Grower AI Platform FZ-LLC (a FZ limited liability company registered under License No. 105762 with the Registrar of Companies of the DubaiDevelopment Authority) and/or its Affiliates (“Grower”) is the owner and operator of the Grower Platform which is the ultimate marketing technology solution that allows companies to streamline theiroperations, centralize their data, optimize their campaigns, reduce their costs and increase their ROI (“Platform”).The Customer wishes to use and benefit of the services provided under thePlatform (as further described below the “Services”); Grower has and continues to have the right to modify, change, substitute, remove, suspend or update the Terms and Conditions or any information in it at any time. The Terms and Conditions may be amended from time to time, provided that Grower will provide the Customer with 15 days prior written notice of any intended changes. The Customer will have 7 days from the receipt of such written notice to provide written notice of its objection on reasonable and substantive grounds to such intended changes. In the absence of Grower receiving written notice of the Customer’s objection within such a 7-day period, the Customer will be deemed to agree to such intended changes. If the Customer provides written notice of objection, the Parties shall work together in good faith to resolve the objection. Where the objection may not be resolved, the Customer may terminate the Agreement with immediate effect by giving Grower prior written notice.
BY EXECUTING THE ORDER FORM OR USING THE PLATFORM ANDTHE SERVICES, YOU, THE CUSTOMER, AGREE TO ABIDE BY THE TERMS AND CONDITIONS.
If you are agreeing to these Terms and Conditions on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of these Terms and Conditions and, in such an event, “Customer” as used in these Terms and Conditions shall refer to such entity. If you do not have such an authority or do not agree to the terms of this these Terms and Conditions, then you must not accept these Terms andConditions and should not use the Platform and the Services.You may not use the Platform and the Services, if you are Grower’s competitor, except with their prior written consent. In addition, you may not access the Platform and the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. DEFINITIONS AND SCOPE
1.1. DEFINITIONS
Affiliate: any entity that controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, shall mean the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting stock, by contract or otherwise.
Agreement: has the meaning given under Clause Error! Reference source not found. of these Terms and Conditions.
Applicable Law: any and all laws, statutes, orders, rules, treaties, decree, regulations, directives, by-laws, schemes, codes of conduct and regulatory rules or guidelines, including sanctions law and anti-money laundering regulations, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances, applicable to a Party.
Authorized User: A named person who is authorized by Customer to access the Platform and use theServices. Each Authorized User accessing the Platform and usingServices will be identified by a unique username and password.
Customer: the entity purchasing the Services from Grower as identified in the applicable Order Form.
Customer Data: All electronic data and information submitted, entered, uploaded or retrieved in any form by or for Customer to the Services. For the avoidance of doubt, Customer Data does not include Usage Data.
Customer Support: standard technical support, for query and problem resolution, in relation to the Services.
Documentation: technical literature, specifications and user guide for theServices, as updated from time to time, accessible or supplied with theServices, in printed and/or electronic format, provided that updates to theDocumentation will not result in a material reduction in the level of performance or availability of the Services for the duration of the applicableSubscription Term.Fees: The fees and charges as set forth in the applicable Order Form and the Agreement that are payable by Customer to Grower under the Agreement.
Intellectual Property: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in designs, rights in computer software, database rights, trade secrets, and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Order Form: A Grower order form, proposal, or other ordering document in the name of and executed by Customer and accepted by Grower that specifies theServices to be provided by Grower under the Agreement, or a purchase order issued by Customer and accepted by Grower for the Services identified in Grower’s corresponding quotation, which Order Form is incorporated herein by reference.
Party: In thesingular, either Customer or Grower as the context may dictate, or in the plural (“Parties”), both Customer and Grower.
Personal Data: Customer Data relating to an identified or identifiable natural person.
Services: the software-as-a-service (SaaS) services that are available on the Platform ordered by Customer as set forth in an Order Form and made available online through the Platform by Grower to Customer, including Updates, associated modules, plug-ins, and offline components, as the context requires.Software: the software programs (and all associated modifications, replacements, upgrades, enhancements, documentation, materials and media related thereto) owned byGrower or licensed by Grower from a third-party software vendor and provided or used by Grower in connection with the use and operation of the Platform, the provision of the Services or the performance of Grower’s duties or responsibilities under the Agreement.Subscription Term: has the meaning set forth in Clause Error! Reference source not found. of these Terms andConditions.
System: with respect toPlatform, an interconnected grouping of manual or electronic processes, including equipment, Software and associated attachments, features, accessories, peripherals and cabling, and all additions, modifications, substitutions, upgrades or enhancements to such system.Taxes: all national, federal, state, provincial and local income, including VAT, withholding(including any withholding taxes on employees and consultants, if applicable),use, occupation, corporate, franchise, and/or excise taxes, goods and services taxes, real and personal property taxes, payroll, duties, import, or other taxes or governmental charges, arrears or levies in the Territory(ies).
Terms and Conditions: the present terms and conditions as amended from time to time.
Territory(ies): the territory(ies) specified under the Order Form.
Updates: Versions of the Services or components thereof, released by Grower to its customers from time to time under Grower’s support/update/development plans, which may remedy or provide a workaround to instances of non-conformance of the Services to theDocumentation or provide general improvement or enhancement to the Services.
Usage Data: Information generated by the Services pertaining to the Customer’s use of the Services and the Platform, used to monitor and continually improve the Services, which does not include within it any element of Customer Data.VAT: value added tax or any equivalent tax chargeable in the UAE or in theTerritory(ies).
1.2. SCOPE
The Agreement is comprised of:
a) these Terms and Conditions,
b) the Order Form(s), and
c) the documents expressly incorporated in to the above or by written agreement between the parties, attached as exhibits, schedules or appendices to the Terms and Conditions and/or the Order Form, or as expressly referenced within the Terms and Conditions.
In the case of conflict or ambiguity between any provision contained in the body of the Terms and Conditions and any provision contained in the OrderForm, exhibits, schedules or appendices, the provision in the body of Order Form shall take precedence.
2. GRANTOF RIGHTS & SERVICE PROVISION
2.1. Grant of Rights.
Grower grants the Customer a non-exclusive, non-transferable, limited right to access the Platform and usethe Services for internal business operations subject to the terms of theAgreement.
2.2. Subscriptions.
Unless otherwise specified in the applicable Order Form, Customer purchases Services as a subscription to use the Services for a defined Subscription Term. Payment of Fees when due are a condition for the use of the Service and maintaining theUser Subscription. Additional subscription for the Services may be added during a Subscription Term either at the then current Grower list prices or as otherwise agreed to by the Parties in an Order Form. Subscription to additionalServices added during a Subscription Term will be billable upon receipt of anOrder Form for such additional subscriptions and will terminate on the same date as the termination date of the current Subscription Term.
