These GrowthLoop Terms of Service (“Agreement”), effective as of the date of first acceptance (the “Effective Date”), is by and between Flywheel Software LLC, doing business as GrowthLoop, a Delaware limited liability company (“GrowthLoop” or the “Provider”), and the client accepting this Agreement (the “Client”), hereinafter individually referred to as a “Party” and/or together referred to as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meaning given to them in the applicable governing agreement between the parties (including the applicable Order Form).
BY ACCESSING AND/OR USING THE GROWTHLOOP TECHNOLOGY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE FULL AUTHORITY TO LEGALLY BIND THE CLIENT TO THIS AGREEMENT. IF THE CLIENT DOES NOT AGREE TO OR CANNOT COMPLY WITH THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CLIENT, THEN CLIENT WILL NOT BE AUTHORIZED TO ACCESS OR USE THE GROWTHLOOP TECHNOLOGY.
1. Overview
1.1. Agreement Scope and Order Forms
Overview. This Agreement shall apply to GrowthLoop’s software products (the “GrowthLoop Technology”) and corresponding support and implementation services (the “Support Services”), each as further described in order form(s) entered into by the Parties hereunder (each an “Order Form”). Order Forms shall be in a format set by GrowthLoop and signed by an authorized representative of each Party that sets forth (i) the scope of GrowthLoop Technology that Provider licenses to Client thereunder, (ii) Provider’s data and engineering Support Services to integrate, deploy, and assist with the use of the GrowthLoop Technology, (iii) the fully enumerated scope of data destinations (the “Data Destinations”), (iv) the fees to be charged (the “Fees”), and (v) the term of the applicable Order Form. While each Order Form shall be governed by this Agreement, each Order Form also shall serve as a separate agreement. If there are any terms and conditions in an Order Form that conflict with the terms and conditions in this Agreement, then the terms and conditions in that Order Form shall take precedence to those in this Agreement solely with respect to such Order Form.
2. Fees and Payment Terms and Invoicing
2.1. Fees
Client will pay the Fees as set forth in the Order Form, including any minimums. Except as otherwise specified herein, (i) GrowthLoop Technology Fees are based on the GrowthLoop Technology rights granted, and not actual usage by Client, (ii) payment obligations are non-cancelable except as expressly set forth in this Agreement or the applicable Order Form, and (iii) fees paid are non-refundable.
2.2. Payment Terms
During the Term as hereinafter defined, Provider will invoice Client (which may be sent by email) for the Fees in accordance with the relevant Order Form. In the case of monthly Fees, Provider will invoice Client in advance on the first of the month, and in the case of one-time fees, Provider will invoice Client at the start of the term of such Order Form. Unless Client notifies Provider within ten (10) days of receipt of an invoice of its good faith reason to a dispute to any Fees in such invoice, Client shall pay Provider all amounts within thirty (30) days after the invoice date. Any Fees that are subject to a good faith dispute shall be paid within thirty (30) days after such dispute is resolved. If any Fees are not received by Provider by their due date, then without limiting Provider’s rights or remedies hereunder or by law, such Fees may accrue late interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, plus all expenses of collection. Without limiting its other remedies, Provider may suspend and/or revoke access to the GrowthLoop Technology for nonpayment of any Fees.
2.3. Taxes
The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for all Taxes associated with their purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Provider will invoice Client and Client will pay that amount unless Client provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. GrowthLoop Technology Terms and Conditions
3.1. Grant of Rights
Subject to the terms of this Agreement, during the term of the applicable Order Form Provider grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable, right to use the GrowthLoop Technology subject to the scope of use and metrics described in such Order Form. GrowthLoop shall provide GrowthLoop Technology and related infrastructure in a hosted environment provided and maintained by GrowthLoop, along with specific user access requirements.
3.2. Support Services
Order Form(s) may list and detail Support Services, including, but not limited to: (i) integration services, which are systems integration and data engineering services performed by Provider to assist in the deployment and integration of GrowthLoop Technology, and (ii) product usage support, which are services provided in response to requests for support by Client’s users who contact Provider at support@growthloop.com. All Support Services are non-refundable. Client will have the option to increase Support Services with Provider’s written consent and a corresponding amendment to the applicable Order Form. Client acknowledges and agrees that Provider retains all right, title, and interest in and to any and all rights arising out of or related to the output of the Support Services. Subject to the terms and conditions of this Agreement, Provider grants Client a limited, revocable, non-exclusive license to internally use the deliverables of the Support Services solely in connection with the GrowthLoop Technology.
