Effective: September 5th , 2017
Terms of Service
Welcome to Growbots! These Terms of Service (these “Terms” or the “Agreement“) are important and govern your use and access of our websites at https://www.growbots.com/ and https://dashboard.growbots.com/s/ (the “Website”), our app (the “App”) and the products and services we provide through these mediums (collectively referred to as the “Services”).
1. Acceptance of the Terms of Service
2. Changes to the Terms of Service
Growbots may amend the Terms related to the Services, from time to time, at its sole discretion. The date that the Terms of Service was last revised is identified at the top of the page. You are responsible for reviewing any updated Terms of Service we may send to you and contacting us to update your e-mail address. Your continued use of our Services represent that you agree to be bound by all the terms in the revised terms of services.
3. Our Services
3.1. In general
Growbots provides Services and support to Customers conducting online marketing. In general, our Services will perform materially as described in the Documentation (defined below) when used in accordance with our instructions. To the extent within our reasonable control, we will not materially decrease the functionality of our Services during a subscription term, and we will not knowingly introduce any Malicious Code (defined below) into your systems.
Growbots will use all commercially reasonable effort to make the Services available to you pursuant to these Terms, provide our standard support for the Services to you at no additional charge, and provide you with online Services 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay or denial of service attack.
Our Services can only be purchased by through subscriptions. Additional subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of the subscription term remaining at the time the additional subscriptions are added, and all additional subscriptions will terminate on the same date as the underlying subscriptions. Services are subject to usage limits as set forth in the Documentation (defined below) and these Terms, including, for example, the quantities specified in Order Forms. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, we may require that you order additional quantities of the applicable Services and/or pay any invoice for excess usage in accordance with Section 5 (Payment for Services). Unless otherwise specified, unlimited access to our leads database means that users may submit unlimited queries to the leads database, each of which generates up to 200 leads, with the possibility of repeated queries.
BY REGISTERING AN ACCOUNT WITH US (“ACCOUNT”) OR USING OUR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT GROWBOTS DOES NOT GUARANTEE QUALITY, ACCURACY, SAFETY AND LEGALITY OF THE INFORMATION IN OUR DATABASE. YOU ARE ADVISED TO SEEK THE LEGAL ADVICE FROM A LICENSED PRACTITIONER TO EVALUATE THE SUITABILITY OF OUR SERVICES FOR YOUR BUSINESS PRIOR TO USING OUR SERVICES.
3.2. Beta Services
From time to time, we may invite you to try our beta Services (“Beta Services”) at no charge. You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under the Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date, or the date that a version of the Beta Services becomes generally available or the date that we elect (in our sole discretion) to discontinue the Beta Services. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. Third Party Applications
4.1. Acquisition of Third Party Applications
The Services may be compatible or useful in connection with a third party applications or services, including, for example, other applications and implementation and other consulting services. Any acquisition by you of such other third party applications or services, and any exchange of data between you and any other provider, is solely between you and the applicable other provider.
WE DO NOT WARRANT OR SUPPORT THIRD PARTY APPLICATIONS OR OTHER SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY US AS “CERTIFIED” OR OTHERWISE.
4.2. Integration with Third Party Applications
The Services may contain features designed to interoperate with third party applications (such as Google OAuth and salesforce.com). To use such features, you may be required to obtain access to third party applications from their providers, and may be required to grant us access to your account(s) on the other applications. If the provider of other application ceases to make the third party applications available for interoperation with the corresponding Service features on reasonable terms, we may cease providing those Service features without entitling you to any refund, credit, or other compensation.
5. Payment for Services
5.1. Payment In General
Every Customer shall be responsible for timely payment of all fees specified on our invoices in U.S. dollars and other obligations set forth in the physical or electronic order form, including any addenda and supplements thereto (“Order Form”). By using our Services, you acknowledge and agree that our fees are based on Services purchase rather than actual usage; that our fees cannot be cancelled once charged and all fees paid are non-refundable; and that all payments to subscription services must be paid in full, in advance, and in accordance with the terms of the Order Form. You further acknowledge and agree that during the term of any subscription, the subscription fee cannot be reduced, by for example, reducing the amount of Service usage.
By using our Services, you acknowledge and agree that our 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, as “Taxes”). You are solely responsible for paying all Taxes associated with the use of our Services. If you are exempt from certain Taxes, you shall provide us with the valid Tax exemption documentation.
