We may collect personal information from you,meaning information about you that can uniquely identify you, such as your name, address, and email address, if you choose to provide us with such information. We may also collect information about you that does not uniquely identify you if you choose to provide us with such information. Additionally, when you access the Site using a mobile device, we may collect and process real-time information about the location of your device.
Grow may enable you to access social networks through the Site. If you access a social network through the Site, your use of the social network is governed by such social network’s terms and conditions and privacy policies. If you access a social network through the Site, you may be asked to grant Grow access to certain information from your social network profile, such as your friends or contacts lists, photographs, and updates. This information may be used by Grow to suggest new features and content that may be relevant to you, for statistical analysis, or for other business purposes.
When you visit the Site, we may also collect certain information by automated means, such as cookiesA “cookie” is a text file that websites send to a visitor’s computer or other Internet-connected device to uniquely identify the visitor’s browser or to store information or settings in the browser. We may also use third-party website analytics tools (such as Google Analytics) that collect information about user traffic on the Site. The information we may collect by automated means may include, but is not limited to, the following:
We may use your information to:
In addition to the uses described above, we may use the information collected through cookies to identify and authenticate visitors. We may also combine the information we collect with publicly available information, and with that of other users of the Site. For example, we may use your and other users’ non-identifiable, aggregated data to improve the services we offer, for statistical analysis, and for other business purposes.
We also may use the information we obtain about you in other ways for which we provide specific notice at the time of collection.
We may disclose aggregated information about our users without restriction. We may disclose your personal information to our subsidiaries and affiliates, or to contractors, service providers, and other third parties we use to support our business. Such third parties are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them. We may also disclose your personal information to: (i) comply with any court order, law, or legal process, including to respond to any government or regulatory request; (ii) enforce or apply our Terms of Service and other agreements; and/or (iii) if we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Grow, users of our Site, or others.
If you make a purchase on the Site, we will collect your credit or debit card number, expiration date, and other payment details (collectively, “Payment Information”). We may provide Payment Information and other personal information to our third party payment processors in order to complete purchases made on the Site. Pursuant to the “Information We Share” section above, our third party payment processors are bound by contractual obligations to keep such personal information confidential and use it only for the purposes for which we disclose it to them. However, we are not responsible for our third party payment processors’ use of any Payment Information or other personal information they collect in connection with your transactions on the Site.
We offer you the following choices about what information we collect from you and how we communicate with you:
Cookies. Most browsers will tell you how to stop accepting new cookies, how to be notified when you receive a new cookie, and how to disable existing cookies. Please note, however, that without cookies you may not be able to take full advantage of all of the Site’s features.
Marketing Emails. If we have sent you a marketing email, you may choose not to receive additional marketing emails from us by following the unsubscribe instructions contained in each email.
Location and Social Media Information. You can restrict Grow’s collection and use of real-time information about your mobile device’s location through your device’s privacy settings. You can restrict Grow’s access to your social network profile at any time by changing your social network privacy settings.
Web Analytics. You may opt-out of the aggregation and analysis of data collected about you on our Site by our web analytics vendor by visiting https://tools.google.com/dlpage/gaoptout and downloading and installing the Google Analytics Opt-out Browser Add-on.
You can review and change your personal information by logging into the Site and visiting your account profile page. Subject to applicable law, you may have certain additional rights to request access to and receive information about the personal information we maintain about you, update and correct inaccuracies in your personal information, and have your personal information blocked or deleted, as appropriate. For more information, please email us at email@example.com.
Grow has reasonable security measures in place in an effort to protect your personal information from loss, misuse, and unauthorized access, disclosure, alteration, and destruction. Please note that no electronic transmission of information can be entirely secure. We cannot guarantee that the security measures we have in place will never be defeated or fail, or that such measures will always be sufficient or effective. Any transmission of information is at your own risk. We are not responsible for circumvention of any Site privacy settings or our security measures.
The Site is not directed to, and Grow does not knowingly collect or solicit personal information from, children under the age of 13. If we learn we have collected or received personal information from a child under the age of 13, we will delete that information. If you believe we might have any information from or about a child under the age of 13, please contact us at firstname.lastname@example.org.