3.3. Usage Restrictions
Client and its users shall only access and use the GrowthLoop Technology in accordance with the terms of this Agreement, the applicable Order Form, and all of Provider’s online documentation, user guidance, training, and other materials relating to such GrowthLoop Technology. Client will not, directly or indirectly (a) make the GrowthLoop Technology available to any third party, or use the GrowthLoop Technology for the benefit of anyone other than Client, unless approved in writing by Provider, (b) sell, resell, license, sublicense, distribute, make available, rent or lease GrowthLoop Technology, (c) use GrowthLoop Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (d) use GrowthLoop Technology to store or transmit malicious code, (e) permit direct or indirect access to or use of any GrowthLoop Technology in a way that circumvents a contractual usage limit, or use any GrowthLoop Technology to access or use any Provider intellectual property except as permitted under this Agreement or corresponding Order Form, (f) modify, copy, or create derivative works based on the GrowthLoop Technology or any part, feature, or function thereof, (g) disassemble, reverse engineer, or decompile the GrowthLoop Technology or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, or functions of the GrowthLoop Technology, or (3) copy any ideas, features, or functions of the GrowthLoop Technology, (h) remove any proprietary notices from the GrowthLoop Technology; or (i) use the GrowthLoop Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Client shall not use open-source code for development of or in any authorized derivative work of the GrowthLoop Technology in any manner that would subject the GrowthLoop Technology to open-source distribution. Provider may suspend and/or terminate Client’s access to any portion or all of the GrowthLoop Technology if Provider reasonably determines that (A) there is a disruption, security risk, threat or attack on any of the GrowthLoop Technology or to any other customer or vendor of Provider; (B) Client is using the GrowthLoop Technology for fraudulent or illegal activities; (C) Client fails to make payments of Fees when due and/or has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) Provider’s provision of the GrowthLoop Technology to Client is prohibited by applicable law; or (E) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Client to access the GrowthLoop Technology (any such suspension a “Service Suspension”). Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client may incur as a result of a Service Suspension.
3.4 Client Responsibilities
Client will (a) grant Provider with the authorization and access to each of the data sources listed in an Order Form, (b) be responsible and liable for compliance with this Agreement by its users, employees, contractors, and agents (c) be responsible for the accuracy, quality and legality of all of its data, the means by which Client acquired such data, Client’s use of its data with the GrowthLoop Technology and all outputs arising from such use (including, without limitation, any artificial intelligence and machine learning capabilities) (collectively, “Outputs”), and the interoperation of any third party applications with which Client uses the GrowthLoop Technology, (d) prevent unauthorized access to or use of the GrowthLoop Technology, and notify Provider promptly of any such unauthorized access or use, (e) use the GrowthLoop Technology only in accordance with this Agreement and any relevant Order Form, and applicable laws and government regulations, including without limitation any applicable data privacy regulations such as the California Consumer Privacy Act (“CCPA”) and the European Union General Data Protection Regulation (“GDPR”), (f) comply with terms of service of any third party applications with which Client uses the GrowthLoop Technology, (g) obtain access and authorization for all data processing performed by Provider for Client, including the right to perform any third party integrations, (h) act as payer for and directly pay all infrastructure costs for data processing, compute, and other cloud services associated with this Agreement and use of GrowthLoop Technology, or reimburse such costs when paid by Provider on behalf of Client, (i) permit its name and logo to be displayed on Provider’s website and other marketing materials to identify Client as a user of the GrowthLoop Technology, and (i) upon Provider’s request and Client’s consent, participate in the development of a case study which Provider may use to publicly promote its product and/or services. To ensure compliance with the terms of this Agreement, Provider or its designated representative shall have the right to review and audit Client’s use of the GrowthLoop Technology.
3.5 Intellectual Property and Confidentiality
Client acknowledges and agrees that the GrowthLoop Technology, and any copies, updates, and/or derivative works of the GrowthLoop Technology, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of Provider. For the avoidance of doubt, the GrowthLoop Technology shall at all times remain Provider’s sole and exclusive property, and Provider retains the right to change or refine the GrowthLoop Technology at its discretion in service of Client or to further its business objectives. Client shall not create or claim ownership in any derivative works of the GrowthLoop Technology. Client recognizes that Provider regards the GrowthLoop Technology and other Confidential Information as its proprietary information and as confidential trade secrets of great value. Client agrees not to provide or to otherwise make available in any form the GrowthLoop Technology, or any portion thereof, or any Confidential Information (defined below) of Provider to any person other than as expressly permitted by this Agreement or any Order Form, without the prior written consent of Provider. Provider acknowledges and agrees that all of Client’s data is and shall remain the intellectual property of Client and nothing in this Agreement or any Order Form shall grant Provider any ownership right or interest in or to such Client data or any portion thereof.