2.3. Provision ofServices. Pursuant to the Terms and Conditions, Grower will make theServices available to Customer and its Authorized Users by granting access to a cloud-based version of the software hosted on behalf of Grower for the duration of the Subscription Term. The software shall reside on server(s) operated on behalf of Grower. Authorized Users shall have access to the software solely via the Internet, and Customer shall not receive any software code. Grower may apply Updates from time to time in its sole discretion, and in accordance with theAgreement, as part of its on-going intent to improve the Platform, the Services and Customer’s use of the Services.
2.4. In supplying the Services, Grower shall:
2.4.1. exercise commercially reasonable professional skill, care and diligence in relation to the performance of the Services;
2.4.2. take reasonable care of all Customer’s Confidential Information in its possession;
2.4.3. supply theServices in a manner such that the Platform is (i) reasonably working to the same degree as if it was installed in Customer’s physical location and on-site computers and (ii) available, subject to interruptions for routine repair and maintenance, consistent with customary industry standards, and subject to the force majeure provisions hereunder.
2.5. Personal Data.
To the extent that Customer Data comprises Personal Data, the terms of the Data ProtectionAddendum attached hereto as Exhibit C, which is incorporated intothe Agreement, shall apply.
2.6. Third-Party Service Providers/Subcontractors.
Customer agrees that Grower through the offering of its Services uses the services of third-party services providers(the “Third-Party Service Providers”). By the Customer continued use of theServices, the Customer signifies its acceptance of both terms and condition between Grower and the Third-Party Service Providers (the “Third-Party Service Providers Terms”). The Customer hereby acknowledges and agrees that the Third-Party Service Providers Terms will govern certain aspects of services offered by the Third-Party Service Providers and that are part of the Services (the “Third-Party Services”). Customers agree to be bound by, and bear the risks associated with, theThird-Party Service Providers Terms whether they create a contractual relationship directly between Customer and the Third-Party Service Providers ora contractual relationship between Grower and the Third-Party ServiceProviders. Grower does not warrant the Third-Party Services in and assumes no liability to Customer with respect to the Third-Party Services. The Third-PartyService Provider is the sole party liable to Customer.
2.7. Devices. Customer acknowledges and agrees that the use of the Platform and the Services requires one or more compatible devices,Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of theServices involves hardware, software, and internet access, the Customer’s ability to access and use the Platform and the Services may be affected by the performance of these factors. The Customer acknowledges and agrees that thePlatform and Services requirements, which may be changed from time to time, are the Customer’s responsibility. It is the Customer’s sole responsibility to make sure its devise, internet and software are compatible with the Platform,Services, Customer Portal and the Systems.
2.8. Continuity of the Services.
The continued availability of any Service shall be subject to Grower’s consent, inits sole discretion, and to the fulfillment by the Customer of such conditions as Grower may require from time to time.
2.9. Use of Affiliates.
Grower may provide any of the Services hereunder through any of its Affiliates.
3. OBLIGATIONS OF GROWER
3.1. In consideration for the undertakings agreed under the Agreement and payment of the Fees payable, Grower shall:
a) Allow the Customer to upload Customer Data to the Platform;
b) Provide standard Customer Support for query and issue resolution in relation to the Services will be provided to Customer in accordance with Customer Support Description attached hereto as Exhibit B and incorporated into the Agreement.
c) Reserve the right to modify or delete any Customer Data listed by Customer at its sole discretion to ensure compliance with Applicable Laws and standards.
d) Comply with the requirements of Services in performing its obligations under the Agreement.
e) Avail and maintain the performance and operations of the Services andPlatform in a manner that is consistent with standard industry practice. Grower will make reasonable efforts to keep the Platform operational and the Services available. However, Grower makes no assurances that the Platform and theServices for Customer and Guests will be available continuously on a 24 x 7 x 365 basis. Certain technical difficulties or maintenance may result in temporary interruptions. Grower reserves the right, periodically and at anytime, to modify or discontinue, temporarily or permanently, functions and features of the Platform or the Services, upon reasonable notice, all without liability to Customer, except where prohibited by law, for any interruption, modification, or discontinuation of the Platform or Services or any function or feature thereof. Customer understands, agrees, and accepts that Grower has no obligation to maintain, support, upgrade, or update the Platform or theServices, or to provide all or any specific content through the Platform or theServices. This section will be enforced to the extent permissible by ApplicableLaw.
f) Attend to and rectify any glitches on the Platform promptly.
g) Ensure that the Customer Data is properly stored and protected in accordance with industry standards and technology best practices to protect customers’ data from any unauthorized disclosure or acquisition by an unauthorized person, and implement reasonable security measures in protecting, handling, and securing such Customer Data, and ensure that Customer Data obtained by it during the performance of the Services shall be that data strictly necessary for performance of the same and may only be applied or used to fulfil the purpose of the Services.
h) Use all commercially reasonable efforts to provide accurate and fit data security and systems security which includes system level access security measures and data-level access security measures.
i) Have the full and unrestricted right suspend the Customer’s account or terminate access to Platform and/or Services, with no penalty, should theCustomer be suspected as, or found, non-compliant or in breach of anyApplicable Law in its operations and services including its account activity.
4. CUSTOMER RESPONSIBILITIES
Usage Limits.
4.1. Services may not be accessed by more Authorized Users than the number specified for theServices in the applicable Order Form. Each Authorized User accessing theServices will be identified by a unique username and password and such credential are strictly for the individual designated Authorized User only and may not be shared. Authorized User subscriptions may, however, be reassigned toa new individual to replace an existing Authorized User who no longer requires use of, or access to, the Services. Customer will: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services;(b) notify Grower promptly if it becomes aware of any such unauthorized accessor use; and (c) use the Services solely for its business as contemplated by theAgreement.
4.2. Unless otherwise agreed in an executed Order Form , (a) Grower will allocate the specified amount of usage time, data transfer and data storage as set forth in the applicable Order Form to Customer’s use of the Services and (b) Grower reserves the right, with prior written notice to Customer, to charge additional fees for Customer’s use that is in excess of such allocated usage limits at its then-current list prices, provided that Grower also notifies the Customer in writing if the Customer approaches the allocated usage limits prior to the end of the applicable Subscription Term.
4.3. CustomerResponsibilities Regarding Customer Data.
Customer shall have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Customer Data, and the means by which Customer Data was acquired.
4.4. Terms of Use.
Customer agrees to and shall comply with the Terms of Use set forth in Exhibit A attached to and incorporated into the Agreement.