5314 River Run Dr., Suite 150
Provo, UT 84604
Privacy Shield Policy
This Privacy Shield Policy (“Policy”) describes how GROW Inc (“Grow”) and its subsidiaries and affiliates in the United States (“US”) (“Company,” “we,” or “us”) collect, use, and disclose certain personally identifiable information that we receive in the US from the European Economic Area (“EEA Personal Data”) and Switzerland (“CH Personal Data”) (collectively “EEA/CH Personal Data”).
Grow recognizes that the EEA has established strict protections regarding the handling of EEA Personal Data, including requirements to provide adequate protection for EEA Personal Data transferred outside of the EEA. To provide adequate protection for certain EEA/CH Personal Data about consumers/corporate customers/clients/suppliers/business partners received in the US, Grow has elected to self-certify to the EU-US Privacy Shield Framework and the Swiss-US Privacy Shield Framework administered by the US Department of Commerce (collectively “Privacy Shield”).
For purposes of enforcing compliance with the Privacy Shield, Grow is subject to the investigatory and enforcement authority of the US Federal Trade Commission. For more information about the Privacy Shield, see the US Department of Commerce’s Privacy Shield website located at: https://www.privacyshield.gov.
Personal Data Collection and Use
Grow will only process EEA/CH Personal Data in ways that are compatible with the purpose that Grow collected it for, or for purposes the individual later authorizes. Before we use your EEA/CH Personal Data for a purpose that is materially different than the purpose we collected it for or that you later authorized, we will provide you with the opportunity to opt out. Grow maintains reasonable procedures to help ensure that EEA/CH Personal Data is reliable for its intended use, accurate, complete, and current.
We may collect the following categories of sensitive EEA/CH Personal Data: information about customers,potential customers, prospects and partners. We process sensitive EEA/CH Personal Data for the following purposes: provide requested services; send emails or other information or materials requested; understand needs and interests and tailor the Site and our services accordingly; respond to questions and comments and provide customer support; communicate about our services, offers, and promotions; operate, evaluate, and improve our business and the services we offer; enforce our Terms of Service and other agreements; and comply with applicable legal requirements and industry standards. When we collect sensitive EEA/CH Personal Data, we will obtain your opt-in consent where the Privacy Shield requires, including if we disclose your sensitive EEA/CH Personal Data to third parties, or before we use your sensitive EEA/CH Personal Data for a different purpose than we collected it for or than you later authorized.
Data Transfers to Third Parties
Third-Party Agents or Service Providers. We may transfer EEA/CH Personal Data to our third-party agents or service providers who perform functions on our behalf. Where required by the Privacy Shield, we enter into written agreements with those third-party agents and service providers requiring them to provide the same level of protection the Privacy Shield requires and limiting their use of the data to the specified services provided on our behalf. We take reasonable and appropriate steps to ensure that third-party agents and service providers process EEA/CH Personal Data in accordance with our Privacy Shield obligations and to stop and remediate any unauthorized processing. Under certain circumstances, we may remain liable for the acts of our third-party agents or service providers who perform services on our behalf for their handling of EEA/CH Personal Data that we transfer to them.
Disclosures for National Security or Law Enforcement. Under certain circumstances, we may be required to disclose your EEA/CH Personal Data in response to valid requests by public authorities, including to meet national security or law enforcement requirements.
Grow maintains reasonable and appropriate security measures to protect EEA/CH Personal Data from loss, misuse, unauthorized access, disclosure, alteration, or destruction in accordance with the Privacy Shield.
You may have the right to access the EEA/CH Personal Data that we hold about you and to request that we correct, amend, or delete it if it is inaccurate or processed in violation of the Privacy Shield. These access rights may not apply in some cases, including where providing access is unreasonably burdensome or expensive under the circumstances or where it would violate the rights of someone other than the individual requesting access. If you would like to request access to, correction, amendment, or deletion of your EEA/CH Personal Data, you can submit a written request to the contact information provided below. We may request specific information from you to confirm your identity. In some circumstances we may charge a reasonable fee for access to your information.