3.6 Third Party Tools
Client understands and agrees that Client’s use of any third-party software and/or third-party integrations associated with the GrowthLoop Technology (collectively, “Third Party Software”) and/or third-party services (i.e., Data Destinations) will be governed by such third party’s license terms and conditions. Client understands and agrees that Provider is not and shall not be responsible or liable for Client’s, user’s, and/or any other third party’s obligations relating to any such Third-Party Software and/or third-party services, and Provider specifically disclaims any liability relating thereto. Provider will, to the extent permitted, pass through any terms provided by such third party.
3.7 Data Protection Addendum
The Parties agree to be bound by and adhere to the Data Protection Addendum incorporated into this Agreement by reference and available at https://www.growthloop.com/legal/dpa, as the same may be modified by Provider from time to time, with regard to the use of information that identifies one or more individuals (“Personal Information”).
3.8 Application Monitoring
Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client’s and each user’s access and use of the GrowthLoop Technology and Outputs, collect and compile meta-data, data and information related to Client’s and each user’s access and use of the GrowthLoop Technology that is and can be used by Provider to improve, train, and develop its products and services, including artificial intelligence and machine learning models, provided such use does not identify Client or any individual (“Application Monitoring Data”). Client acknowledges that, as between Client and each user on the one hand, and Provider on the other hand, Provider owns all right, title, and interest, including all intellectual property rights therein, in and to the GrowthLoop Technology and Application Monitoring Data.
3.9 Artificial Intelligence Terms
To the extent that the GrowthLoop Technology includes or utilizes artificial intelligence or machine learning capabilities, the terms and conditions governing such use shall be set forth in the AI Terms Addendum, which is incorporated into this Agreement by reference and available at https://www.growthloop.com/legal/ai-addendum (the “AI Terms Addendum”). Without limiting anything else herein or in the AI Terms Addendum, GrowthLoop makes no guarantee of accuracy, completeness, or regulatory compliance of Client’s Outputs, and Client remains responsible and liable for human review and downstream use of all such Outputs.
3.10 Early Access Products
Provider may from time-to-time designate certain features, products, or services as “Early Access,” “Alpha,” or “Beta” (collectively, “Early Access Products”) in the applicable Order Form. Early Access Products are provided for evaluation purposes and may be subject to additional or different terms as set forth in the applicable Order Form or as otherwise specified by Provider. Unless otherwise agreed in writing, Early Access Products are provided “AS-IS” without any warranty, representation, or service level commitment, and Provider may modify, suspend, or discontinue any Early Access Product at any time without liability. Pricing for Early Access Products is subject to change upon reasonable notice to Client.
3.11 Feedback
If Client and/or any user chooses to provide input and suggestions regarding the GrowthLoop Technology (“Feedback”), then Client and/or such user hereby grants Provider an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use such Feedback in any manner and for any purpose, including to improve the GrowthLoop Technology, or create other products and services.
4. Confidentiality
4.1. Confidentiality Obligations
In connection with this Agreement and the Order Form(s), a Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) information which is commercially sensitive, confidential, proprietary, and/or trade secret to the Disclosing Party and which is identified as confidential at the time of disclosure or which is reasonably apparent to be confidential based on the type of information and the circumstances of disclosure (“Confidential Information”). For a period of five (5) years after termination of this Agreement (or in the case of a trade secret for as long as such trade secret remains protectable under applicable laws), the Receiving Party shall not disclose any such Confidential Information to any third party other than its employees, contractors, and agents, and only on an as-needed basis. The terms and conditions of this Agreement and any applicable Order Forms, as well as any GrowthLoop Technology source code or architecture, shall be considered Confidential Information of both Parties and shall not be disclosed without the other Party’s written consent; however, high level information used to provide references, recommendations and case studies shall not be considered Confidential Information of either Party. In no event shall Client use Provider’s Confidential Information to reverse engineer or otherwise develop products and services functionally equivalent to the products or services of Provider. The Receiving Party shall not retain any rights to any of the Disclosing Party’s Confidential Information and shall not use said Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. At the request of the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party that is then in the possession or control of the Receiving Party, provided that the Receiving Party may retain, but not use, archived versions of such Confidential Information for a period of up to five (5) years following termination of this Agreement, which remain subject in all respects to the obligations of confidentiality and non-use set forth in this Agreement.