4.5. Suspension.
If any AuthorizedUser:
(a) violates the Agreement;
(b) is using the Service in a manner that Grower reasonably believes may cause a security risk, a disruption to others’ use of the Services, or liability for Grower, Grower may, upon written notice to Customer specifying the non-compliance in reasonable detail:
(i) suspend the account of such Authorized User; and
(ii) require the Customer to remove the non-compliant Customer Data from the Services immediately. If the Customer fails to do so, Grower may, at its own option, delete the non-compliantCustomer Data from the Services or terminate access to such Customer Data.
Use Restrictions.
4.6. The Customer is liable for its access and its Authorized Users to thePlatform and use of the Services.
4.7. The Customer must not (and must procure the same from its AuthorizedUsers):
(i) use the Platform and/or the Services for any reason unconnected with thepurpose of the Agreement;
(ii) use the Platform and/or the Services to design or develop a competitiveor substantially similar product or service;(
iii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Grower’s networks, the Platform or the Services;
(iv) attempt to interfere with or compromise the integrity or security of thePlatform and/or the Services;
(v) transmit through the Services any material that may infringe the Intellectual Property or other rights of third parties;
(vi) engage inactivity that is illegal, racially offensive, inciting hate and abuse, fraudulent, false, or misleading;
(vii) circumventing any territorial restrictions applied by, or on, Grower or its licensors;(
viii) taking any action that imposes an unreasonable load on the Services;
(ix) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the Intellectual Property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any Applicable Law;
(x) attempt to copy, modify, duplicate, create derivative works from, frame,mirror, republish, download, display, transmit, or distribute all or anyportion of the Platform and/or the Services in any form or media or by anymeans; (
xi) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Platform and/or theServices; and(
xii) erase or remove any proprietary or intellectual property notice contained in the Platform and/or the Services;
(
xiii) upload or transmit any software, data or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Grower or other users of Services;
(xiv) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Grower's security systems; and
(xv) share with a third party (or enable a third party to use) any operational, technical or other data obtained through the use of the Platform and/or the Services in any manner that is competitive to Grower or any of its Affiliates, including, without limitation, in connection with any application, website or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to the products and services of Grower or a Grower Affiliate.
4.8. In addition to the above, Customer may not use the Platform or theServices in connection with any of the following businesses and activities, orthat are otherwise notified to Customer by Grower by email or by posting a notice on the Grower’s website: (i
) Illegal Activities. The sale of any good or service that violates anyApplicable Laws.
(ii) Certain Adult Oriented Products and Services. pornography any depiction of sex or bestiality is prohibited.(
iii) Illegal Drugs. illegal pharmaceuticals, illegal drugs, or drugparaphernalia.(
iv) Gambling Businesses. gambling, lotteries (including sale of lotterytickets), games of chance (including sweepstakes and raffles), sportsforecasting, or odds-making.
(v) Tobacco Products. Any activity violating applicable laws or industryregulations regarding the sale of tobacco products.
4.9. The Customer shall indemnify and defend Grower from and against allloss, or damages, claims, liabilities or expenses (including lawyer's fees) ofwhatever nature suffered, sustained or incurred, arising from any claim madeagainst Grower by a third party arising out of or in connection with:
(a) the Customer’s use of the Platform and/or the Services or information obtained through the Customer’s use of the Platform and/or the Services;
(b) material breach or violation of theAgreement by the Customer and/or Authorized Users;
(c) the Customer’s violation of the rights of any third party, including with respect to any third party content;
(d) Customer Data provided infringes rights and data thereof, or against data which is objectionable, incorrect or misleading and/or
(e) any act of negligence, willful misconduct or fraud by Customer and/or Authorized User.
4.10. Right to Use Customer Data.
Customer grants to Grower an unrestricted, non-exclusive, perpetual, irrevocable, royalty-free, worldwide right to reproduce, transmit, use, derive, publish, distribute or otherwise display CustomerData (together with a right for Grower to sub-license the same to and any third-party suppliers for use on Grower’s behalf) for the purposes of inclusion in, and operation of the Platform and the Services. Grower will take reasonable efforts to adhere to any guidelines provided by Customer in this respect. Subject to any other provisions of theAgreement, this right shall remain effective until and unless the Agreement is terminated by a Party hereto.
4.11. Internal Research.
Customer agrees that Grower may use Customer Data for its internal research and service development purposes and to conduct statistical analysis and identify trends and insights, in perpetuity.
4.12. Transfer of Customer Data.
Customer acknowledges and agrees that Grower may, in connection with the Platform or in the course of providing its Services under theAgreement, process Customer Data in, or transfer such Customer Data to, a country other than the Territory(ies) or to process it by using a Third-PartyService Provider. Customer authorizes Grower to transfer such Customer Data in connection with the Platform and related Services under the Agreement outside of the Territory(ies) or with any other lawful data transfer mechanism that provides an adequate level of protection under Applicable Law as to process it by using a third-party service Grower.
4.13. Anonymized Data.
Customer grants to Grower a worldwide, non-exclusive, royalty-free license to aggregate anonymized Customer Data, including data from other customers, so long as such aggregation omits any data that would enable the identification of the Customer, or any individual, company, or organization (“AggregatedData”). Customer further grants Grower a worldwide, perpetual, royalty-free license to use, modify, distribute, and create derivative works based on suchAggregated Data, including all reports, statistics, or analyses created or derived therefrom. All data held or processed by Grower, including theAggregated Data, will also be used to enhance the Platform and/or Services provided by Grower.
5. FEESAND PAYMENT
5.1. Fees.
Customer shall pay all Fees specified in the applicable Order Form. Customer acknowledges that:
(a) Fees are based onServices purchased;
(b) payment obligations are non-cancellable, and any Fees
paid are non-refundable, unless otherwise specified in the Agreement; and (c)the number of Authorized User purchased in the applicable Order Form cannot be decreased during the Subscription Term unless otherwise agreed in an Order Form executed by both Parties.
5.2. Invoicing and Payment.
Grower shall issue invoices in accordance with the Agreement and the applicable Order Form. Customer is responsible for providing Grower with complete and accurate invoicing and contact information and promptly notifying Grower of any changes to such information. All non-disputed invoices issued by Grower to Customer are due net 30 (thirty) days from the invoice date.
5.3. Overdue Amounts.
If any undisputed invoiced amount is not received by Grower by the due date, then without limiting its rights or remedies, Grower may:
(a) invoice Customer for the late payment interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Applicable Law, whichever is higher; and
(b) upon written notice, suspend Customer’s access to the Services until payment is received in full.
5.4. Suspension of Services and Access to Platform. Grower reserves the right, without incurring any liability, to suspend or refuse to provide the Services or deny access toPlatform or other Services to the Customer if the Customer fails to payGrower's invoice with respect to any amounts within the designated time. Grower shall not be obliged to repay any portion of the Fees for subscription to the Platform paid to or received byGrower in advance for any period in which Grower suspends the Service and/or access to the Platform.
