SERVICE AGREEMENT TERMS AND CONDITIONS
This Master Agreement establishes the terms and conditions applicable to Growth99’s ongoing provision of project development services to Customer, which will be further defined and governed by one or more additional agreements, statements of work, Service Order(s), Invoice, and addendums to this Master Agreement.
1.1. Services and Right of Access. Subject to the provisions of this Agreement, Growth99 will provide the Services identified in the Service Order. In connection with the Services, and subject to the limitations contained herein, Growth99 grants to Customer a nonexclusive, nontransferable right to access the tools and applications necessary and applicable to the particular Services enumerated in the Service Order. Such use rights shall be limited to those rights as may be necessary for Customer’s use and enjoyment of the Services. Unless otherwise specified by Growth99 in writing, any and all rights granted by Growth99 to Customer shall only apply to Customer and not Customer’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.
1.2. Access and Account Setup. Upon execution of a Service Order, Growth99 will provide Customer such account access and login credentials (the “Customer Credentials”) necessary to the access and utilization of the Services maintained by Growth99, which include Basecamp, Growth99+, Review and Reputation Management Tool, and Growth99 University. Access can vary based on products purchased. Growth99 reserves the right to deny access to Customer’s website and/or Services for any reason. Growth99 disclaims any responsibility for acts or omissions of Customer or any other person accessing the Services using the Customer Credentials. If an error results from an act or omission of Customer or any other person accessing the Services using the Customer Credentials, Growth99 may take such remedial action as it considers appropriate under the circumstances, which may include effecting corrective measures, where and to the extent reasonably necessary to place the Customer in the position (or its equivalent) it would have been had the error not occurred. The Customer will be responsible for losses arising from its errors, in accordance with the terms of this Agreement. Growth99 reserves the right to charge Customer additional fees reasonably set by Growth99 to correct any errors arising from Customer or any other person accessing the Services using the Customer Credentials. From time to time, Growth99 personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. Domain Migration will be migrated to Growth99’s AWS servers managed services to improve the performance, speed and reliability.
1.3. Customer Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined below). All Content created through or submitted to the Services by Customer (collectively “Customer Content”) is the sole responsibility of Customer and Customer hereby represents and warrants to Growth99 that any and all elements of the Customer Content that is furnished to Growth99 in connection with the Services, is owned by Customer or the Customer has the necessary authorization from the rightful owner of same to use such elements. Customer acknowledges and agrees that Growth99 will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants Growth99 a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to Customer.
1.4. Use Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Growth99’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) copy, gather, distribute, compile, manufacture, adapt, create derivative works of, translate, or otherwise modify any aspect of the Services; (c) decompile, disassemble, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (e) interfere or attempt to interfere with the functionality or operation of the Services or any activities conducted in connection therewith, (f) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (g) permit any third party to engage in any of the foregoing proscribed acts.
1.5. Service Modifications. Should Customer want to modify or discontinue any part of the Services, including but not limited to any add-on packages, Customer must provide thirty (30) days prior written notice to Growth99. Such modifications will not take effect until the next billing cycle following the notice by Customer. Growth99 disclaims any responsibility for such modification or discontinuation which materially reduces the functionality of Services and Customer will be responsible for losses arising from its modification or discontinuation, in accordance with this agreement.
1.5.1 Packaging Upgrades. Should Customer want to change the Service Order to include additional services and/or upgrade the existing Service Order, Customer may propose to Growth99 an amendment to the Service Order with the desired additional services or upgrades. However, Customer does not have the right to downgrade the existing Service Order during the initial term of the agreement defined in 9.1 (Term) and Growth99 reserves the right to refuse such downgrades. In addition, should Customer decide to upgrade, Customer agrees to be bound by the new and/or additional terms and conditions of the upgrade order.
1.5.2. Changes to Custom Layout. If, after the Growth99 Custom Layout (the website layout chosen by Customer during the execution of this Agreement) and construction of the website has been approved and initiated but prior to the substantial completion of the applicable construction of the website, Customer shall request to change the Growth99 Custom Layout, Growth99, in its sole discretion, shall have the right to charge Customer a reasonable fee for changes requested by Customer, and to reset the completion date based on the extent of the changes.