4.2. Exclusions
The Disclosing Party’s Confidential Information shall not include information which: (i) is in the public domain at the time of its disclosure hereunder or thereafter becomes part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was already known to the Receiving Party as of the time of its disclosure hereunder without an obligation of confidentiality, (iii) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; (iv) is subsequently learned by the Receiving Party from a third party that is not under a confidentiality obligation to the Disclosing Party with respect to such disclosure; (v) is authorized for disclosure by the Disclosing Party.
4.3 Legally Required Disclosures
Notwithstanding anything else herein, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent that it is required pursuant to a duly authorized subpoena, court order, or government authority, whereupon, as permitted by applicable law. The Receiving Party shall provide prompt written notice to the Disclosing Party, prior to such disclosure, so that the Disclosing Party may seek a protective order or other appropriate remedy, and, if such remedy is not obtained, the Receiving Party shall disclose only that portion of the Disclosing Party’s Confidential Information which is legally required to be disclosed and shall seek confidential treatment thereof.
5. Representations, Warranties and Warranty Exclusions
5.1. Provider Warranty
Provider warrants that the Support Services shall be provided in accordance with the applicable Order Form in a professional and workmanlike manner by personnel possessing the required skills and experience. In the event of a breach of this warranty, Provider shall, as Client’s sole and exclusive warranty, use commercially reasonable efforts to correct the non-conformity.
5.2. Mutual Warranty
Each Party represents and warrants to the other that: (i) it shall comply with all relevant laws in performing its respective responsibilities and exercising its rights under this Agreement; and (ii) it is authorized to enter this Agreement. Further, each Party warrants to the other that it shall use commercially reasonable information technology security practices (the “IT Security Practices”) in the performance of its responsibilities hereunder.
5.3. Disclaimer
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE GROWTHLOOP TECHNOLOGY AND SUPPORT SERVICES ARE AVAILABLE “AS-IS” AND “AS-AVAILABLE.” PROVIDER AND ITS LICENSORS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITS GROWTHLOOP TECHNOLOGY AND OR PERFORMANCE OF SUPPORT SERVICES HEREUNDER. EXCEPT FOR WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, PROVIDER DOES NOT WARRANT THAT THE OPERATION OF THE GROWTHLOOP TECHNOLOGY AND WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PROVIDER WILL CORRECT ALL DEFECTS. PROVIDER MAKES NO WARRANTY WITH RESPECT TO ANY DATA DESTINATIONS, THIRD‑PARTY PRODUCTS, SERVICES, DATA, OR PLATFORMS, INCLUDING THOSE THAT INTEROPERATE WITH OR ARE ACCESSED THROUGH THE GROWTHLOOP TECHNOLOGY AND. ANY REMEDIES PROVIDED UNDER THIS AGREEMENT FOR BREACH OF WARRANTY ARE CLIENT’S SOLE AND EXCLUSIVE REMEDIES. FURTHER, PROVIDER AND CLIENT ACKNOWLEDGE AND AGREE THAT PROVIDER DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME OR RESULT FROM CLIENT’S USE OF THE GROWTHLOOP TECHNOLOGY UNDER THIS AGREEMENT. PROVIDER SHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY.
6. Limitation of Liability
6.1. Indirect Damages
IN NO EVENT WILL PROVIDER BE LIABLE TO CLIENT, ITS USER, OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING LOST REVENUES OR PROFITS, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF CLIENT DATA, OUTPUTS, OR GROWTHLOOP TECHNOLOGY SECURITY, AND EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
6.2. Direct Damages
PROVIDER’S AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES CLIENT PAID TO PROVIDER IN THE PRIOR TWELVE (12) MONTH PERIOD UNDER THE SPECIFIC ORDER FORM GIVING RISE TO SUCH DAMAGES, EXCLUDING ANY AMOUNTS PAID BY CLIENT ON A PASS-THROUGH BASIS. NOTHING IN THIS AGREEMENT WILL LIMIT CLIENT’S LIABILITY FOR PAYMENT OF FEES OR INFRINGEMENT OR MISAPPROPRIATION OF PROVIDER’S INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION.