5.5. Set off. The Customer agrees and acknowledges that in so far there are insufficient funds to settle and pay all amounts due toGrower, Grower shall be entitled to collect the relevant deficit by means of set off and offset of any due amount to Customer.
5.6. ChargingCard. Customer agrees that Grower shall have the right(without the need of any further consent) to charge to the Customer credit card or other payment mechanism selected by the Customer and approved by Grower all Fees and due and owing for the Services, including Taxes.
5.7. PriceChanges. Grower may change prices at any time, including hanging from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Grower will provide the Customer with prior notice and an opportunity to terminate the subscription to the relevant Services if Grower changes the price of a Service to which the Customer subscribed to.
Taxes.
5.8. All payments under the Agreement will be made free and clear of and without deduction of any Taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction. All amounts due under the Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by Customer at the price and in the manner for the time being prescribed byApplicable Law.
5.9. In the event that any payments made by the Customer to Grower under theAgreement are subject to any Taxes, duties, or other charges imposed by any governmental authority, the Customer shall, in addition to the amounts otherwise payable under the Agreement, pay to Grower an additional amount (the“Gross-up Amount”) such that the net amount received by Grower after the deduction of such Taxes, duties, or other charges is equal to the amounts payable under the Agreement. The Gross-up Amount shall be calculated by theCustomer based on the applicable tax rate(s) and any other relevant factors, and the Customer shall provide Grower with reasonable documentation and evidence of such calculation upon request. This gross-up obligation shall apply to any Taxes, or other similar charges imposed on payments made under theAgreement, whether levied by Customer's jurisdiction or any other jurisdiction.This gross-up clause shall survive the termination or expiration of theAgreement.
5.10. Currency Risk. The Customer accepts and acknowledges that due to fluctuating currencyexchange rates and costs/fees charged by banks, credit card companies and otherintermediaries (for the collection, processing and payment of the relevantfunds), there may be differences between the Fees and the amount paid to Grower.The Customer shall bear the currency exchange risk and the costs and fees ascharged by its banks for the receipt and conversion of the Fees.
5.11. Fraudulent Activities. In the event of (alleged) fraudulent activities by the Customer or if Grower is required by law, court order, (semi-) governmental instruction or orders, arbitrational decision (or similar ruling), subpoena or cancellation policy to make a refund, of all or part of the Fees (or in so far otherwise reasonable and fair), Grower reserves the right to claim from the Customer repayment of such amount.
6. PROPRIETARYRIGHTS
6.1. Grower Rights in the Services.
Subject to the limited rights expressly granted hereunder, Grower and its licensors reserve all rights, title and interest in and to thePlatform, the Services and Documentation, including all related IntellectualProperty rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Grower License.
Subject to the terms and conditions of the Agreement, Grower hereby grants to Customer and its Users anon-exclusive, fee-bearing, non-sublicensable, non-transferable license to access and use the Platform, the Services and Documentation for Customer’s internal business operations during the specified Subscription Term. Subject to the limited license granted in this Section, Customer acquires no right, title or interest from Grower under the Agreement in or to the Platform, the Services and/or the Documentation.
6.3. Limited License to Use Customer Data.
Customer hereby grants to Grower a limited, non-exclusive and non-transferable license to access, use, copy, reproduce, process, transmit and display Customer Data submitted to the Services by Customer and AuthorizedUsers, or provided by Customer to Grower, for the limited purpose of: (a)providing the Services and Customer Support and displaying the Customer Data toAuthorized Users for the duration of the Agreement; and (b) generating UsageData.
6.4. Usage Data.
Grower will own all right, title and interest in all UsageData. Customer agrees that Grower may use and exploit all Usage Data for any purpose without any obligation to Customer; provided however, that Grower may only disclose Usage Data to third parties so long as the Usage Data is disclosed only in the aggregate and not in a manner that it is attributable toCustomer, Authorized User or any individual. 6.5. Right to Ideas. Grower shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Platform, the Services, Documentation and CustomerSupport, any suggestions, ideas, enhancement requests, recommendations or other feedback (collectively, the “Feedback”) provided by Customer or its AuthorizedUsers relating to the operation and use of the Platform and/or Services. 6.6. Customer List. Customer hereby grants Grower the right to list you as its customer in any descriptions of Grower materials and related press releases, case studies, and other promotional and marketing materials; provided however, that Grower has no obligation to do so.
7. CONFIDENTIALITY
7.1. Confidential Information.
For the purposes of the Agreement, “Confidential Information” means all information disclosed by a Party or its Affiliates (“Disclosing Party”)to the other Party (“Receiving Party”), whether orally or in writing, 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 does not include any information that:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to theDisclosing Party;
(c) is received from a third party without restriction and without breach of any obligation owed to the Disclosing Party; or
(d) was independently developed by the Receiving Party without use of the DisclosingParty’s Confidential Information.
7.2. Protection of Confidentiality.
Each Party agrees to protect the confidentiality of theConfidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information, using at least reasonable care. The Receiving Party shall not disclose or use anyConfidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, each Party shall have the right to disclose the other Party’s Confidential Information to such of its Affiliates, directors, officers, employees, contractors, accountants, financial advisors and legal counsel having a need to know the Confidential Information (each a “Representative”)for the purpose of the Agreement, provided that, prior to any such disclosure to a Representative, the Representative has agreed in writing to be bound by obligations of confidentiality and non-use on terms at least as restrictive as the terms contained herein. In addition, each Party shall be responsible for any breach of the Agreement by its Representatives.
7.3. Legally Required Disclosure.
The Receiving Party may disclose Confidential Information of theDisclosing Party to the extent compelled by law, regulation, regulatory authority, or order of a governmental agency, or court of competent jurisdiction to do so, and as required for the purposes of regulatory filings, prosecuting or defending litigation, or complying with applicable law(including regulations promulgated by securities exchanges), provided theReceiving Party gives the Disclosing Party prior written notice of such disclosure (to the extent legally permitted).
7.4. Injunctive Relief.
Each party agrees that any actual or threatened disclosure or misappropriation of Confidential Information would constitute immediate, irreparable harm to the other party for which monetary damages may be an inadequate remedy. Therefore, in addition to any other rights and remedies that may be available to the parties at law or in equity, each party may seek injunctive relief for any such actual or threatened disclosure without the posting of a bond.
7.5. Survival.
The obligations set forth in thisSection 8 shall survive until five (5) years from the termination or expiration of the Agreement.