5.3. Late Payments
In the event that your credit card was declined, your check was bounced, or your payment was not timely made for any or no reason, we will automatically charge and you shall be automatically responsible for all reasonable surcharges, including but not limited to any administrative fees, processing fees and fines. In addition, if any of your payment is 20 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may choose, at our sole discretion and without limiting our other rights and remedies, accelerate your unpaid fee obligations to be immediately due. In addition, we reserve our right to suspend, terminate, or delete your Account upon a 10 day prior notice.
This Section 5.3 (Late Payments) does not apply to any payment or invoices under a good faith dispute and/or resolution.
5.4. Future Functionality.
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
6. Conditions for Using Our Services
The Services are not directed to or intended for use by anyone under the age of 18. By using our Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from our Services, or engaged in any activity that could result in suspension or removal from our Services, (d) do not have more than one Account, (e) have all right, power and authority to enter into and perform this Agreement; (f) the execution of this Agreement and performance of this Agreement will not violate any other agreement to which you are party; (g) this Agreement constitutes the legal, valid and binding obligation to you; and (h) you shall perform this Agreement in accordance with all applicable laws, including any laws, rules and regulations related to unsolicited commercial communications.
6.2. Representations and Warranties
You acknowledge and agree that your use of our Services is subject to your adherence certain documentations, such as the Order Form and certain service descriptions, pricing information and user guides available on our Website, as amended and/or updated from time to time (“Documentation”), and incorporated herein by reference.
You further acknowledge, agree, represent and warrant that:
- you shall not use our Service for any unlawful purpose;
- you shall not infringe rights of Growbots or a third party, including any property, intellectual property, privacy rights of Growbots or a third party;
- you shall not use our Services in violation of any of the Terms herein;
- you shall not use our Services in violation of your contractual or other legal obligations;
- you shall not commit any unlawful acts using our services, including any infringing, libelous, tortious acts;
- you shall not “stalk” or otherwise harass any person;
- you shall not make false representations, including about your identity or affiliations;
- you shall not use any software, program, file, scripts, agents, or any other code, including, for example, viruses, worms, time bombs and Trojan horses, (“Malicious Code”) that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
- you shall not engage in any conduct that interferes with our Website, App or Services, or restricts or inhibits any other person from using or enjoying the same, or which, in Growbots’ sole judgment, exposes Growbots or any of its officers, directors, employees or agents to any liability or detriment of any type;
- you shall not copy any part of our Service including any feature, function or user interface thereof;
- you shall not use or attempt to use reverse engineer to reconstruct any of Growbots’ Services;
- you shall not harvest or otherwise collect any data, information or content from our Website or App, including by using manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any page of the Website or App to copy, obtain, propagate, distribute or misappropriate any content;
- you shall not permit any direct or indirect access of our Services that circumvents or attempts to circumvent a contractual usage limit;
- you shall not access our Services with the intent to build a competitive product or service;
- you shall not frame or mirror any part of our Service, other than framing on your own intranets or otherwise for your own internal business purposes;
- you shall not engage in any activity that can reasonably cause injury, loss or damage to a Growbots or third party;
- you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction; and
- you shall notify Growbots regarding (i) any illegal, suspicious, or fraudulent activity, (ii) any security or data breaches, (iii) any activity that violates these Terms, (iv) any misrepresentations, errors, or inaccuracies you discover, or (v) any illegal or improper bribe, kickback, payment give or thing of value from any of our employees or agents in connection with this Agreement.
You acknowledge and agree you are responsible for your own acts and omissions. Growbots reserves the right to delete or disable access to any Account for any or no reason.
By registering an account with Growbots (an “Account”) or using our Services, you represent and warrant that you shall:
- provide accurate, truthful, current and complete information, whether on our Services or to a third party;
- maintain and promptly update the information, including any billing and contact information;
- maintain the security of your password, including not disclosing your password to another;
- not permit anyone else to access or otherwise use your Account;
- not access or otherwise use, or attempt to access or use, an Account of another other than your own; and
- immediately notify us if you discover or otherwise suspect any security breaches related to the Website, the App, your Account, or our Services.
Notwithstanding the aforementioned, you may reassign your Account to a new individual when you no longer require ongoing use of the Service.
7. Intellectual Properties
7.1. Growbots’ Intellectual Properties
(a) Ownership of Growbots Intellectual Properties
Unless otherwise indicated in writing by us, the Website, App, software, code, database, lists and all content and other materials contained therein, including, without limitation, the Growbots logo, trademarks, trade names, service marks, slogans and all designs, text, graphics, pictures, information, data, software, sound files (as described herein), other files and the selection and arrangement thereof (collectively, the “Content”) are the proprietary property of Growbots or our licensors, as applicable, and are protected by U.S. and international copyright laws. No rights to the Contents are granted to you hereunder other than as expressly set forth herein.