7. Indemnification
7.1. Client Indemnity
Client shall indemnify, defend and hold harmless Provider, its affiliates, and its and their respective employees, principals, agents, successors and assigns (each, a “Provider Indemnitee”), from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third party claim, demand, suit or administrative proceeding (each, a “Claim”) (i) that the Client’s data or Outputs, or any use of the Client’s data or Outputs with the GrowthLoop Technology in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; or (ii) based on Client’s or any user’s (a) negligence or willful misconduct, (b) use of the GrowthLoop Technology and/or Support Services in a manner not authorized by this Agreement or in combination with Client’s Data Destinations or other data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing, (c) modifications to the GrowthLoop Technology and/or Support Services not made by Provider, or (d) breach of this Agreement and/or any Order Form (each an “Excluded Claim”).
7.2. Provider Indemnity
Provider will indemnify, defend and hold harmless Client, its employees, principals and agents (each, a “Client Indemnitee”), from and against any Losses arising out of or resulting from any Claim that the GrowthLoop Technology, when used in accordance with the terms of this Agreement and the applicable Order Form, infringes or misappropriates such third party’s US intellectual property right. In the event of any such infringement Claim, GrowthLoop may, at its option: (i) obtain the right to permit Client to continue using the GrowthLoop Technology, (ii) modify or replace the relevant portion(s) of the GrowthLoop Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate the applicable Order Form as to the infringing GrowthLoop Technology and provide a pro rata refund of any prepaid, unused Fees for such infringing GrowthLoop Technology. Provider’s indemnification obligations will not apply to the extent that the alleged infringement or misappropriation arises from any Claim(s) for which Client is obligated to indemnify Provider hereunder, including, without limitation, any Excluded Claim. This Section sets forth any Client Indemnitee’s sole remedy and Provider’s sole liability and obligation for any actual, threatened, or alleged claims that the GrowthLoop Technology infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
7.3. Indemnity Process
The party seeking indemnification (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing following receipt of notice of any Claim in respect of which indemnity may be sought under such section, which notice shall assert such Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). The failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. The Indemnified Party shall not agree to any settlement of a Claim and may participate in such Claim at its own expense. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or involves an admission of fault or wrongdoing by the Indemnified Party.
8. Term and Termination
8.1. Term
This Agreement shall become effective on the Effective Date and shall remain effective until terminated in accordance with this Section (the “Term”). Each Order Form shall become effective on the effective date set forth in such Order Form (which shall be the same date as the Effective Date if no date is specified) and shall remain effective for the term set forth therein (the “Initial Order Term”). Thereafter, each Order Form shall extend automatically for successive terms equal to the Initial Order Term (each successive term, an “Extension Order Term”), unless either Party provides the other Party with written notice of nonrenewal at least sixty (60) days prior to the expiration of the Initial Term or the then-current Extension Term. Termination of an Order Form shall not affect this Agreement.
8.2. Termination
In the event that the other Party (i) has breached any of the warranties or material provisions contained in an Order Form or this Agreement (including Client’s obligation to pay Fees when due) and failed to cure such breach within thirty (30) days following receipt of written notice thereof by the non-breaching Party (which notice shall set forth a description of the breach); or (ii) becomes insolvent, ceases conducting business in the ordinary course, makes a general assignment for the benefit of creditors, or becomes subject to voluntary or involuntary bankruptcy or liquidation proceedings; then the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such non-breaching Party, will be entitled to terminate this Agreement or such Order by providing written notice of such termination to the Party committing the breach. Without limiting the foregoing, in the event of Provider’s termination of this Agreement and/or any Order Form for Client’s breach, the due dates of all outstanding invoices will automatically accelerate so they become due and payable on the effective date of such termination. For the avoidance of doubt, except as expressly stated herein or in the applicable Order Form, neither Party may terminate an Order Form for convenience prior to the end of its then‑current term.
8.3 Effect of Termination
Upon expiration or earlier termination of this Agreement and/or any Order Form, Client shall immediately discontinue all use of the GrowthLoop Technology and Support Services, and Client shall pay Provider all Fees accrued through the effective date of termination under each terminated Order Form within thirty (30) days of Provider’s invoice therefor. Payment of this final invoice shall not bar any remedy, legal equitable, or otherwise available to Provider, and no expiration or termination will affect Client obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
9. Miscellaneous
9.1. Legal Notices
All notices, requests, demands, claims, and other communications hereunder will be in writing and shall be deemed duly given (a) when delivered personally to the recipient, upon receipt, (b) when sent by electronic mail or facsimile, on the date of transmission to such recipient, if received during normal business hours and, if not, the next business day after transmission, (c) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (d) three (3) business days after being mailed and addressed to the recipient as set forth on the signature page hereto. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth. Notices for Client should be sent to the Client Legal Address listed in an Order Form. Notices for Provider should be sent to 76 Summit Road, Riverside, CT 06878, ATTN: Legal, with a copy to legal@growthloop.com.
