Effective Date: October 30, 2023
Section numbering change on February 29, 2024
The Services include access to the Platform and managed services such as survey design, programming, translation, data analysis, reporting, participant recruitment, advertising effectiveness campaigns, and related research services specified in applicable Orders or technical support.
Customers gain access by executing an Order, agreeing to pay applicable Fees, and satisfying credit verification processes.
Grow Progress will attempt to maintain 24/7 Platform availability except for: scheduled maintenance (with 3+ days notice) or emergency maintenance (with 24-hour notice when possible), and circumstances beyond reasonable control including Force Majeure Events.
Scheduled maintenance requires at least three days advance written notice. Emergency maintenance receives 24-hour notice when commercially reasonable.
Grow Progress may suspend or terminate access by revoking integration keys or restricting logins following security breaches, to protect infrastructure, per governmental requirement, if users cause technical problems, upon subscription expiration, or as otherwise permitted.
Grow Progress may provide Updates without charge, which become part of the Services, with no obligation to provide them and no material reduction in aggregate functionality.
Use restrictions prohibit service bureau use, reselling, renting, distributing, sublicensing, or commercially exploiting the Services or Grow Progress Technology. Additionally prohibited:
Customers represent and warrant they will:
Customers acknowledge:
Customers authorizing Users acknowledge those Users may act on their behalf, provide information, and bind the Customer regarding Services. Customers remain solely responsible for all account actions, which are deemed Customer-authorized regardless of Customer knowledge. Customers are responsible for ensuring User compliance with the Agreement, Grow Progress policies, and applicable law, and remain liable for acts/omissions of any third party granted access.
Customers must maintain security of their Operating Environment, credentials, passwords and files, including uploads to the Service. Grow Progress is not responsible for access/use issues arising from Operating Environment problems.
Customers and Users must adhere to Grow Progress's Code of Conduct while using the Platform, as education and awareness efforts are required. The Code is available at: growprogress.ai/code-of-conduct.
Customers acknowledge all Intellectual Property Rights in the Services, Platform, Grow Progress Technology, and proprietary voter models are owned by Grow Progress, its licensors or suppliers. During the Subscription Term, Grow Progress grants limited, revocable access and use rights. Customers shall not: exploit Services except as provided; modify or create derivative works; disassemble, decompile or reverse engineer; or modify/obscure proprietary notices.
Customers retain all rights in content or data uploaded using Services ("Customer Data"). Grow Progress owns all other content. Customers grant Grow Progress a worldwide, non-exclusive, irrevocable, transferable, sublicensable, royalty-free license to use, copy, modify, transmit, display, perform and distribute Customer Data including logos, trademarks and service marks for internal business/development purposes, service provision, or addressing service/technical problems, or as required by law.
Grow Progress owns and retains all rights in products, information, data or results created/delivered pursuant to Services and information/data generated by Customer using Services ("Product Data"). Grow Progress grants Customers limited, non-exclusive, non-transferable, non-sublicensable license to use applicable Product Data as determined by Grow Progress, subject to Agreement terms. Product Data includes Respondent Data and Opinion Measurement Data.
Grow Progress may collect and use Service Data to develop, improve, support and operate Services. Grow Progress may not share Service Data including Customer Confidential Information with third parties except per Section 4 (Confidentiality) or where aggregated/anonymized such that Customer and Users cannot be identified.
Customers and Users granting suggestions, comments or feedback regarding Services or Grow Progress Technology grant a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license for unrestricted use.
Neither Party shall issue announcements, press releases or marketing materials relating to the Agreement or use the other Party's marks/logos without prior written consent, except as required by law or stock exchange requirements. Grow Progress may use Customer company names and logos as references for marketing/promotional purposes on websites and public/private communications with existing/potential customers, subject to standard trademark usage guidelines.
"Confidential Information" means confidential information one Party ("Disclosing Party") discloses to another ("Receiving Party"), orally or in writing, designated as confidential or reasonably understood as confidential given nature and disclosure circumstances. Exceptions include information that: is/becomes publicly known without breach; was known prior without breach; is received from third parties without breach; or was independently developed without access/use of Disclosing Party's information.
Except as written permission allows, Receiving Parties must use the same care protecting confidentiality as protecting their own information (but no less than reasonable care), not disclose/use Confidential Information outside Agreement scope, and disclose only to employees, contractors and agents needing access with signed confidentiality agreements containing equal or greater protections.