(b) Limited License
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Services in connection with your marketing campaigns. However, such license is subject to these Terms and does not include any right to:
- sell, resell license, sublicense, distribute, rent or lease the Services and the Contents;
- use the Services and the Contents for commercial purposes unrelated to your marketing campaigns;
- distribute, publicly perform or publicly display any Content;
- modify or otherwise make any derivative uses of the Services or Content, or any portion thereof;
- use any data mining, robots or similar data gathering or extraction methods;
- download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us; and
- use the Services or Content other than for their intended purposes, which shall be limited to use in furtherance of the Services.
Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Growbots or any third party, whether by estoppel, implication or otherwise.
(c) Federal Government End Use
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.2. Customer Content
Our Services permit electronic data, material, and information to be created, submitted, received, processed, collected, transmitted, and stored by or for you through our Services and/ or a third party application, (collectively, “Customer Content”). By using our Services, represent, warrant, acknowledge and agree not to create, submit, process, transmit or store any of the following:
- Customer Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Customer Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- Customer Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Customer Content that contains material misrepresentations;
- Customer Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Customer Content that impersonates, or misrepresents your affiliation with, any person or entity;
- Customer Content that references or depicts Growbots or our Services but fails to disclose a material connection to us, if you have one;
- Customer Content that contains any private or personal information of a third party without such third party’s consent;
- Customer Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; and
- Customer Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the our Services, or that may expose Growbots or others to any harm or liability of any type.
We are not responsible or liable for any Customer Content. Although we have no obligation to screen, edit or monitor Customer Content, we reserve the right, and have absolute discretion, to remove Customer Content stored on our Services at any time and for any reason. You are solely responsible for creating backup copies of and replacing any Customer Content at your sole cost and expense.
We do not claim any ownership interest in your Customer Content. However, by creating, submitting, receiving, processing, collecting, transmitting, and storing Customer Content on or through our Services you hereby grant Growbots a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly and display your Customer Content to provide our Services in accordance with these Terms.
By using our Services, represent and warrant that
- you own and control all of the rights to the Customer Content or you otherwise have all necessary rights to use such Customer Content;
- you authorize Growbots to use such Customer Content for the purposes described in these Terms;
- the Customer Content is accurate and not misleading or harmful in any manner;
- the Customer Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
7.3. Feedback and Suggestions
You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to make, have made, use, distribute, modify, make derivative works of, incorporate into the Services and otherwise exploit in any manner any suggestion, enhancement request, recommendation, correction or other feedback provided by you or users relating to the operation of the Services or any of our products or services.
7.4. Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Services to or terminating the Accounts of Customers, in appropriate circumstances or in our sole discretion who infringe the intellectual property rights of another. If you believe that anything on our Services infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
550 Montgomery St. Suite 925.
San Francisco, CA. 94111.
If a material you have posted to our Services was removed or disabled in error, you may file a counter notice pursuant to the Digital Millennium Copyright Act.
Please consult the Digital Millennium Copyright Act, for example at 17 U.S.C. § 512, for the requirements of a proper notification.
You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Confidential Information
“Confidential Information” means all information, whether oral or written, disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information excludes any information that, without breach of any obligation owed to the Disclosing Party or any other third party,
- is public or generally known to the public;
- was known to the Receiving Party prior a disclosure from the Disclosing Party;
- is received from a third party; or
- was independently developed by the Receiving Party,
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but not less than reasonable care, to protect the Confidential Information of the Disclosing Party. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose these Terms to any one without the other party’s prior written consent, except when the disclosure is made to the party’s affiliates, legal counsel and accountants on a need to know basis. Notwithstanding the aformentioned, the Receiving Party may disclose any Confidential Information to the extent compelled by law, provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted under law, and provide reasonable assistance, to the extent feasible and practical, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
9. Term and termination
9.1. Term of Agreement
This Agreement is effective on the date you first accept it pursuant to Section 1 of these Terms and continues until all subscriptions hereunder have expired or have been terminated.
9.2. Term of Purchased Subscriptions
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in the Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter) unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will be as published on the Website at the time that the subscription renews. All Services (including emails sent to leads on behalf of the Customer) will terminate upon termination of a subscription.
