Terms of Service

These Terms of Service (the “Terms”) form a binding legal agreement between GrowthFactor, Inc. (“GrowthFactor,” “we,” “us”) and the entity or individual executing an Order Form that references these Terms (“Customer,” “you”).

BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING THE SERVICES, YOU: (A) CONFIRM THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER; AND (B) AGREE ON BEHALF OF THE CUSTOMER TO BE BOUND BY ALL PROVISIONS OF THESE TERMS.

If you do not agree to these Terms, do not execute an Order Form or use the Services. These Terms, together with any applicable Order Form, form the "Agreement."

1. Services Provided

GrowthFactor will provide the services as identified in each order form (the “Services”) entered into by the parties under this Agreement (each such order form, an “Order”). The parties may agree to enter into additional engagements for additional or different Services in separate Orders.

2. Term and Termination

2.1. 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 and end dates specified therein (an “Order Term”).

2.2. Termination for Cause. Either party may terminate this Agreement or any specific Order Form upon written notice if the other party:

(i) assigns or attempts to assign this Agreement or its obligations hereunder in violation of this Agreement;

(ii) fails to correct a material breach of its obligations under this Agreement (or the applicable Order Form) within thirty (30) days after receipt of written notification of such breach;

(iii) ceases to carry on business as a going concern; or

(iv) initiates a bankruptcy, reorganization, or insolvency proceeding, or has such a proceeding initiated against it which is not dismissed within sixty (60) days, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee.

2.3. Effect of Termination.

(a) Termination of Agreement. Upon the expiration or termination of this Agreement for any reason, all active Order Forms shall continue in full force and effect according to their own terms. This Agreement shall continue to apply to such active Order Forms until their completion, but no new Order Forms may be executed.

(b) Termination of an Order Form. Upon the expiration or termination of a specific Order Form, that Order Form shall terminate, but this Agreement and all other active Order Forms shall remain in full force and effect.

(c) Payment on Termination. In the event of any termination, Customer shall pay for all services performed and expenses incurred up to the effective date of termination.

2.4. Survival. The rights and obligations contained in Sections 2.3(c), 2.4, 4.3, 4.4, 5, 6, 7, 9, 10, 12, and 14 and Customer’s obligation to pay amounts due before the effective date of termination or expiration will survive any termination or expiration of this Agreement.

3. Notice

GrowthFactor may provide notices to you via email to the email address specified on the applicable Order Form, or through your account portal. Notices sent by email are deemed given upon the first business day after sending.

You must provide legal notices to GrowthFactor (a “Legal Notice”) in writing by overnight courier or certified mail to:

GrowthFactor, Inc.
Attn: Samuel Hall
255 Main Street
Suite 200
Cambridge, MA 02142

Email: sam@growthfactor.ai (Email alone is not sufficient for Legal Notice)

4. Fees and Payment Terms

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

4.2. Payment Method. Customer shall pay Fees either (a) via a manually-paid invoice or (b) via an automated payment method, as specified in the applicable Order Form or as otherwise selected by Customer in GrowthFactor’s online payment portal.

(a) Invoiced Payments. If Fees are to be paid by invoice, GrowthFactor shall invoice Customer for the Fees in the currency and at the frequency specified in the applicable Order Form. Unless otherwise specified in an Order Form, all invoices are due and payable within thirty (30) days of the invoice date ("Due Date").

(b) Automated Payments. If Customer elects to pay via an automated payment method (e.g., credit card, ACH transfer), Customer hereby authorizes GrowthFactor and its third-party payment processor (e.g., Stripe) to store Customer’s designated payment method information (the “Payment Method”) and to automatically charge such Payment Method for all Fees as they become due (e.g., on a monthly or annual recurring basis as set forth in the Order Form). Customer represents and warrants that it is authorized to use the designated Payment Method and shall, at all times, keep such Payment Method information current, complete, and valid. If a charge to the Payment Method is declined, GrowthFactor shall notify Customer and may re-attempt the charge.