1.5.3. Lead Generation (only applicable to those customers who have active Lead Generation). In the event Customer opts for a Lead Generation package, Growth99 will generate Leads for Customer in accordance with the terms set out in this Agreement. “Leads” means the name, email address, and telephone number of any prospective client. Growth99 will run Google and/or Facebook ad campaigns to specifically target potential Leads. Growth99 requires a minimum of $2,000.00 per month for each channel (Google and Facebook), a platform fee of 25%, and a 90-day minimum commitment at this minimum level. Growth99 will keep track of the quality of Leads and provide technical support to ensure high-quality standards, including but not limited to adjusting ad spend and channel allocation throughout the 90-day period provided ad spend doesn’t fall under minimum requirements. These policies are both put in place to help ad accounts have enough spend/time to ramp up and drive quality lead results to the business. However, Growth99 does not guarantee that all of the Leads generated by ad campaigns can be converted by Customer. Growth99 will create and customize the first landing page at no additional charge. Customer will then incur a $500 fee per additional landing page. Growth99 will further create and customize the first three (3) graphics at no additional charge. Customer will then incur a $100 fee per additional graphic.
1.5.4. Growth99+ Software SMS + Email. Included in Customer’s Growth99+ Software SMS + Email package is 500 out of the box SMS and 500 out of the box Email per month. Should Customer wish to upgrade the Service Order to include additional Growth99+ Software SMS + Email allotment in excess of 500, Customer may do so for additional fees. Customer will be responsible for notifying Growth99 of such intent to exceed the 500 SMS + Email allotment by contacting Growth99 Sales Team at [email protected]
1.6. Service Availability. Growth99 will use commercially reasonable efforts to maintain and provide the Services, subject to downtimes resulting from maintenance, repairs and upgrades. Prior to any such known or anticipated downtime, Growth99 will attempt to notify Customer electronically. Notwithstanding the foregoing, Growth99 will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Content (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Growth99’s facilities or control.
1.7. Service Support. Growth99 will provide Customer with email or, at Growth99’s option, telephonic support for Customer’s use of the Service during the regular business hours of Growth99. Customer agrees that Growth99 is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware.
1.7.1. Standard Support. Growth99 will provide Customer with Standard Support at no additional cost
1.7.2. VIP Support. Customer has the option to upgrade to VIP Support to expedite support response time and turnaround time. Should Customer wish to elect for VIP Support, Customer will be responsible for notifying Growth99 Sales Team by contacting [email protected] Additional monthly fees may apply. .
2. OWNERSHIP & PROPRIETARY RIGHTS.
2.1. By Growth99.
2.1.1. Existing Tools/Templates/Know-How.Notwithstanding any provision to the contrary, Growth99 is, and shall remain at all times, the owner of all (i) know-how discovered, produced, developed or used at any time by Growth99, and (ii) all software tools, templates, reusable and/or generic codes, and related materials developed at any time by Growth99 generally for Growth99’s business (collectively, “Growth99’s Existing IP”).
2.1.2. Work Product. Until such time that Growth99 is paid in full for its Services under a relevant Service Order, Growth99 shall remain the owner and/or sole licensor of all work product and deliverables developed for Customer under this Agreement and the relevant Service Order (“Work Product”). Upon Growth99’s receipt of full payment for the relevant Work Product, Growth99 hereby permanently assigns and transfers to Customer all of Growth99’s right, title and interest in the Work Product. The parties understand and agree that to the extent that Growth99’s Existing IP, or any Third Party Application, is incorporated into the Work Product, Customer is hereby granted a non-exclusive, unlimited and perpetual right to us Growth99’s Existing IP and such Third Party Application in conjunction with the Work Product, provided that Customer does not remove Growth99’s Existing IP or the Third Party Application from the Work Product or isolate Growth99’s Existing IP or the Third Party Application from the Work Product and make any commercial use of such materials.
2.1.3.Promotion Rights. The parties agree that Growth99 is hereby granted a non-exclusive, perpetual, worldwide right to display and incorporate portions of the Work Product in, or as part of, Growth99’s professional portfolio, as that portfolio may be offered or displayed by Growth99 in any medium, media or format desired by Growth99 (“Right of Promotion”). This Right of Promotion shall also include the right (a) to submit the Work Product on Growth99’s behalf to various industry competitions relevant to Growth99’s business and/or the digital marketing/advertising industry in general; provided, however, that Customer is referenced in any submission as the current owner of the Work Product, and (b) to use Customer’s name, trademark, and biographical information for purposes of inclusion in Growth99’s professional portfolio as described herein. Other than the Right of Promotion described herein, Growth99 shall not use the Work Product (post-transfer to Customer) for any other purpose.