Receiving Parties acknowledge unauthorized disclosure may cause irreparable harm. Disclosing Parties may seek equitable relief including injunctions plus other remedies. Receiving Parties must immediately notify (within 24 hours) upon awareness of threatened, suspected or actual breaches.
Receiving Parties shall not voluntarily provide Confidential Information unless written authorization exists. However, if required by court order (including subpoena) or regulatory authority, Receiving Parties must: immediately notify Disclosing Party; consult regarding responses; cooperate with reasonable requests to quash/modify orders; and provide copies of proposed responses upon request before providing information.
To use Services, Customers acknowledge and warrant compliance with these Terms and Applicable Law:
Customers are solely responsible for compliance with applicable laws, rules and regulations affecting their business and any Services use. Customers are responsible for ensuring employees, contractors and Users comply with applicable laws including intellectual property and third-party rights.
Grow Progress may make the Persuasion Library available allowing Customers to run tests and optionally publish results accessible to other users. Customers acknowledge sharing is not mandatory and access is not conditioned on sharing. Publishing information makes it Customer Data per Section 3(b) with Grow Progress license. Customers further acknowledge:
Customers accessing Persuasion Library information acknowledge it belongs to third parties and publication does not constitute Grow Progress endorsement. Information is available for personal use only; reliance is at Customer risk. Customers are prohibited from copying, reproducing, distributing or sharing third-party content without prior written owner and Grow Progress consent.
Customers are responsible for ensuring Persuasion Library posting/use complies with applicable law including FEC regulations, election laws, federal campaign finance rules and firewall/coordinated communication regulations. Customers agree to defend, indemnify and hold Grow Progress harmless for Section violations.
Customers will pay applicable Fees per these Terms and applicable Orders. Any costs/fees for Fee payment must be paid by Customers. If Customer Services use exceeds capacity/usage limitations (if set forth in Orders) or requires additional fees per Agreement, Customers will be billed and agree to pay additionally per provided terms. To full legal extent permitted, paid Fees are non-refundable and Grow Progress does not provide refunds/credits for cancellations during Subscription Terms.
Except as Orders provide, all Fees must be paid in U.S. dollars within thirty (30) days of invoice. Customers believing incorrect billing must contact Grow Progress within thirty (30) days of invoice at billing@growprogress.ai describing requested correction nature/amount. Otherwise, invoices are final. Unpaid undisputed amounts are subject to 1.5% monthly finance charges on outstanding balances (or maximum permitted by law, whichever is lower), plus collection expenses. Grow Progress reserves right to suspend/terminate Customer Services access due to non-payment at sole discretion.
Customers agree Fees and other charges are exclusive of applicable taxes. Customers acknowledge responsibility for all transaction taxes on Services use, including sales, use, excise, VAT, GST, consumption, business and service taxes.
Grow Progress reserves right to change Fees/applicable charges or institute new charges/Fees at ongoing Subscription Term end, with thirty (30) days prior Customer notice (which may be email).
Unless Orders specify otherwise, these Terms commence on the earliest of: Customer's first Platform access date; Order execution date; or other initial Terms agreement date (the "Effective Date"). Agreement terms continue through the Subscription Term or earlier last Order termination. Except as Orders provide, subscriptions automatically renew for periods equal to then-expiring Subscription Terms. Customers may cancel automatic Subscription Term renewals by providing written non-renewal notice at least thirty (30) days before relevant Subscription Term end.
In addition to other remedies available, material Agreement breaches entitle non-breaching Parties to written breach notice, with breaching Parties having thirty (30) days to materially cure (where remedial). For breaches of Sections 2 (Restrictions and Responsibilities), 4 (Confidentiality), 5 (Privacy and Data), non-payment exceeding sixty (60) days, or other Services misuse, Grow Progress may terminate immediately.
Grow Progress may terminate this Agreement or suspend/limit Customer Services access/use without responsibility/liability to Customer or third parties if:
Upon termination, Customer access/use rights immediately cease, and Grow Progress has no obligation storing, maintaining, forwarding or restoring data except Customer previously downloaded data. Termination shall not affect: Party obligations accounting for/paying owed amounts for pre/post-notice Platform activity; or other Agreement obligations/liabilities reasonably surviving termination. For clarity, no Agreement Fees are refundable except as Section 10(b), subsection (c) provides.
