreement and the Recipient remains responsible for their compliance. Upon Discloser's request, the Recipient will promptly delete or return all Confidential Information of Discloser in its possession, except that the Company (as Recipient) may retain and continue to use Customer's Confidential Information as necessary to provide the Services for the remainder of the Term, and each Recipient may retain copies of Confidential Information in routine archival or backup systems until those copies are deleted in the ordinary course (provided such retained copies remain confidential).
10.3 Injunctive Relief. The Parties acknowledge that unauthorized use or disclosure of Confidential Information may cause harm for which monetary damages may be an insufficient remedy. Each party therefore agrees that the other party will have the right to seek immediate injunctive or equitable relief (in addition to any other available remedies) to enforce obligations under this Section without the need to post a bond or prove actual damages.
10.4 Required Disclosures.If a Recipient is legally compelled by law, regulation, court order, or subpoena to disclose any of Discloser's Confidential Information (including Customer Data), the Recipient may do so, provided that (to the extent legally permitted) the Recipient gives the Discloser prompt written notice of the requirement so the Discloser may seek a protective order or other appropriate remedy to prevent or limit the disclosure. The Recipient will cooperate with such efforts at the Discloser's request and expense. If the Recipient is still required by law to disclose Confidential Information, it will disclose only the portion that is legally required, and will use reasonable efforts to obtain confidential treatment for such information.
This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. The Parties expressly agree that the exclusive jurisdiction for all disputes arising out of or relating to this Agreement shall be the state and federal courts located in San Francisco, California, and each party consents to personal jurisdiction in those courts and waives any objection to venue in those courts.
12.1 Publicity.As part of the Company's sales and marketing efforts, the Company may publicly identify Customer by name as a customer and may describe the services provided to Customer in general, and Customer hereby grants the Company a non-exclusive license to use and reproduce Customer's name, logos and trademarks as part of the Company's such sales and marketing efforts. The Company will cease such use of Customer's name or logo upon Customer's written request.
12.2 Assignment.Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent, except that either party may assign this Agreement in its entirety (together with all Order Forms) without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt to assign this Agreement in violation of this provision will be null and void. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and permitted assigns.
12.3 Notices. Except as otherwise provided in this Agreement, all notices under this Agreement must be in writing and will be deemed given:
(a) upon receipt if delivered personally or by courier;
(b) upon receipt (as confirmed by signed receipt) if mailed by certified or registered mail (postage prepaid and return receipt requested);
(c) one business day after being sent by a reputable overnight delivery service; or
(d) for notices sent by email, upon confirmation of transmission or receipt (or, if no confirmation is available, on the next business day after the email is sent, provided no bounce-back or error message is received).
Notices to the Company must be sent to 2261 Market Street, # 86308, San Francisco, CA 94114, or to any other address or email that the Company provides in accordance with this Section. Notices to Customer may be sent to the mailing address or email address associated with Customer's account or Order Form. Each party may change its notice contact information by giving written notice to the other party in accordance with this Section. In addition, the Company may provide routine updates, invoices, and other day-to-day communications to Customer by email or through the Services.
12.4 Entire Agreement.This Agreement (together with all Order Forms and any documents and URL terms incorporated by reference) constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Each party acknowledges that in entering into this Agreement, it has not relied on any representations or warranties not expressly set forth herein. The section headings in this Agreement are for convenience only and have no legal effect. The words "including" and similar terms shall be interpreted as "including, without limitation." This Agreement may be executed in counterparts (which may be electronic PDF copies), each of which will be deemed an original, and all of which together will constitute one and the same agreement.
For Customers who have executed this Agreement, this Agreement supersedes and governs to the exclusion of any click-wrap, browse-wrap, or online terms of service offered by GrowthX, including any terms of service or platform-specific terms applicable to any Company's Platform.
12.5 Amendments. Any amendment or modification of this Agreement must be in writing and signed or expressly agreed (electronically or otherwise) by an authorized representative of each party. The Parties agree that any terms or conditions included in a Customer Purchase Order or other business form will be void and of no effect, even if the document is signed or not objected to. Any such Customer document is for administrative purposes only.
12.6 Waiver and Severability. No waiver of any provision of this Agreement by either party is effective unless set forth in a written notice signed by an authorized representative of the waiving party. A waiver by either party of any breach of this Agreement will not operate as a waiver of any other breach. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. If needed, the Parties will negotiate in good faith to amend this Agreement to replace the unenforceable provision with a valid provision that is as consistent as possible with the original intent.
12.7 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except for payment obligations) due to events beyond its reasonable control. Such events include, for example, acts of God, war, terrorism, civil unrest, pandemic, strikes or labor disputes, embargoes, internet or utility failures, governmental orders, or other events of a magnitude or type for which precautions are not generally taken in the industry.
12.8 Subcontractors. The Company may use subcontractors or sub-processors to perform its obligations under this Agreement or to provide certain Services (for example, hosting providers), provided that the Company remains responsible for the performance of such subcontractors in compliance with this Agreement.
12.9 Independent Contractors. The Parties to this Agreement are independent contractors. Nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, fiduciary, or agency relationship between the Parties. Neither party has the authority to bind or commit the other party in any way, and neither party will hold itself out as having any such authority.
12.10 Export Compliance. The Company Technology is subject to U.S. export control and economic sanctions laws. Customer represents and warrants that:
(a) It is not located in, and will not use or make the Services available in any country or region that is subject to comprehensive U.S. sanctions (currently including, for example, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine), and Customer is not on any U.S. government list of prohibited or restricted parties;
(b) It will not use the Company Technology for any purpose prohibited by U.S. export control or sanctions laws (such as the development of nuclear, chemical, or biological weapons or missile technology); and
(c) It will not provide to the Company any information that is controlled under the U.S. International Traffic in Arms Regulations (ITAR) or similar laws unless expressly agreed in writing by the Company. Customer shall comply with all relevant export and import laws in its use of the Services.
12.11 Open Source.The Services may include or be provided with certain open source software ("OSS") components that are licensed by third parties under separate open source license terms. To the extent required by the license for any OSS, those open source license terms (and not this Agreement) will govern Customer's use of the OSS, provided however, that the Company's represents that no OSS incorporated in the Services will, by reason of such incorporation, require the Customer to disclose or distribute Customer's proprietary source code.
12.12 U.S. Government End Users.The software and Documentation comprising the Company Technology are deemed to be "commercial computer software" and "commercial computer software documentation" respectively, pursuant to DFARS 227.7202 and FAR 12.212. If the user or licensee is the U.S. Government or any agency thereof, the Company Technology and Documentation are licensed hereunder only as commercial items, and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12.13 Conflicts. In the event of any conflict or inconsistency between an Order Form and these Terms and Conditions, the Order Form will prevail (but only with respect to the specific subject matter of that Order Form).
12.14 Incorporation by Reference. Any terms, policies, or documents referenced by URL in this Agreement are incorporated herein by reference as of the Effective Date.
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