A party may terminate the Agreement:
- for cause of a material breach upon 30 days written notice to the other party and if such breach remains uncured at the expiration of such period;
- if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. Refund or Payment upon Termination
If the Agreement is terminated by you in accordance with Section 9.3 (Termination) of these terms, we will refund we have collected for any period after the effective date of termination. If the Agreement is terminated by us in accordance with Section 9.3 (Termination), you shall pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.5. Customer Data Portability and Deletion
Upon a written request made within 30 days after the effective date of a termination or expiration of the Agreement under these Terms, we will make the Customer Data associated with your Account available to you for export or download. We will have no obligation to maintain or provide any Customer Data to you 30 day after the termination or expiration of this Agreement, and may continue to use the Customer Data in aggregate form.
9.6. Surviving Provisions
Sections 5 (Payment for Services), 7 (Intellectual Properties), 10 (General Disclaimers), 11 (Limitation of Liability and Release), 12 (Indemnification), 9.4 (Refund or Payment upon Termination), 9.5 (Customer Data Portability and Deletion), 13 (Dispute Resolution, Governing Law, Venue, Jurisdiction), 14 (Miscellaneous).
10. General Disclaimers
GROWBOTS IS ONLY RESPONSIBLE FOR PROVIDING THE WEBSITE AND THE SERVICES UNDER THE TERMS OF THIS AGREEMENT. GROWBOTS SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY COMMUNICATIONS CREATED, STORED, OR TRANSMITTED THROUGH THE SERVICES.
GROWBOTS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF OUR DATABASE OR LISTS. UNLESS EXPRESSLY PROVIDED OTHERWISE HEREIN, ALL SERVICES AND BETA SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS” BASIS, WITH ALL FAULTS AND, WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, (1) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, AS TO THE WEBSITE, APP, THEIR CONTENT AND MATERIALS AND SERVICES; (2) THAT THE WEBSITE, CONTENT, MATERIALS, AND SERVICES, WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE ACCURATE, RELIABLE, AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (3) WITH RESPECT TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE WEBSITE, CONTENT, MATERIALS, SERVICES, AND LISTINGS. GROWBOTS FURTHER DISCLAIMS ANY OTHER WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE WEBSITE, CONTENT, MATERIALS OR SERVICES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
11. Limitation of Liability and Release
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM GROWBOTS PARTIES ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE OR EMOTIONAL DISTRESS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, FOR ANY HARM OR DAMAGE CAUSED BY, ARISING FROM, OR RELATING TO THE USE OF THE WEBSITE, APP, THEIR CONTENTS, OR OUR SERVICES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL GROWBOTS’ TOTAL LIABILITY TO YOU FROM A SINGLE INCIDENT EXCEED THE AMOUNTS OF PAYMENTS WE RECEIVE FROM YOU IN THE 12 MONTHS PRECEDING THE INCIDENT. IN NO EVENT WILL GROWBOTS’ TOTAL AGGREGATE LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF PAYMENTS WE RECEIVE FROM YOU. YOUR EXCLUSIVE REMEDIES IN THE EVENT THAT GROWBOTS BREACHED ANY OF ITS WARRANTIES TO YOU HEREIN, ARE (1) TERMINATION AS DESCRIBED UNDER SECTION 9.3 (TERMINATION) OR (2) REFUND OF PAYMENT AS DESCRIBED UNDER SECTION 9.4 (REFUND OR PAYMENT UPON TERMINATION).
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
THE PROVISIONS OF THIS SECTION 11 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GROWBOTS.
12.1. Indemnification by Us
WE WILL DEFEND YOU AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST YOU BY A THIRD PARTY ALLEGING THAT THE TECHNOLOGY UNDERLYING OUR SERVICES INFRINGES OR MISAPPROPRIATES SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS (A “CLAIM AGAINST YOU”) AND WILL INDEMNIFY YOU FROM ANY DAMAGES, ATTORNEY FEES AND COSTS FINALLY AWARDED AGAINST YOU AS A RESULT OF, OR FOR AMOUNTS PAID BY YOU UNDER A COURTAPPROVED SETTLEMENT OF, A CLAIM AGAINST YOU, PROVIDED THAT (1) YOU PROMPTLY GIVE US WRITTEN NOTICE OF THE CLAIM AGAINST YOU; (2) YOU GIVE US SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM AGAINST YOU (EXCEPT THAT WE MAY NOT SETTLE ANY CLAIM AGAINST YOU UNLESS IT UNCONDITIONALLY RELEASES YOU OF ALL LIABILITY); (3) YOU GIVE US ALL REASONABLE ASSISTANCE, AT OUR EXPENSE; AND (4) THE CLAIM AGAINST YOU DOES NOT RELATE TO CUSTOMER DATA OR ANY LEADS OR LEAD DATA GENERATED BY OUR SERVICES.