Customers represent and warrant: valid Agreement entry with legal authority to do so; Customer and User Services access/use compliance only in strict Applicable Laws and Grow Progress published Terms of Use compliance. Not more than annually at Grow Progress's own expense, it reserves right to audit Customer warranty compliance per Section 9, with Customers providing relevant documentation.
Services, including Platform and Product Data, are provided "AS IS" and "AS AVAILABLE" with "ALL FAULTS" and without any warranties. To full legal extent permitted, Grow Progress disclaims all warranties/representations, express, implied or statutory, including MERCHANTABILITY, PARTICULAR PURPOSE FITNESS, ACCURACY and SYSTEM INTEGRATION/COMPATIBILITY WARRANTIES. Without limiting the foregoing, Grow Progress does not warrant Services will be continuous, secure, reliable, accessible, uninterrupted or error-free. Services may have inherent Internet/electronic communications limitations, delays and problems. Grow Progress is not responsible for delays, delivery failures or damage resulting from problems beyond its control.
Customers shall indemnify and hold Grow Progress, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorney fees and defense costs) and defend against actions, suits, litigation, claims, demands, arbitration or proceedings, and threats thereof, resulting from:
Subject to lawful Services use, Grow Progress shall defend Customers and Affiliates, officers, directors, employees, attorneys and agents from third-party claims alleging Services or Product Data, when used as Agreement-authorized, infringe U.S. patents, copyrights or trademarks, and indemnify and hold harmless from damages/costs awarded against Customers or agreed in Grow Progress settlement (including reasonable attorney fees) resulting from such claims. If Customer Services or Product Data use is (or Grow Progress believes likely is) enjoined, required by settlement, or Grow Progress determines reasonably necessary avoiding material liability, Grow Progress may: (a) substitute substantially functionally similar products/services; (b) procure rights for continued Services/Product Data use; or if (a) and (b) are not commercially reasonable, (c) terminate Agreement and refund Customers' prepaid but unused Services/Product Data Fees. Grow Progress indemnification will not apply where claims are attributable to: (1) Grow Progress-party-other modifications of Services/Product Data or based on Customer specifications/requirements; (2) Services/Product Data combination with non-Grow Progress licensed/procured products/processes; (3) Unauthorized Customer or User Services/Product Data use; or (4) Customer Data-resulting claims or non-Grow Progress provided components/deliverables. THIS SECTION SETS FORTH GROW PROGRESS'S SOLE LIABILITY AND CUSTOMER'S SOLE/EXCLUSIVE REMEDY REGARDING INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
Upon potential indemnity obligation, indemnified Parties shall: (i) promptly give written claim notice to indemnifying Parties; (ii) allow indemnifying Parties sole claim defense/settlement control (provided indemnifying Parties may not settle/defend unless unconditionally releasing indemnified Parties of all liability); and (iii) upon indemnifying Party request, cooperate reasonably at indemnifying Party cost/expense with investigation, trial, and defense, and appeal. Section 10 indemnification obligations are expressly conditioned on indemnified Party Agreement Section 10(c) compliance except failure to notify indemnifying Parties shall not relieve obligations but claims shall be reduced by damages attributable to failure.
Grow Progress, directors, shareholders, employees, agents, partners, suppliers or Affiliates shall not be liable under contract, tort, strict liability, negligence or any legal/equitable theory regarding Agreement subject matter for: (A) CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT or PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOSSES/DAMAGES RESULTING FROM INCONVENIENCE, DELAY or INFORMATION/DATA/GROW PROGRESS TECHNOLOGY/RELATED SERVICES USE LOSS, EVEN IF GROW PROGRESS WAS ADVISED OF SUCH DAMAGES/LOSSES POSSIBILITY; (B) BUGS, VIRUSES, TROJAN HORSES OR SIMILAR (REGARDLESS OF SOURCE); (C) FORCE MAJEURE EVENT-CAUSED DELAY/FAILURE; (D) LIABILITY TO CUSTOMER-CONTRIBUTION EXTENT; or (E) ANYTHING CUSTOMER HAS KNOWN LONGER THAN SIX (6) MONTHS AND HAS NOT COMMENCED COURT CLAIMS.