2.2. By Customer. Customer is and shall remain the owner and/or licensor of all Customer Content. Customer hereby grants to Growth99 a non-exclusive, worldwide right to use the Customer Content for the purpose of performing the Services and producing the Work Product, and for the purpose of using the Customer Content as part of Growth99’s Right of Promotion.
2.2.1. General. Unless specifically stated in this Agreement or Service Order, nothing herein grants any license to either party under any patents or copyrights of the other party, and each party reserves all rights in its ideas, concepts, know-how, methodologies, processes, technologies, algorithms, techniques and other intellectual property of every kind and nature.
2.3. Software License. Subject to the terms of this Agreement, Growth99 grants to Customer a personal, non-exclusive, non-assignable and non-transferable license to use and display the software provided by or on behalf of Growth99 (including any updates) only for the purpose of accessing the Growth99+ Service, including but not limited to the AI Chatbot, Virtual Consultation Tool, Fillable Forms, Review and Reputation Management Tool, and Online Booking (“Software”), on any computer(s) on which you are the primary user or which you are authorized to use.
3.1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the Services, the Platform, and the API, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Customer through the Services (other than Customer Content) shall be considered Growth99’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
3.2. Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
3.3. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
4. PAYMENTS & FEES.
4.1. Payment. Customer shall pay for all services and fees pursuant to the fee schedule listed in the relevant Service Order in accordance with the terms therein. If no fee schedule is listed in the Service Order, then fees shall be due and payable to Growth99 upon Customer’s receipt of an invoice for such fees. Unless otherwise agreed to by parties, all invoices are payable within ten (10) calendar days following receipt of invoice by Customer. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Growth99’s net income.
4.2. Remedies. In the event that an invoice is not timely paid, Growth99 shall have the right (i) to charge interest on the unpaid amount at the rate of 1.5% per month or the highest interest rate permitted by law, whichever is less, (ii) to suspend performance of its Services until such time that payment is received by Growth99, it being understood that such suspension of services shall not be deemed a violation of Growth99 of this Agreement or Service Order, and/or (iii) demand and receive from Customer additional funds to ensure Customer’s payment for future, unperformed Services. In the event that any invoice remains unpaid for a period of thirty (30) days or more following the due date, Growth99 shall have the right (but not the obligation) to terminate the relevant Service Order or, in its discretion, all Service Orders and/or this Agreement, and demand and receive payment from Customer for all work performed by Growth99 under all Service Orders up to date of termination, including but not limited to sending Customer invoice(s) to a collection agency. The remedies described in this subsection are cumulative and not exclusive, and shall not diminish or prevent Growth99 from exercising any other remedies available to it at equity or law.
5. LIMITED WARRANTY & DISCLAIMERS
5.1. General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is the legally binding obligation of such party and is enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement does not and will not conflict with any obligation, agreement, order, judgment or instrument to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.
5.2. Customer. Customer represents and warrants that (a) Customer has all rights to grant the licenses to Growth99 set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.
5.3. Limitations. Growth99 will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer use of the Services not in accordance with this Agreement or any relevant documentation provided by Growth99, (b) failures in any telecommunications, network or other service or equipment outside of Growth99’s or its service providers’ facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond Growth99’s reasonable control, or (e) unauthorized access, breach of firewalls or other hacking by third parties. Growth99 does not warrant that its Services and the functionality of any website or application created as part of the Services will be uninterrupted or error-free.
6. DISCLAIMERS. EXCEPT AS PROVIDED IN SECTION 5 (LIMITED WARRANTY & DISCLAIMERS) HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, GROWTH99 HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE
7. LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF SWIFTLY) OR PAID AND PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
7.1. Data Protection Losses. THE SITE, THE SERVICES AND ALL INFORMATION, AND OTHER MATERIALS PROVIDED THROUGH THE SITE OR THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. WE AND OUR SUBSIDIARIES SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DO NOT GUARANTEE THE SECURITY OF THE SITE OR THE SERVICES OR THE PREVENTION FROM LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO, YOUR INFORMATION OR DATA. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, RELATING TO OR RESULTING FROM THE USE OR INABILITY TO USE THE SITE, OR OTHER SERVICES, MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, DELETION OF FILES, LOSS OR MODIFICATION OF CONTENT OR DATA, ERRORS, DEFECTS, MISDELIVERIES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO ANY SERVER, RECORDS, PROGRAMS, OR SERVICES WHETHER OR NOT LIMITED TO CIRCUMSTANCES BEYOND OUR CONTROL. IN NO EVENT WILL WE OR OUR AFFILIATES, SUPPLIERS, CONTRACTORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, AGENTS, AND/OR EMPLOYEES BE LIABLE FOR ANY DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING IN CONNECTION WITH THE SERVICES OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SITE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, OR LOSS OR MODIFICATION OF CONTENT OR DATA.