4.3. Late Payments. Any Fees not paid by the Due Date (for Invoiced Payments) or that are declined or reversed (for Automated Payments) 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.

4.4. 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.

4.5. Fee Changes. GrowthFactor may change its standard rates for Services upon sixty (60) days prior written notice. However, any such fee changes shall not apply to any Order Form in effect during its then-current Order Term. New rates shall 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.

5. Confidential Information

5.1. Definition. For the purposes of this Agreement, “Confidential Information” includes any information, technical data, or know-how concerning either party, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances, and the relationship between the parties as evidenced by this Agreement. Confidential Information also includes any materials or information provided by either party to the other that are identified by the disclosing party as confidential or proprietary, or that the receiving party should reasonably understand to be confidential and proprietary. 

5.2 Exclusions. Confidential Information does not include information that: (i) was in the public domain at the time the receiving party received it; (ii) comes into the public domain after the receiving party received it through no fault of the receiving party; (iii) the receiving party received from a third party without breach of the receiving party’s or third party’s confidentiality obligations; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information; or (v) the receiving party is required by law to disclose. For the avoidance of doubt, the terms and conditions of this Agreement will be considered Confidential Information of both parties.

5.3. Obligations. Each party (the “Receiving Party”) agrees:

(a) Use and Standard of Care. To use the Confidential Information of the other party (the “Disclosing Party”) solely for the purpose of exercising its rights and performing its obligations under this Agreement and not to use it for any other purpose. The Receiving Party will use the same degree of care to protect the Disclosing Party’s 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).

(b) Disclosure. Not to disclose the Disclosing Party’s Confidential Information to any third party except as permitted by this Agreement. A Receiving Party may disclose Confidential Information only to its employees, directors, consultants, and subcontractors (collectively, “Representatives”) who have a "need to know" such information for the purposes of this Agreement, provided that such Representatives are bound by written confidentiality obligations at least as restrictive as those in this Section.

(c) Liability. The Receiving Party shall be responsible and liable for any breach of these confidentiality obligations by any of its Representatives.

5.4. Compelled Disclosure. If the Receiving Party is required by law, regulation, or a valid court order to disclose any Confidential Information, it shall (to the extent legally permitted) provide the Disclosing Party with prompt written notice of such requirement before the disclosure. The Receiving Party shall only disclose the minimum portion of the Confidential Information legally required and shall cooperate with the Disclosing Party, at the Disclosing Party’s expense, in any efforts to obtain a protective order or otherwise prevent or limit the disclosure.

5.5. Return or Destruction. Upon the termination or expiration of this Agreement, or upon the written request of the Disclosing Party, the Receiving Party shall promptly (i) return to the Disclosing Party or (ii) destroy, at the Disclosing Party's option, all tangible materials containing Confidential Information and erase all electronic versions, provided that the Receiving Party may retain one copy in its secure, confidential legal files solely for archival or compliance purposes.

5.6. Duration. The obligations of confidentiality set forth in this Section 5 shall survive and continue for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that 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.

6. Data Protection and Privacy

6.1. Roles and Compliance. The parties acknowledge that in the performance of this Agreement, each party may be a "Data Controller" or "Data Processor" (as such terms are defined in applicable data protection laws). Each party agrees to comply with all applicable data protection laws and regulations.

6.2. 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. The terms of the Data Processing Addendum ("DPA"), located at https://www.growthfactor.ai/data-processing-addendum, are hereby incorporated by reference and shall govern all such processing. GrowthFactor shall only process Customer Data in accordance with the DPA and Customer’s lawful instructions.

6.3. GrowthFactor Privacy Policy. GrowthFactor's Privacy Policy (available at: https://www.privacyboard.co/company/growthfactor?tab=privacy-policy) describes how GrowthFactor collects, uses, and protects Personal Data for which GrowthFactor is a Data Controller (such as the business contact information of Customer’s employees and representatives who interact with GrowthFactor).

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

7. Intellectual Property

7.1. 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 and fulfilling its obligations under this Agreement.

7.2. 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”).

7.3. 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.

