Terms of Service

01.1

Binding Agreement and Acceptance

You accept these Terms of Service by checking the acceptance box and completing checkout, or by executing an Order Form that references these Terms. The individual accepting these Terms represents and warrants that they are authorized to bind Customer to this Agreement. If you do not agree to these Terms, do not accept them and do not use the Services. Your access to or use of the Services also constitutes acceptance of these Terms.

The parties consent to transact electronically. Customer's electronic acceptance of these Terms, together with the records maintained by GrowthFactor and its third-party payment processor (e.g., Stripe), satisfies any legal requirement that this Agreement be signed or be in writing, and constitutes admissible evidence of the parties' agreement and of the date and time of acceptance.

01.2

Services and Orders

GrowthFactor will provide the services identified in each Order Form (the "Services") entered into by the parties under this Agreement. The parties may agree to enter into additional engagements for additional or different Services in separate Orders.

"Order Form" (also "Order") means either (a) a written order document executed by the parties, or (b) an online subscription order placed by Customer through GrowthFactor's platform or its third-party payment processor (e.g., Stripe). For an online subscription order, the plan, seat quantity, Fees, billing frequency, and start date presented to Customer at checkout constitute the commercial terms of that Order. The Services included in each plan are described in the applicable Service Description, available at https://www.growthfactor.ai/plans, which forms part of this Agreement and is incorporated by reference.

02.1

Term

These Terms commence on the date you first accept them and remain in effect as long as any Order Form is active. Each Order Form will have the start date, and where applicable the end date, specified therein or presented at checkout (an "Order Term"). For month-to-month subscriptions, the Order Term is determined under Section 2.5.

02.2

Termination for Cause

Either party may terminate this Agreement or any specific Order Form upon written notice if the other party:

• Assigns or attempts to assign this Agreement or its obligations in violation of this Agreement
• Fails to correct a material breach within thirty (30) days after receipt of written notification
• Ceases to carry on business as a going concern
• Initiates bankruptcy, reorganization, or insolvency proceeding not dismissed within sixty (60) days

02.3

Effect of Termination

Upon expiration or termination of this Agreement, all active Order Forms shall continue in full force and effect. Upon termination of a specific Order Form, that Order Form terminates but this Agreement and all other active Order Forms remain in full force.

In the event of any termination, Customer shall pay for all services performed and expenses incurred up to the effective date of termination.

02.4

Survival

Sections 2.3, 2.4, 4.3, 4.4, 5, 6, 7, 9, 10, 12, and 14 survive termination or expiration of this Agreement.

02.5

Month-to-Month Orders

Where an Order specifies a month-to-month subscription, the Order Term consists of an initial one-month period beginning on the start date and automatically renews for successive one-month periods until terminated. Customer may terminate a month-to-month Order for convenience at any time, with termination effective at the end of the then-current monthly period, through the account portal (when available) or by written notice to GrowthFactor. GrowthFactor may terminate a month-to-month Order for convenience upon thirty (30) days' written notice. Fees for the current monthly period are non-refundable and are not prorated, and Services continue through the end of the paid period.

04.1

Fees

Customer shall pay GrowthFactor the fees, charges, and expenses specified in each applicable Order Form (the "Fees").

04.2

Payment Method

Fees may be paid either (a) via manually-paid invoice or (b) via automated payment method. Unless otherwise specified in an Order Form, all invoices are due and payable within thirty (30) days of the invoice date ("Due Date").

If Customer elects to pay via automated payment method (e.g., credit card, ACH transfer), Customer authorizes GrowthFactor and its third-party payment processor (e.g., Stripe) to store Payment Method information and automatically charge such Payment Method for all Fees as they become due. Customer represents and warrants that it is authorized to use the designated Payment Method and shall keep such Payment Method information current, complete, and valid.

For subscriptions paid via automated payment method, GrowthFactor (through its payment processor) charges the Payment Method in advance at the start of each billing period for the Fees due for that period.

04.3

Late Payments

Any Fees not paid by the Due Date or that are declined/reversed shall be subject to a late charge equal to the lesser of 1.5% per month or the maximum amount permitted by applicable law. GrowthFactor may, without limiting its other rights, suspend the performance of Services if any undisputed invoice or failed automated charge remains unpaid for more than thirty (30) days after Customer is notified.