8. WARRANTIES
8.1. To the best of Grower’s knowledge, the Documentation do not and shall not infringe upon or misappropriate the Intellectual Property Rights of any third party. Notwithstanding the foregoing, while Grower has and/or will, to the best of its efforts, obtain binding representations from third-party providers that materials provided to Grower by a third party Grower for inclusion inDocumentation do not infringe upon the Intellectual Property Rights of any third party, Grower makes no representation and provides no warranty that any materials provided to Grower by a third party Grower for inclusion inDocumentation do not infringe upon the Intellectual Property Rights of any third party.
8.2. The Customer warrants that Customer Data does not and shall not infringe upon or misappropriate the Intellectual Property Rights of any third party.
8.3. The Customer agrees to indemnify and hold Grower and its Affiliates harmless (and their respective directors, officers, agents, representatives and employees) from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with any claim or suit or demand:
8.3.1. by any third party for reasons not attributable to the Service;
8.3.2. in respect of, arising out of, or in connection with, the services and products actually or purportedly offered by the Customer;
8.3.3. brought either by Grower or Grower Parties and/or third party on account of misuse, abuse, cheating, fraud, misrepresentation carried out by theCustomer, including through its staff;
8.3.4. loss of business due to Platform and/or Services, during System outages; or
8.3.5. for any misleading or incorrect or false Customer Data or data provided by the Customer.
8.4. Grower will have no obligation under this clause to the extent a claim is based on use of the Services in a manner inconsistent with the Agreement or asa result of negligence or willful misconduct of the Customer.
8.5. The Customer represents and warrants to Grower that for the term of theAgreement:
8.5.1. It has all necessary rights, power and authority to use, operate, own (as applicable), (sub)license and have Grower make available on the Platform (theCustomer Data made available on the Platform.
8.5.2. It holds and complies with all permits, licenses and other governmental authorizations, registrations and requirements necessary for conducting, carrying out and continuing its operations and business.
8.5.3. It and its directors and (direct, indirect and ultimate (beneficial))owners (and their directors) are not in any way connected to, part of, involved in or related to or under the control, management or ownership of:
(a)terrorists or terrorist organizations;
(b) parties/persons
(i) listed as(special) designated nationals/entities or blocked person/entities, or
(ii)otherwise subject to any applicable trade embargo, or financial, economic and trade sanctions; and parties/persons guilty of money laundering, bribery, fraud or corruption. The Customer shall immediately notify Grower in the event of a breach of this Clause.
8.5.4. That, for the term of the Agreement, it complies with all Applicable Laws concerning employment rights, human rights, non-discrimination and modern slavery, and in particular does not hold any person in slavery or servitude, or arrange or facilitate the travel or stay of another person with a view to that person being exploited. 8.5.5. It and its personnel and its agents and other representatives will pay in full all Taxes that are lawfully due from it in any jurisdiction(s) in which it operates, and will not: (x) commit (or facilitate, aid, abet, counsel or procure the commission of) any offence of cheating the public revenue or the fraudulent evasion of any Tax, or (y) otherwise breach or take any action that may place the other party in breach of Applicable Laws prohibiting Tax evasion and the facilitation of Tax evasion.
8.5.6. That, for the term of the Agreement, it is not: (x) listed on any applicable list of sanctioned parties (including the lists of restricted parties issued by any GCC country, the United Nations, United States of America,European Union and United Kingdom (y) owned by, controlled by, or acting at the direction of, any person, persons or corporate or unincorporated body (whether or not having a separate legal personality) listed on such a list or that person’s or entity’s legal or personal representatives, successors or permitted assigns; or ordinarily resident in or organized under the laws of any jurisdiction subject to comprehensive or other territory-wide sanctions imposed by any GCC country, the United Nations, United States of America, EuropeanUnion and United Kingdom.
8.5.7. It will take any action that would breach (and not take any action that would place the other party in breach of) applicable sanctions.
8.5.8. It will, for the term of the Agreement, implement reasonable internal measures (including policies, procedures, compliance audits and training)intended to ensure that it (and its personnel) does not breach representations, warranties and undertaking set forth under this Clause 8.
8.6. Each Party represents and warrants to the other Party that for the term of the Agreement:
8.6.1. It has the full corporate power and authority to enter into and perform its obligations under the Agreement.
8.6.2. It has taken all corporate action required by it to authorize the execution and performance of the Agreement.
8.6.3. The Agreement constitutes legally valid and binding obligations of thatParty in accordance with its terms.
8.6.4. Each Party shall comply with all applicable governmental laws, codes, regulations, ordinances and rules of the country, state or municipality under which law the relevant Party is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
8.7. Except as otherwise expressly provided in the Agreement, neither Party makes any representations or warranties, express or implied, in connection with the subject matter of the Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability or fitness fora particular purpose regarding such subject matter.
8.8. The Platform, the Services and theDocumentation are provided “as is,” “as available,” and with all faults. Grower Parties disclaim all warranties, express and implied, including, but not limited to, any warranties of merchantability, quality of information, quiet enjoyment, non-infringement, title, and fitness for a particular purpose. Grower Parties do not warrant that the Platform, theServices and the Documentation or any third-party sites will be error free, uninterrupted, free from spyware, malware, adware, viruses, worms, or other malicious code, or will function to meet your requirements. Grower Parties do not warrant that the Platform, the Services and the Documentation or any third-party sites will work on the Customer hardware, with Customer operating systems, or with any other software installed on Customer computers.Information obtained by Customer from any Grower Party will not create any warranties.Customer assumes all risks associated with the use of the Platform, theServices and the Documentation. It is Customer’s sole responsibility to determine whether the use of the Platform, the Services and the Documentation is suitable and adequate for its needs
8.9. Grower makes no warranties or representations about the accuracy or completeness of the Platform, the Services and theDocumentation or the content of any other websites linked to the website, and assumes no liability or responsibility for any
(a) errors, mistakes, or inaccuracies of content and materials,
(b) personal injury or property damage, of any nature whatsoever, resulting from the Customer or its Authorized Users access to and use of the Platform, and the Services,
(c) any unauthorized access to or use of Grower's servers and/or any and all personal information and/or financial information stored therein, not attributable to Grower’s actor omission,
(d) any interruption or cessation of transmission to or from the website or otherwise with respect to the Platform and/or the Services,
(e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the Services by any third party, and/or
(f) any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Platform and/or Services.
8.10. Mutual Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, REPRESENTATION OR OTHER COMMITMENT OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES, REPRESENTATIONS OR OTHER COMMITMENTS OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF SATISFACTORY QUALITY,TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. COMPLIANCE WITH APPLICABLE LAW
9.1. Each Party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under theAgreement, its employees, agents and representatives will comply with allApplicable Laws.
10. INFORMATION SECURITY
10.1. Each Party will comply with all security policies and take all such necessary security measures as agreed in writing between them.