7.4. Ownership of Outputs. Notwithstanding Section 7.3, 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 (except to provide them to Customer) and shall treat such Outputs as Customer's Confidential Information.

7.5. 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:

(a) 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.

7.6. Use of Outputs. For the avoidance of doubt, Customer's ownership rights in its Outputs, as set forth in Section 7.4, are perpetual, and Customer may use such Outputs for its internal business purposes indefinitely, surviving the expiration or termination of any Order Term.

7.7. 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.

8. Publicity

Customer grants GrowthFactor a non-exclusive, worldwide, royalty-free license to use Customer's name, logo, and trademarks (collectively, “Customer Marks”) on GrowthFactor's website, in customer lists, and in other marketing, sales, and investor presentations.

GrowthFactor's use of the Customer Marks shall be in accordance with any reasonable trademark usage guidelines that Customer may provide to GrowthFactor in writing. GrowthFactor agrees that it will not use the Customer Marks in any manner that would harm, disparage, or reflect negatively upon Customer's brand or reputation.

9. Liability and Indemnification

9.1. 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.

9.2. 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:

(a) the Customer IP (e.g., alleging that Customer Data infringes a third party's privacy or intellectual property rights);

(b) Customer's use of the Outputs in a manner that violates applicable law or in breach of this Agreement; or

(c) Customer's gross negligence or willful misconduct.

9.3. 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.

9.4. Limitation of Liability.

(a) Liability Cap. EXCEPT FOR THE "EXCLUDED CLAIMS" (AS DEFINED IN SECTION 9.4(B)), THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) ARISING OUT OF OR IN ANY WAY 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.

(b) Excluded Claims. "Excluded Claims" means: (i) a party's indemnification obligations under Section 9; (ii) liability arising from a party's gross negligence or willful misconduct; or (iii) Customer's non-negotiable obligation to pay all undisputed Fees due under this Agreement. 

(c) Super Cap. NOTWITHSTANDING SECTION 9.4(A), LIABILITY ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 5) OR DATA PROTECTION OBLIGATIONS (SECTION 6) SHALL BE LIMITED TO THREE TIMES (3X) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO GROWTHFACTOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.5. Basis of the Bargain. 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.

10. Disclaimer

EXCEPT FOR THE EXPRESS WARRANTIES AND OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE SERVICES PROVIDED BY GROWTHFACTOR ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.

GROWTHFACTOR, AND ITS AFFILIATES, SUPPLIERS, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS, AND VENDORS, HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

GROWTHFACTOR DOES NOT WARRANT THAT THE SERVICES OR CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, WILL MEET CUSTOMER’S REQUIREMENTS, OR OPERATE IN COMBINATION WITH THIRD-PARTY SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GROWTHFACTOR OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.

11. Force Majeure

Neither party shall be liable for any failure or delay in performance under this Agreement (other than for a party’s payment obligations) due to any cause beyond its reasonable control, including, but not limited to, acts of God, acts of war or terrorism, acts of government, riots, labor strikes, fire, flood, earthquake, or pandemic (a “Force Majeure Event”). The delayed party shall give the other party prompt written notice of such event and use reasonable efforts to resume performance. If a Force Majeure Event continues for more than thirty (30) days, the non-delayed party may terminate this Agreement or the affected Order Form upon written notice.

12. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The parties agree that the exclusive jurisdiction and venue for any dispute resolution proceeding (including arbitration or any permitted court action) shall be in Suffolk County, Massachusetts.

13. Assignment

Customer may not assign this Agreement without the prior written consent of GrowthFactor. GrowthFactor may freely assign this Agreement in connection with a merger, reorganization, or sale of all or substantially all of its assets.

14. Miscellaneous

14.1. Changes to Terms. GrowthFactor may modify these Terms at any time by posting the updated version to its website and updating the "Last Updated" date. We 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 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

(a) Agreement to Arbitrate. All disputes, claims, or controversies arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, 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.

(b) Class Action Waiver. 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.

(c) Procedure. 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.

(d) Costs. The parties shall share equally the fees and costs of the arbitrator, and 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.

(e) Exceptions. 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.