Terms And Conditions
SERVICE AGREEMENT TERMS AND CONDITIONS
This Master Service Agreement (“Agreement”) is made as of the Effective Date provided below by and between Growth99, DBA, a Florida registered business (“Growth99” or the “Provider”) and the client whose contact information and authorized signatory appear in the signature block of the associated documents (“Customer” or “Customer Business” or “Customer Individual” or “you”).
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 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. Customer must provide thirty (30) days prior written notice to Growth99. Additional Fees will apply for this service.
1.5.4. Growth99+ Software SMS + Email. Included in Customer’s Growth99+ Software SMS + Email package is 1,000 out of the box SMS and 1,000 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 1,000, Customer may do so for additional fees. Customer will be responsible for notifying Growth99 of such intent to exceed the 1,000 SMS + Email allotment by contacting Growth99 Sales Team at email@example.com.
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. Customer agrees that sending text messages to Growth99’s team members does not constitute a support ticket. Your text message inquiry may result in a lost support ticket.
1.7.1. Standard Support. Growth99 will provide Customer with Standard Support at no additional cost.
1.7.2. VIP Services. Customer has the option to upgrade to VIP Services to expedite support response time and turnaround time. Should Customer wish to elect for VIP Services, Customer will be responsible for notifying Growth99 Sales Team by contacting firstname.lastname@example.org. Additional Fees will apply for this service.
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, Self Assessment 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 MODIFICATIO