04.4

Taxes

All Fees are exclusive of any sales, use, value-added, or other applicable taxes, tariffs, or duties ("Taxes"). Customer is solely responsible for the payment of all Taxes, excluding only taxes based on GrowthFactor's net income.

04.5

Fee Changes

GrowthFactor may change its standard rates for Services upon sixty (60) days prior written notice. Fee changes shall not apply to any Order Form in effect during its then-current Order Term. New rates apply only to (i) new Order Forms executed after the sixty (60) day notice period, or (ii) any renewal terms of an existing Order Form. For month-to-month Orders, each monthly renewal is treated as a renewal term for purposes of this Section, and a fee change applies at the first monthly renewal occurring after the sixty (60) day notice period.

05.1

Definition

However, the publicly posted version of these Terms of Service is not Confidential Information. The commercial terms set forth in any Order Form, including pricing and seat quantities, remain Confidential Information of both parties.

05.2

Exclusions

Confidential Information does not include information that:

• Was in the public domain at the time received
• Comes into the public domain after received through no fault of the receiving party
• The receiving party received from a third party without breach of confidentiality obligations
• Is independently developed by the receiving party without use of or reference to the Confidential Information
• The receiving party is required by law to disclose

05.3

Obligations

Each party agrees to use the Confidential Information solely for the purpose of exercising its rights and performing its obligations under this Agreement. Will use the same degree of care to protect the Confidential Information as it uses to protect its own Confidential Information of like nature (but in no case less than a reasonable degree of care).

May disclose only to employees, directors, consultants, and subcontractors (collectively, "Representatives") who have a "need to know" such information, provided that such Representatives are bound by written confidentiality obligations at least as restrictive. The Receiving Party shall be responsible and liable for any breach of these confidentiality obligations by any of its Representatives.

05.4

Compelled Disclosure

If required by law, regulation, or a valid court order to disclose any Confidential Information, shall (to the extent legally permitted) provide prompt written notice before the disclosure. Shall only disclose the minimum portion legally required and shall cooperate with the Disclosing Party, at the Disclosing Party's expense, in any efforts to obtain a protective order.

05.5

Return or Destruction

Upon termination or expiration of this Agreement, or upon written request, the Receiving Party shall promptly (i) return to the Disclosing Party or (ii) destroy all tangible materials containing Confidential Information. May retain one copy in its secure, confidential legal files solely for archival or compliance purposes.

05.6

Duration

The obligations of confidentiality shall survive and continue for a period of five (5) years following termination or expiration of this Agreement. For any Confidential Information that constitutes a "trade secret" under applicable law, the obligations shall continue for as long as such information remains a trade secret.

06.1

Roles and Compliance

The parties acknowledge that in the performance of this Agreement, each party may be a "Data Controller" or "Data Processor." Each party agrees to comply with all applicable data protection laws and regulations.

06.2

Processing of Customer Data

To the extent that GrowthFactor processes any Personal Data on behalf of Customer (the "Customer Data"), Customer is the Data Controller and GrowthFactor is the Data Processor. GrowthFactor shall only process Customer Data in accordance with the DPA and Customer's lawful instructions.

View the Data Processing Addendum

06.3

GrowthFactor Privacy Policy

GrowthFactor's Privacy Policy describes how GrowthFactor collects, uses, and protects Personal Data for which GrowthFactor is a Data Controller.

View Privacy Policy

06.4

Security

GrowthFactor shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Data from unauthorized access, use, alteration, or disclosure.

07.1

Customer Intellectual Property

Customer retains all right, title, and interest in and to all data and information provided by Customer to GrowthFactor ("Customer Data") as well as any other intellectual property owned by Customer (e.g., logos, trademarks) (collectively, "Customer IP"). Customer grants GrowthFactor a non-exclusive, worldwide, royalty-free license to use, copy, modify, process, and create derivative works of the Customer IP solely for the purpose of performing the Services.

07.2

GrowthFactor Intellectual Property

GrowthFactor retains all right, title, and interest in and to its proprietary platform, user interface (UI), software, tools, methodologies, pre-existing data models, and all intellectual property rights therein, including any modifications or enhancements thereto (the "GrowthFactor IP").