8.1. Customer. Customer agrees to defend against and hold Growth99 harmless from any claim by a third party that arises from or is related to (a) any Customer Content, (b) Customer’s use of the Services in violation of this Agreement, and to indemnify Growth99 for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
8.2. Growth99. Growth99 agrees to (a) defend against and hold Customer harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. In limitation of the foregoing, Growth99 shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Growth99, (iii) any Customer Content, or (iv) Customer’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of Growth99, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
8.3. Alternative Remedy. If any part of the Services become or, in Growth99’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Growth99 may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing. If (1) and (2) are not reasonably available to Growth99, Growth99 may terminate this Agreement upon written notice to Customer.
8.4. Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
9. TERM & TERMINATION
9.1. Term. Unless otherwise specified in an applicable Order Form or terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue for One (1) Year the Effective Date (the “Term”). The Term shall automatically renew for successive One (1) Year term (each a “Renewal Term”), unless either party notifies the other party of its intent not to renew at least (90) days prior to the end of the then-current term.
9.2. Service Order Termination. A Service Order may be terminated according to the terms contained in this Agreement, provided that Customer agrees, in writing, to pay any and all costs and fees incurred and charged by Growth99 up to and including the date of termination, including but not limited to any and all costs, expenses, outlays and fees Growth99 incurs in the early termination of Service Order.
9.3. Master Agreement Termination.
9.3.1. Mutual. The parties may mutually agree, in writing, to terminate this Agreement by providing the other party with notice of such termination; provided, however, that 80% of the remaining Service Order fee will be due and payable to Growth99 by Customer in full.
9.3.2. No Liability for Termination. If Growth99 terminates a Service Order or this Agreement for any reason permitted under this Agreement, Growth99 shall not be responsible or liable to Customer for any costs, fees, expenses, charges, debts or obligations incurred by Customer as a result of such termination.
9.4. Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Ownership & Proprietary Rights), 3 (Confidentiality), 6 (Disclaimers), 7 (Limitation of Liability) 8 (Indemnification), 12 (General Provisions) and this Section 9.4 shall survive.
10. NON-DISPARAGEMENT. Customer covenants and agrees that Customer shall not, at any time during the term of this agreement and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage Growth99 or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this Agreement shall preclude Customer from making truthful statements that are required by applicable law, regulation or legal process.
11. NON-SOLICITATION. During the term of this Agreement and for a period of twenty-four (24) months following the expiration or termination of this Agreement (the “Restrictive Period”), without written consent from the managing members of each company, Customer shall not solicit any employee, independent contractor, vendor, or client of Growth99 to leave or terminate its relationship with Growth99 for any reason
12. GENERAL PROVISIONS
12.1. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Growth99’s written consent. Growth99 may freely assign this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
12.2. Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Nothing contained in this Agreement shall cause the failure of either party to insist upon strict compliance with any covenant, obligation, condition or agreement contained in this Agreement to operate as a waiver of, estoppel with respect to, any such covenant, obligation, condition or agreement. Waiver by any party of any breach of any provision of this Agreement shall not be considered as, nor constitute a continuing waiver or waiver, breach or cancellation of, any other breach of any provision of this Agreement.
12.3. Notices. Whenever under the provisions of this Agreement, notice is required or permitted to be given to either party, such notice may be delivered by electronic mail (“email”). Email notice shall be deemed received by a party when such notice is sent to the last known email address provided to the sending party by the receiving party. Notwithstanding any provision to the contrary, however, email notice shall be effective only if the receiving party subsequently acknowledges receipt of the email notice via a return email to the sending party in which the sending party’s original email is either referenced or reproduced. Notice provided in any method other than by email shall be deemed given either when delivered personally, or by courier, or by facsimile machine with printed transmittal confirmation sheet; or, three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to the party for whom it is intended with copes provided to the address set forth in this Agreement or to such other addresses as a party shall hereafter designate in writing to another party. Subject to the terms described herein, the parties acknowledge and agree that email and/or digital copies or electronic transmissions satisfy all “writing” requirements under this Agreement.