9.2 Force Majeure
Except with regard to Client’s obligation to timely pay all Fees, no Party to this Agreement shall be liable to the other by reason of any failure or delay in performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the reasonable control and without the fault of such Party. Such causes may include, but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, freight embargoes, widespread unavailability of energy resources, riots or war, or any unusually severe weather conditions or similar causes beyond the reasonable control and without the fault of any such Party. In the event of any force majeure occurrence, the disabled Party shall promptly and in writing advise the other Party if it is unable to perform due to a force majeure event, the expected duration of such inability to perform, and of any developments (or changes therein) that appear likely to affect the ability of the disabled Party to perform any of its obligations in whole or in part.
9.3. Waivers
No waiver by either Party of any breach or default hereunder by the other shall operate as a waiver of any other breach or default or of a similar breach or default on a future occasion. No waiver of any term or condition hereof by either Party shall be effective unless the same shall be in writing and signed by both Parties.
9.4. Severability
In the event that any provision of this Agreement (other than a provision which goes to the essence of the consideration for this Agreement) is declared invalid, unenforceable or void, to any extent, by a court of competent jurisdiction, the remainder of this Agreement and the application thereof shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
9.5. Injunctive Relief
In the event of the breach or a threatened breach by a Party of any of the provisions of Sections 3, 4, or 5 of this Agreement, the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such Party, will be entitled to seek specific performance and/or injunctive or other equitable relief against the breach or threatened breach from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security).
9.6. Governing Law
This Agreement and the Order Form(s) will be governed by and construed in accordance with the laws of the State of Delaware without application of its choice of law provisions.
9.7. Dispute Resolution; Arbitration
The Parties will first attempt in good faith to promptly resolve any dispute arising under this Agreement by good faith negotiation by senior executives. If such dispute has not been resolved within thirty (30) days of a Party’s initiation of negotiations, the dispute shall be submitted at the request of such Party to final and binding arbitration before a single arbitrator. Such arbitration shall be held in Wilmington, Delaware, and in accordance with the then current rules of the American Arbitration Association applicable to commercial disputes. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on the Parties. Judgment may be entered into the arbitrator’s decision in any court of competent jurisdiction.
9.8. Export Regulations
Client understands that Provider is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Client warrants that it will comply in all respect with the export and re-export restrictions applicable to the GrowthLoop Technology and Support Services. Client agrees to indemnify and hold Provider harmless from any loss, damages, liability, or expenses incurred by Provider as a result of Client’s failure to comply with any export regulations or restrictions.
9.9. Modification and Waiver
This Agreement and the Order Form(s) may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party.
9.10. Entire Agreement
This Agreement and each Order Form entered into hereunder shall supersede all prior agreements, communications, representations, and understandings, either oral or written, between Provider and Client with respect to the subject matter contained herein. All terms and conditions on any Client-issued purchase order, order acknowledgment, or other documents in connection with the reporting services herein shall be deemed deleted and of no force or effect.
9.11. Assignment
Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Client without Provider’s prior written consent. If Client is acquired by another entity, person or business, whether by merger, consolidation, reorganization, purchase of assets, or otherwise (a “Change of Control”), the rights granted to Client hereunder will extend only to the business of Client operated prior to the Change of Control, and the GrowthLoop Technology may not be used with respect to the business of the acquirer entity or business without the prior written consent of Provider, which consent may be withheld in its sole discretion. Provider may freely assign this Agreement and all rights hereunder Any purported assignment in violation of this Agreement is null and void. This Agreement shall inure to the benefit of each party and its permitted successors and assigns.
9.12. Counterparts
This Agreement may be executed in any number of counterparts, including PDF format and any electronic signature, each of which shall be an original but all of which together shall constitute one and the same instrument.
9.13. Construction
This Agreement shall be construed as if drafted jointly by the Parties and no presumption shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
9.14. Relationship of Parties
Provider is an independent contractor of Client, and Client hereby acknowledges that Provider may engage subcontractors to assist with its performance hereunder. Nothing herein shall be construed as creating a joint venture, partnership, or similar relationship.
9.15. Survival
Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of this Agreement shall survive, including confidentiality provisions.
9.16. Successors and Third Party Beneficiaries
This Agreement shall inure to the benefit of Provider and Client and any successors or assigns of Provider and Client. Except with respect to Provider Indemnitees and Client Indemnitees, no other third party shall have any rights hereunder.