07.3

Custom Models

Customer acknowledges and agrees that any and all data models, algorithms, or other software developed, trained, or modified by GrowthFactor in the performance of the Services, even if developed specifically for Customer (the "Custom Models"), are the sole and exclusive property of GrowthFactor and shall be considered part of the GrowthFactor IP.

07.4

Ownership of Outputs

Customer shall own and retain all right, title, and interest in and to the specific reports, scores, insights, and other data outputs generated by the Custom Models from the Customer Data (the "Outputs"). GrowthFactor shall have no rights to use, disclose, or resell the Outputs and shall treat such Outputs as Customer's Confidential Information.

07.5

License to Customer

Subject to Customer's compliance with this Agreement and payment of all applicable Fees, GrowthFactor grants Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the applicable Order Term to access and use the GrowthFactor IP and the Custom Models solely via GrowthFactor's platform/UI for the purpose of generating, accessing, and downloading its Outputs.

07.6

Use of Outputs

Customer's ownership rights in its Outputs are perpetual. Customer may use such Outputs for its internal business purposes indefinitely, surviving the expiration or termination of any Order Term.

07.7

Feedback

Customer grants GrowthFactor a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users.

09.1

Indemnification by GrowthFactor

GrowthFactor shall defend, indemnify, and hold harmless Customer and its officers, directors, and employees from and against any third-party claims, liabilities, damages, and costs (including reasonable attorneys' fees) alleging that the GrowthFactor IP or Custom Models, when used as permitted by this Agreement, infringe upon any third-party's U.S. patent, copyright, or trademark.

GrowthFactor's obligations under this section are contingent upon Customer: (a) providing prompt written notice of the claim; (b) granting GrowthFactor sole control of the defense and settlement of the claim; and (c) providing reasonable cooperation in the defense.

09.2

Indemnification by Customer

Customer shall defend, indemnify, and hold harmless GrowthFactor and its officers, directors, and employees from and against any third-party claims, liabilities, damages, and costs (including reasonable attorneys' fees) arising from or related to:

• The Customer IP (e.g., alleging that Customer Data infringes a third party's privacy or intellectual property rights)
• Customer's use of the Outputs in a manner that violates applicable law or in breach of this Agreement
• Customer's gross negligence or willful misconduct

09.3

Disclaimer of Consequential Damages

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 5) OR A PARTY'S INDEMNIFICATION OBLIGATIONS (SECTIONS 9.1 AND 9.2), NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUE, OR PROFITS), WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

09.4

Limitation of Liability

THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO GROWTHFACTOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Excluded Claims include: indemnification obligations under Section 9, gross negligence or willful misconduct, and Customer's obligation to pay undisputed Fees. The Super Cap for confidentiality or data protection breaches is three times (3x) the twelve-month fee total.

Customer acknowledges that GrowthFactor has set its fees and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of damages set forth herein, and that these limitations form an essential basis of the bargain between the parties.

14.1

Changes to Terms

GrowthFactor may modify these Terms at any time by posting the updated version to its website and updating the "Effective Date." GrowthFactor will provide 30 days' notice of material changes (e.g., by email). Your continued use of the Services after such changes constitutes your acceptance.

14.2

Entire Agreement

These Terms, together with all active Order Forms (including online Orders) and the DPA, constitute the entire agreement between the parties regarding its subject matter and supersede all prior negotiations, agreements, and undertakings. This Agreement may be amended only as set forth in Section 14.1.

No provision of this Agreement shall be construed against any party by reason of such party having drafted it. A waiver by either party of a breach of any provision shall not constitute a waiver of the provision itself or any subsequent breach.

14.3

Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions of this Agreement shall remain in full force and effect.

14.4

Dispute Resolution by Binding Arbitration

All disputes, claims, or controversies arising out of or relating to this Agreement shall be determined by binding arbitration in Suffolk County, Massachusetts, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.

The parties agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action. The arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.

The arbitrator shall issue a reasoned written decision and award. The award of the arbitrator shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

The parties shall share equally the fees and costs of the arbitrator. Each party shall be responsible for its own attorneys' fees and costs, unless the arbitrator determines that a claim was frivolous or brought for an improper purpose.

Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of its copyrights, trademarks, trade secrets, patents, or other intellectual property rights.