12.4. No Authority. . It is expressly understood and agreed that no employee, agent, or other representative of one party has any authority to bind the other party with respect to any statement, representation, warranty, covenant, or other expression unless such statement, representation, warranty, covenant, or other expression is specifically set forth in this Agreement.
12.5. Amendment. No amendment, waiver, or modification of this Agreement or any provision of this Agreement shall be valid unless in writing, stating with specificity the particular amendment or modification to be made, and duly executed by the parties.
12.6. Attorneys’ Fees. In the event of any action, including but not limited to litigation or arbitration, between the parties to enforce the provisions of or with respect to this Agreement of any Service Order, the prevailing party in such action shall be entitled to reimbursement for reasonable attorneys’ fees and costs at trial (if relevant) and on appeal.
12.7. Governing Law; Jurisdiction and Venue. This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of Utah, without regard to its conflicts of laws rules. The parties irrevocably submit and consent to the exclusive jurisdiction and venue of the state courts in and for Salt Lake County and the Federal Courts in and for the Utah District. The parties waive all rights to trial by jury in any action or proceeding instituted in connection with this Agreement. The parties agree not to raise the defense of forum non conveniens.
12.8. Counterparts. The parties may execute and deliver this Agreement in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement.
12.9. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.10. Publicity. Customer hereby consents to inclusion of its name, logo and Customer Content in client lists and marketing materials that may be published as part of Growth99’s marketing and promotional efforts. From time to time upon Growth99’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).
12.11. Remedies. . Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.12. Force Majeure. If and to the extent that either party if prevented or delayed by a Force Majeure from performing any of its obligations under this Agreement and promptly notifies the other party, then the affected party will be relieved of liability to the other for failure to perform or for delay in performing such obligations (as the case may be) and will not be in breach of the terms and conditions of this Agreement as a result of that failure or delay, but will nevertheless use its best efforts to resume full performance as soon as possible.
12.13. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.14. No Refunds. . In the event that this Agreement expires or is terminated under any of Sections 4.1 through 4.2 and/or 9.1 through 9.4, no portion of any payments of any kind whatsoever previously provided hereunder shall be owed or be repayable or refunded to Customer. All sales are final, and Growth99 does not offer any money-back guarantee. Customer recognizes and agrees that you shall not be entitled to a refund for any purchase under any circumstances
12.15. Inflation. In the event of price increase of wages, services, or energy occurring during the performance of this Agreement through no fault of Growth99 or its subcontractors, the contract sum, or contract requirements shall be equitably adjusted in accordance with the procedures of this Agreement. Growth99 may alter the level of fees by up to 7% above any increase over the previous 12 months.
12.16. Default, Interest, and Attorney Fees. Upon declaration of a default hereunder, the balance of the principal remaining unpaid, interest accrued thereon, and all other costs, and fees shall bear interest at the rate of six percent (6%) per annum from the date of default, or the date of advance, as applicable. In the event of default, Customer and all other parties liable hereon agree to pay all costs of collection, including reasonable attorneys’ fees.
12.17. Personal Guarantee. Customer Individual (the individual party named on this Agreement, hereinafter referred to as “Guarantor”), and any successor in interest, corporate or non-corporate, in Customer Business (the business entity that is a party to this Agreement, hereinafter referred to as “Guarantor’s Business”), jointly and severally, hereby guarantee full, prompt and unconditional payment of past, present and future obligations due under this Agreement, and the full, prompt and unconditional performance of each term and condition to be performed by Guarantor’s Business under this Agreement. This guarantee is a primary obligation of Guarantor and shall be a continuing inexhaustible guarantee. Growth99 may require Guarantor to pay and perform their liabilities and obligations under this Agreement and may proceed immediately against Guarantor without being required to bring any proceedings or take any action against Guarantor’s Business or any other person prior thereto; the liability of Guarantor hereunder being independent of and separate from the liability of Guarantor’s Business, any other guarantor, and any other person under this Agreement.
12.18. Change of Terms. Subject to the limitations of applicable law, Growth99 may, at any time, change or remove any of the terms and conditions of, or add new terms or conditions to, this Agreement. If required by law, Growth99 will provide advance notice to you of such changes.
13. ENTIRE AGREEMENT. This Agreement, together with any Service Order associated herewith, constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. Any inconsistent or additional terms on any related Service Order, confirmation or similar form, even if signed by the parties hereafter, shall be superseded by the terms of this Agreement unless such inconsistent or additional terms post-date this Agreement and are expressly stated as superseding the terms hereof.