10.2. Each Party will cooperate with any investigation relating to security that is carried out by or on behalf of the other Party.
10.3. Grower shall not be responsible for any loss or damage to the Customer Data to the extent that such loss or damage was caused by the Customer, or by a third party that is not within Grower’s reasonable control.
11. INDEMNIFICATION
11.1 Indemnification by Customer.
Customer agrees to indemnify and hold harmless Grower and its business customers, employees, representatives, third party providers, and affiliates (the “Grower Parties”) from and against any and all claims, liabilities, damages, losses, fines, and expenses (including, but not limited to, reasonable legal and other professional fees and costs of investigation) arising from or in any way related to:
a) Customer and/or Authorised Users use of thePlatform, the Services and/or the Documentation;
b) Customer breach of the Agreement, or otherapplicable terms and conditions of Platformand/or Services as well as Applicable Law;
c) all claims made by Guests regarding orpursuant to the Best Price Guarantee;
d) all claims against Grower in relation to oras a result of the failure of the Customer to
(i) properly register withrelevant tax authorities, or
(ii) pay, collect, remit or withhold anyapplicable Taxes, fees and (sur)charges levied or based on the services orother charges hereunder in the relevant jurisdiction;
e) the activities in connection with which thePlatform, and Services are being used; or
f) Customer or any of its staff’s orrepresentatives’ negligence or wilful misconduct, including without limitation,claims of intellectual property infringement, breach of privacy or violation ofApplicable Law arising under any of the foregoing clauses. Customer may notenter into any stipulated judgment or settlement that purports to bind Growerwithout Grower’s prior express written authorization, which will not beunreasonably withheld or delayed.
11.2 Indemnification by Grower.
If a third party makes a claim against Customer, its officers, directors or employees alleging that Customer’s use of theServices for its intended normal purposes as contemplated hereunder infringes the Intellectual Property rights of a third party, Grower shall: (a) pay all reasonable costs to defend Customer; and (b) pay any damages assessed againstCustomer in a final judgement by a court of competent jurisdiction or any settlement that Grower has agreed upon with such third party, subject to Clause11.3, provided; however, that the indemnification obligations set forth in this Clause 11.2 shall not apply (i) with respect to any claim of infringement based upon any modifications to the Services made byCustomer or a third party not authorized by Grower, or (ii) to the extent the claims arise from Customer’s negligence or willful misconduct.
11.3 Cure.
Grower may, at its option and expense, attempt to resolve any claim described in Clause 11.2 by:
(a) modifying the Services to avoid the alleged infringement, without materially altering the Services;
(b) obtaining a license to permit Customer’s use of the Services as contemplated b ythe Agreement; or
(c) terminate the license grant set forth in the Agreement with respect to the Services and entitle Customer to receive a refund for any amounts paid in advance that are attributable to the unused portion of theSubscription Term.
11.4 Cooperation.
In the event of a third party claim,Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defense and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
11.5 Notice and Control.
The indemnification obligations setforth in Clause 11.2 is contingent upon the Customer:
(a) promptly giving written notice of the claim to Grower,
(b) giving Grower sole control over the defence and settlement of the claim and
(c) providing to Grower, onits request and at Grower’s cost, all reasonable assistance.
11.6 Remedies.
Customer acknowledges and agrees that its breach of the Agreement relating to the licenses granted herein and its use of Grower’s Confidential Information may result in irreparable harm and permanent injury to Grower for which monetary damages would be an inadequate remedy. Consequently, Customer acknowledges and agrees that, in such circumstances, Grower will be entitled to seek and obtain, without the posting of a bond, in addition to all other remedies available to Grower, at law or in equity, immediate injunctive relief to prevent or stop any breach of those provisions.
12. LIMITATION OF LIABILITY
12.1 Limitation of Liability.
GROWER’S MAXIMUM CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER IN FEES IN THE 3 MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO SUCH CLAIM.
12.2 Exclusions. GROWER PARTIES ARE NOT, AND WILL NOTBE, LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY,CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TOANY
(I) PROPERTY DAMAGE,
(II) LOSS OF USE,
(III) LOSS OF BUSINESS,
(IV)ECONOMIC LOSS,
(V) LOSS OF DATA, OR
(VI) LOSS OF PROFITS AND WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH:
(A) THE AGREEMENT OR OTHER APPLICABLE TERMS AND CONDITIONS OF THE PLATFORM, THE SERVICES AND DOCUMENTATION;
(B) THE USE OF PLATFORM, SERVICES, AND DOCUMENTATION;
(C) THEUSE OF THE PLATFORM, THE SERVICES AND DOCUMENTATION,
(D) ANY INTERRUPTION INTHE USE OF THE PLATFORM, AND SERVICES;
(E) THE UNAUTHORIZED ACCESS BY ANY PARTY TO GROWER SERVICES AND SYSTEMS, INCLUDING CUSTOMER DATA, EVEN IF ANY OF GROWER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
12.3 Grower is not responsible for the content, security, operation, or use of any Third-Party Service Providers or the products or services that may be offered or obtained through the Third-Party Service Providers or for the accuracy, completeness, or reliability of any information obtained from aThird-Party Service Provider. Grower is hereby relieved from any and all loss, damages or other liabilities incurred as a result of the access to, or use of, any Third-Party Service Provider or the products or services that may be offered or obtained through the Third-Party Service Provider. Grower shall in no way be responsible for and does not endorse or accept any responsibility for the Third-Party Service Providers, including any theft or fraud, breach of confidential information shared or any other action or omission of the Third-PartyService Providers.
12.4 Grower shall in no way be liable for any theft, misappropriation, fraud or other misleading activity occurring on the Platform where such action is not attributable to Grower’s act.
12.5 The Parties agree that the liability provisions are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under the Agreement.
12.6 Customer acknowledges that remedies at law may be inadequate to protectGrower against any breach of the Agreement and without prejudice to any otherrights and remedies otherwise available to Grower, Grower will be entitled toinjunctive relief and specific performance.
13. TERM AND TERMINATION
13.1 Term of Agreement.
The Agreement commences on the date the Customer’s first Order Form is accepted by Grower and continues until all subscriptions granted in accordance with the Agreement have expired or have been terminated. Except as otherwise provided herein, neither Party may terminate the Agreement or any subscriptions without cause.
13.2 Term of User Subscriptions.
User Subscriptions start on the date specified in the applicable Order Form and continue for the subscription term specified therein (“Subscription Term”). Unless otherwise specified in the applicable Order Form, at the end of the initial Subscription Term, the applicable subscriptions shall automatically renew for successive similar periods at Grower’s then current list price, unless either Party gives written notice of non-renewal at least sixty (60) days prior to the end of the then current Subscription Term.