IN THE EVENT OF A DISPUTE, WE RESERVE THE RIGHT TO, AT OUR SOLE DISCRETION, AND AT NO COST TO YOU (1) MODIFY OUR SERVICES; (2) OBTAIN A LICENSE FOR YOUR CONTINUED USE OF THE SERVICE IN ACCORDANCE WITH THE AGREEMENT; AND (3) TERMINATE YOUR SUBSCRIPTIONS FOR THAT SERVICE UPON THIRTY (30) DAYS WRITTEN NOTICE AND REFUND YOU ANY PREPAID FEES COVERING THE REMAINDER OF THE TERM OF THE TERMINATED SUBSCRIPTIONS.
12.2. Indemnification by You
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS GROWBOTS, AND OUR PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, CONSULTANTS, EQUITY HOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY, THE “GROWBOTS PARTIES”) AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST GROWBOTS PARTIES BY A THIRD PARTY ALLEGING YOUR CUSTOMER DATA, YOUR USE AND DISCLOSURE OF ANY DATA GENERATED FROM OUR SERVICES (INCLUDING ANY LEADS OR LEAD DATA), OR YOUR USE OF OUR SERVICES, INFRINGES OR MISAPPROPRIATES A THIRD PARTY RIGHT, VIOLATES YOUR CONTRACTUAL OR LEGAL OBLIGATIONS, OR VIOLATES ANY APPLICABLE LAW, RULES, OR REGULATION, EXCEPT TO THE EXTENT SUCH INDEMNIFICATION IS PROHIBITED BY LAW (A “CLAIM AGAINST US”). YOU WILL INDEMNIFY, DEFEND AND HOLD GROWBOTS PARTIES HARMLESS FROM ANY CLAIM DAMAGES, AWARDS, JUDGMENTS, LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, INTEREST, FEES, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) AND COSTS (INCLUDING, WITHOUT LIMITATION, COURT COSTS, COSTS OF SETTLEMENT AND COSTS OF PURSUING INDEMNIFICATION AND INSURANCE), OF EVERY KIND AND NATURE WHATSOEVER IN CONNECTION TO A CLAIM AGAINST US, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, OR SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, PROVIDED THAT (1) WE PROMPTLY GIVE YOU WRITTEN NOTICE OF THE CLAIM AGAINST US; (2) WE GIVE YOU SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM AGAINST US; (EXCEPT THAT YOU SHALL NOT SETTLE ANY CLAIM AGAINST US UNLESS IT UNCONDITIONALLY RELEASES US OF ALL LIABILITY); AND (3) WE GIVE YOU ALL REASONABLE ASSISTANCE, AT YOUR EXPENSE.
12.3. Exclusive Remedy
THIS SECTION 12 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION 12.
13. Dispute Resolution, Governing Law, Venue, Jurisdiction
Each party agrees to the governing law of the State of California without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in San Francisco, California.
Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be deemed to have been given upon:
- personal delivery;
- the second business day after mailing; or
- the first business day after sending by email.
Notwithstanding the aforementioned, email shall not be sufficient for notices of termination or indemnification purposes.
All notices, permissions and approvals to Growbots pursuant to this Agreement shall be delivered to:
Attn: Grzegorz Pietruszyński, Chief Executive Officer
814 Mission Street San Francisco, CA 94103 USA
All notices, permissions and approvals to the Customer pursuant to this Agreement shall be delivered to the address or e-mail address on the record. All billing-related notices will be sent to the relevant billing contact designated by you. All other notices shall be sent to the relevant service system administrator designated by you.
It is the responsibility of the Customer to update its contact information with Growbots. Growbots is not responsible for any correspondences that failed to reach the Customer due to a change in address or e-mail address not reported to Growbots.
14.2. Entire Agreement and Order of Precedence
The Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other ordering documentation that You may provide (excluding Order Forms) is void. In the event of any conflict or inconsistency between the Order Form and these Terms of Service, the Order Form shall control and govern.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign the Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
14.5. No Waiver of Rights
No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
14.6. No Third Party Beneficiary
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
14.7. International Use
If you gain access to the Services from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Services or Site Content in violation of U.S. export laws or regulations.
14.8. Export Compliance
Our Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit any one to access or use our Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
14.9. Relationship of the Parties.
During the terms of the Agreement, the parties are deemed independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.