NOTWITHSTANDING ANYTHING CONTRARY, EITHER PARTY'S MAXIMUM LIABILITY TO THE OTHER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF ACTION FORM, SHALL AT ALL TIMES BE LIMITED TO AMOUNTS YOU PAID US DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING CLAIM NOTICE. NOTWITHSTANDING FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE EXTENT LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY'S AGREEMENT FAILURE.
Section 11(b) LIMITATION OF LIABILITY SHALL NOT APPLY TO (I) AGREEMENT FEES DUE, (II) SECTIONS 2, 4, OR 5 BREACHES, OR (III) EITHER PARTY'S SECTION 10 INDEMNITY OBLIGATIONS.
Except as Agreement specifies, all notices, demands or communications under these Terms shall be written and deemed delivered when: personally delivered to a Party; sent via reputable express courier (charges prepaid); or mailed via certified/registered mail, return receipt requested, postage prepaid, to Party Order addresses or any other address Parties have written-notice identified at least thirty (30) days prior.
These Terms, any Orders, and Parties-posted policies or Services-related operating rules constitute the entire understanding between Parties.
This Agreement and related disputes will be governed by District of Columbia, United States law, without conflicts of law principles and excluding the U.N. International Sale of Goods Convention. Parties agree maintaining dispute confidentiality, including informal negotiations, mediation or arbitration, except as necessary for dispute resolution procedures or unless required by law/judicial decision. Except as provided, each Party shall provide written dispute-issue notice to the other (referencing specific allegedly-breached contract portions) before seeking mediation, arbitration or legal relief. Within thirty (30) days, knowledgeable Party executives shall hold at least one meeting (in-person or by video-/teleconference) attempting good faith dispute resolution. Except as provided, any disputes, claims or controversies arising from/relating to this Agreement shall be submitted to Judicial Arbitration/Mediation Services ("JAMS") for pre-arbitration mediation before other legal relief. Mediation commences via JAMS written request specifying dispute subjects and requested relief. Parties will cooperate selecting a single mediator and scheduling mediation within forty-five (45) days following request. Mediators shall be retired judges with technology dispute experience but lacking punitive/exemplary damages authority. Parties agree good faith participation and equal cost-sharing. Mediation will occur in the District of Columbia. Dispute resolution procedures do not apply before seeking provisional remedies for misappropriation, intellectual property ownership, trade secrets or Confidential Information claims.
Parties are independent contractors. This Agreement does not create partnerships, franchises, joint ventures, agencies, fiduciary or employment relationships.
Customers may not assign rights or delegate obligations without prior written Grow Progress consent (not unreasonably withheld, conditioned or delayed). Violations are null/void. Grow Progress may assign this Agreement or rights to Affiliates or third parties with/without written Customer consent. This Agreement binds Party successors, legal representatives and permitted assigns.
Except as otherwise provided, each Party bears its performance obligation expenses.
If any provision is held by competent courts as contrary to law, courts shall modify provisions best accomplishing original objectives to full legal extent permitted, and remaining provisions shall remain effective.
Unless expressly provided, nothing in this Agreement confers rights, remedies, obligations or liabilities upon persons/entities other than Parties or permitted assigns, successors and legal representatives.
Unless expressly stated otherwise, all Terms-provided rights/remedies are cumulative, in addition to, and not in lieu of, other available remedies at law, equity or otherwise.
Except for Customer payment obligations, neither Party shall be liable for delays/failures resulting from causes/conditions beyond reasonable control including elements, fire, flood, severe weather, earthquakes, vandalism, accidents, sabotage, power failures, denial of service attacks, Internet failures, acts of God/public enemies, war, terrorism, riots, civil/public disturbances, strikes, lock-outs, labor disruptions, pandemics, epidemics, quarantine restrictions, or government/governmental body/authority laws, orders, rules, regulations, acts or restraints, including court orders/judgments (each a "Force Majeure Event"). Upon Force Majeure Event continuous occurrence exceeding three (3) months, either Party may terminate these Terms via written notice to the other.
Agreement headings are for reference only and shall not limit or otherwise affect meanings/interpretations.
Agreement questions should be directed to legal@growprogress.ai.
Grow Progress reserves right to modify these Terms and Conditions. Customers are responsible for regularly reviewing the Agreement. Continued Services use after modifications means Customers fully/unconditionally accept aforementioned modifications.