13.3 Termination for Cause.
A Party may terminate the Agreement for cause:(a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b)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.
13.4 Refund or Payment upon Termination.
If Customer terminates the Agreement for cause in accordance with Clause13.3 above, Grower will refund Customer any prepaid Fees covering the remainder of the applicable Subscription Term after the date of termination. If Grower terminates the Agreement for cause in accordance with Clause13.3, Customer will pay all Fees otherwise payable toGrower through the end of the Subscription Term.
13.5 Return of Customer Data upon Termination.
Upon the effective date of any expiration or termination of theAgreement by either Party: (a) all rights and licenses granted to either Party will terminate; and (b) except as otherwise stated herein, each Party will immediately, in accordance with the other Party’s instructions, either destroy and certify destruction or return to the other Party all ConfidentialInformation of the other Party (and in the case of Grower also Customer Data),in its possession, custody or control in whichever form held, unless suchConfidential Information or Customer Data is required to be held by a Party for regulatory, audit or legal reasons. Upon Customer’s written request, within thirty (30) days of expiration or termination of the Agreement, Grower will make available to Customer for download a file of Customer Data in a commonly readable format.
13.6 Accrued Rights.
Notwithstanding the termination of theAgreement, the Customer shall remain liable to pay to Grower all sums accrued due on or prior to the date of termination.
13.7 Exit Consequences.
In the event of termination of theAgreement for any reason:
(i) the Customer’s right to access the Platform and the Services provided under the Agreement shall terminate immediately on the effective date of termination;
(ii) and all provisions of the Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
14. GENERAL
14.1 Non-Solicitation.
The Customer agrees that during the term of theAgreement and for six (6) months thereafter the termination or expiry ofAgreement, the Customer wholly and irrevocably covenants, agrees, binds itself and guarantees to Grower not to directly or indirectly solicit, recruit, hire, attempt to recruit or entice any of the representatives, personnel or employees of Grower. Any breach of this Clause by the Customer shall
(i) entitle Grower to charge a penalty equal to the Fees payable over a 18-month period and/or
(ii) be considered a breach of the Agreement and entitle Grower to any legal action pursuant thereof.
14.2 Waiver.
No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy.
14.3 Entire agreement.
The Terms and Conditions, the OrderForm(s) and the documents annexed as appendices to the Terms and Conditions or otherwise referred to herein, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.4 Variation.
No variation of the Agreement shall be effective unless it is in writing and signed by the Parties’ authorized representatives.
14.5 Severance.
If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, tothe extent required, be deemed to be deleted, and the validity and enforce ability of the other provisions of the Agreement shall not be affected.
14.6 Assignment.
The Agreement is not assignable by either Party, whether by operation of law or otherwise, without the prior written consent of the other Party (which shall not be unreasonably withheld or delayed); provided, however, that either Party may assign the Agreement as part of a transfer of all or substantially all of the assets of the transferringParty to any third-party (including by operation of a merger, acquisition, or other combination), by providing written notice of such assignment to the otherParty. Any purported assignment in violation of this provision shall be void and of no effect.
14.7 Third-party rights.
The Parties confirm their intent not to confer any rights on any third parties by virtue of the Agreement.
14.8 No partnership or agency.
Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
14.9 Force majeure.
Each Party shall be excused performance of its obligations under or pursuant to the Agreement if and to the extent that its performance is delayed, hindered or prevented by any circumstances beyond its reasonable control including (but not limited to) acts of God or the public enemy, war, riots, fire, explosion, terrorist acts, natural disasters, floods, government action, telecommunications failures,Internet service provider or hosting facility failure, and denial of service attacks, strikes and seriously adverse weather conditions. Either Party may terminate the Agreement upon written notice to the other Party if the force majeure event continues for more than thirty (60) days.
Notices. All Notices shall be in writing and sent to the other Party marked for the attention of the person at the address set forth below or as otherwise notified in writing from time to time. Any notice or other document correctly addressed shall be deemed delivered (i) immediately if sent by email or (ii) in five business days following the date of dispatch by first-class mail, on the date of confirmed delivery by a international recognized courier service, with all delivery charges prepaid or on the date of delivery as confirmed by the signature of the recipient for special or signed for delivery or (iii) delivery by hand. Notices to Customer shall be delivered to the attention of theCustomer’s representative at the address indicated on the applicable OrderForm. Notices to Grower shall be delivered to the attention of Finance Department at the address indicated on the applicableOrder Form with a copy to the CEO at Dubai Media City, DMC building 5, GF VD-G00-765, Dubai, United ArabEmirates.
14.10 Governing law and jurisdiction.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the laws referred to under the Order Form.
Exhibit A - Terms of Use
Use of the Services.
In these Terms ofUse, “you” means Customer.If you have a valid verification code received from your company or login details received from Grower and/or its affiliates, provided that you comply with these Terms of Use and theAgreement, Grower grants you a personal, non-exclusive, non-transferable, limited right to enter and use the Services during the applicable SubscriptionTerm.Unless otherwise specified, the Services are primary a marketing technology solution that allows companies to streamline their operations, centralize their data, optimize their campaigns, reduce their costs and increase their ROI. You will not use theServices for any purpose that is unlawful or prohibited by the Terms of Use.You may not use the Services in any manner that could damage, disable, overburden, or impair any technology used in providing the Services (such as its servers, network(s) or other related technology to the Services).You may not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through the Services.
Member Account,Password, and Security
If any of the Services requires you to open an account, you must complete the registration process by providing your current, complete and accurate information as prompted by the applicable registration form. You will also choose a password and a username.You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Grower immediately of any unauthorized use of your account or any other actual or suspected breach of security that you become aware of. You may not use anyone else’s account at any time.
Materials provided to the Service
Grower and its contractors involved in providing the Services do not claim ownership of the materials you provide to the Services. By uploading, inputting, providing or submitting your materials you represent and warrant that you own or otherwise control all of the rights to your materials as described in these Terms of Use including, without limitation, all the rights necessary for you to provide, upload, input or submit the materials.
Intellectual property
All rights, title and interest in and to the Services including patents, copyrights, trademarks, trade names, service marks, designs, media, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by, or licensed to Grower.
Exhibit B - Customer Support Description
Problem Resolution.
Customer will promptly report to Grower any problems arising in the Services or Documentation and will provide assistance or information as may reasonably be required by Grower in relation to the diagnosis of such problems. When a problem is an instance of non-conformance of the Services to the Documentation it will be rated with a priority level in accordance with the Grower standard operating procedures for customer support and responded to in accordance with the timescales and with the resources allocated for the assigned priority level.
Services Updates.
Grower may, from time to time, during the Subscription Term, provide Updates to the Services, and make them available to Customer. Where possible, Grower shall inform Customer of any Update at least 24 hours prior to when an Update is to be applied to the Services.
Customer Support Contacts and Hours.
Grower will respond to Customer’s requests related to reported problems via telephone or email between the hours of 9:00 a.m. and 5:00 p.m. (local time of the Grower location set forth on the applicable Order Form) Monday through Friday, excluding holidays. A list of standard holidays will be provided to Customer upon request. Customer may contact Grower’s Customer Support team by phone or email designated by Grower which shall be provided to Customer upon Services purchase or activation.
Preventive Maintenance, Scheduled Downtime and Service Availability.
Grower will deliver on a regular basis new patches, bug fixes and updates for the Services (Preventive Maintenance). Grower will inform the Customers about the regular Preventive Maintenance hours if Grower is of the opinion that it may interrupt the use of the Services. Scheduled downtime will be scheduled to occur on weekends and holidays whenever possible. The total amount of scheduled downtime will not exceed twenty-four (24) hours during any year and otherwise availability of the Services shall be as set forth in the Product Security Features Description. No individual period of scheduled downtime shall exceed four (4) hours. Grower will use commercially reasonable efforts to provide Customer with immediate e-mail notification to the point of contact set forth in the electronic record of User registration for the Services as soon as it becomes aware of any actual or potential unscheduled downtime of the Services that is expected to last more than two (2) hours, as well as continual periodic updates during the unscheduled downtime regarding Grower’s progress in remedying the unavailability and the estimated time that the Services will next be available. Exclusions. Grower shall have no obligation to provide support or remedy Services performance issues if the issue arises from: (a) factors outside Grower’ direct and reasonable control, including any force majeure event; (c) Customer’s failure to maintain the necessary conditions for use of the Services as provided in the Documentation; (d) Customer’s use of the Services in combination with any equipment or product not provided by Grower or not designated by Grower in writing for use with the Services, or any fault in any such non-Grower equipment or product; (e) any breach of the Customer's obligations under the Agreement howsoever arising; or (f) User error.
Exhibit C - Data Protection Addendum (DPA)
Personal Data. If the Customer submits any Customer Data that comprises Personal Data to the Services, Customer agrees that it acts as Data Controller under applicable Data Protection Laws and Regulations and Grower and/or its Affiliates act as individual Data Processors on behalf of Customer.
Data Protection. Each party shall comply with Data Protection Laws and Regulations in connection with its obligations under this Data Protection Addendum (DPA).
Description of processing. The processing of Personal Data shall be for the duration of the Agreement, for the purpose of providing the Services, and include categories of personal data consisting of basic contact information of Customer’s representatives such as first name, last name and email address.
Processing Terms. When processing personal data on behalf of Customer, Grower shall:
i. only process personal data on Customer’s written instructions, unless required otherwise by applicable Data Protection Laws and Regulations;
ii. ensure that all Grower personnel, who have access to personal data, are subject to suitable confidentiality obligations;
iii. implement and maintain reasonable technical and organizational measures designed to prevent personal data breach, and if it becomes aware of personal data breach Grower shall notify Customer without undue delay;
iv. be generally authorized to use subprocessors, provided that Grower shall remain fully liable for any of its subprocessors, and, in addition, shall use reasonable endeavors to notifyCustomer of any changes to its subprocessors, and take into account any reasonable objections of Customer in relation to such changes. Upon Customer’s request, Grower shall provide Customer with the list of subcontractors authorized to access Personal Data in connection with the Agreement. The parties acknowledge that Grower engages subcontractors qualified to support offerings that are made generally available to Grower customers, including theServices, and that selection of subcontractors is not a customizable part of Grower’s offerings.
v. taking into account the nature of the processing, at Customer’s cost and expense, assist Customer by appropriate technical and organizational measures, insofar as this is possible, provide such assistance as Customer may reasonably request to meet its obligations under Data Protection Laws and Regulations in responding to requests from data subjects exercising their rights under Data Protection Laws and Regulations;
vi. taking into account the nature of the processing and information available to Grower, at Customer’s cost and expense, provide reasonable assistance to Customer in meeting its obligations under Data Protection Laws and Regulations relating to security, personal data breach notification, data protection impact assessments and prior consultation with supervisory authorities;
vii. at the choice ofCustomer, delete or return all Personal Data on Customer’s request or the termination of the Agreement unless required otherwise by applicable DataProtection Laws and Regulations; and
viii. upon request and atCustomer’s cost and expense, make available to Customer, for inspection on Grower’s premises only, the information necessary to demonstrate compliance with the obligations set out in this DPA and allow for and contribute to audits conducted by Customer or another auditor mandated by Customer and approved by Grower, provided that Customer gives Grower at least thirty (30) days’ prior written notice of its intention to carry out an audit. This notice shall include a detailed work plan for the audit. Any third party involved in the audit must agree to Grower’s confidentiality undertakings. All reports, materials or other information produced by Grower or a subprocessor during the course of the auditor otherwise resulting from the audit, will be the Confidential Information of Grower and subject to the provisions of the Agreement.
International Transfers.
i. Grower shall be entitled to transfer Personal Data from one country to another country in connection with providing the Services provided there is a lawful basis to do so. If requested by either Party, the Parties shall do all things reasonably necessary to give effect to such transfer, including updating the DPA or putting in place another data transfer mechanism appropriate to comply withData Protection Laws and Regulations.
ii. Any transfer ofPersonal Data subject to the General Data Protection Regulation of the EuropeanUnion to a jurisdiction that is not within the European Economic Area will be governed by the terms of the Standard Contractual Clauses for processors approved by the European Commission which are incorporated herein by reference.
iii. Any transfer ofPersonal Data subject to the GDPR to another jurisdiction will be governed by the applicable contractual clauses most recently approved by the privacy regulator for transfer of Personal Data, unless another legal mechanism for the transfer applies.
iv. Any other international transfer of Personal Data requiring a data transfer agreement containing specific terms under Data Protection Laws and Regulations will be governed by such terms.
Definitions.
“Data Controller” means a natural or legal person, public authority, agency or any other body who alone or jointly with others determines the purposes and means of the processing ofPersonal Data.
“Data Processor” meansA natural or legal person, public authority, agency or any other body who processes Personal Data on behalf of the Data Controller.
“Data Protection Laws and Regulations” means all applicable laws and regulations for a particular country/ jurisdiction regarding the processing of Personal Data as may be revised or updated from time to time.“data subject” means any natural person and/ or juristic person (i.e. a body of persons, a corporation, a partnership, or other legal entity that is recognized under applicable Data Protection Law as the subject of rights and duties) whose personal data is being collected, held or processed;
“processing” means any operation or set of operations performed on Personal Data,
“personal data breach”means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data.