Questions or Complaints
You can direct any questions or complaints about the use or disclosure of your EEA/CH Personal Data to us at email@example.com. You may also contact our EEA affiliate Grow International Limited at firstname.lastname@example.org with any questions or concerns. We will investigate and attempt to resolve any complaints or disputes regarding the use or disclosure of your EEA/CH Personal Data within 45 days of receiving your complaint. GROW Inc has further committed to cooperate with the panel established by the EU data protection authorities (DPAs) and the Swiss Federal Data Protection and Information Commissioner (FDPIC) with regard to unresolved Privacy Shield complaints concerning data transferred from the EU and Switzerland. For any unresolved complaints, we have agreed to cooperate with the United Kingdom Information Commissioner Office (“ICO”). If you are unsatisfied with the resolution of your complaint, you may contact the ICO athttps://ico.org.uk/concerns/ for further information and assistance.
Binding Arbitration. You may have the option to select binding arbitration for the resolution of your complaint under certain circumstances, provided you have taken the following steps: (1) raised your complaint directly with GROW and provided us the opportunity to resolve the issue; (2) made use of the independent dispute resolution mechanism identified above; and (3) raised the issue through the relevant data protection authority and allowed the US Department of Commerce an opportunity to resolve the complaint at no cost to you. For more information on binding arbitration, see US Department of Commerce’s Privacy Shield Framework: Annex I (Binding Arbitration).
If you have any questions about this Policy or would like to request access to your EEA/CH Personal Data,please contact us as follows: Ryan Voorhis email@example.com
Changes To This Policy
We reserve the right to amend this Policy from time to time consistent with the Privacy Shield’s requirements.
Effective Date: 31 December 2017
Last modified: 29 January 2018
PLEASE READ THIS AGREEMENT CAREFULLY.
The following terms and conditions (the “Terms of Service”) form an integral part of the Grow Service Agreement (“Agreement”) between Grow, Inc. (“Grow”) and the customer identified in the Commercial Terms (“Customer”). Capitalized terms shall have the meanings set forth in Section 14 below or in the Section in which they first appear in these Terms of Service. Capitalized terms used but not defined herein shall have the meanings set forth in the Commercial Terms.
1.1 Access and Use. Subject to and conditioned upon Customer’s compliance with the terms and conditions of the Agreement, (a) Customer may access and use the Service during the Subscription Period solely for purposes of Customer’s internal business operations, and (b) if Customer downloads any Software, Grow hereby grants Customer a limited license to install, access, and use the Software, in object code form only, in connection with Customer’s use of the Services. Customer may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that Customer shall ensure its Users’ compliance with the terms and conditions of the Agreement that apply to Customer, and Customer shall be responsible and liable for any User’s non-compliance with the terms and conditions of the Agreement that apply to Customer. The foregoing authorizations granted to Customer are non-exclusive and non-transferable.
1.2 Updates. Grow may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. Customer acknowledges and agrees that Grow has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If Customer downloads a Grow-branded mobile application (“Application”) on a mobile device, when such mobile device is connected to the Internet, either (a) the Application will automatically download and install all available Updates, or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all Updates and acknowledges and agrees that the Applications or portions thereof may not properly operate should Customer fail to do so.
1.3 Limitations and Restrictions. Customer shall not, and shall not permit any User or other person or entity to, access or use the Service or Grow Materials except as expressly permitted in the Agreement. Without limiting the foregoing, Customer shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Grow Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer any Service or Grow Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Grow Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or Grow Materials or access or use the Service or Grow Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Grow Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Grow Materials, or Grow’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Grow Materials; (i) access or use the Service or Grow Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or Grow Materials for purposes of competitive analysis of the Service or Grow Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Grow’s detriment or commercial disadvantage; or (k) otherwise access or use the Service or Grow Materials beyond the scope of the rights granted under Section 1.1 (Access and Use) above.
2.1 Customer Control and Responsibility. Customer has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and Customer has and shall retain sole responsibility for: (a) all Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials; and (e) all access to and use of the Service and Grow Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Grow is not liable for any loss or damage arising from Customer’s failure to protect its Access Credentials.
2.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), Customer shall, and shall cause its Users to, immediately (a) notify Grow of any such actual or threatened activity, and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.
3.1 Customer Data. Customer represents, warrants, and covenants to Grow that Customer owns or otherwise has (and, prior to Grow’s receipt of Customer Data, will have) the necessary rights and consents in and relating to Customer Data, so that Grow’s receipt and Processing of Customer Data in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law.
3.2 Prohibited Data. Customer acknowledges that the Service is not designed with security and access management for Processing the following categories of information: (a) any personal information that imposes specific data security obligations on Grow for the Processing of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (b) data that is classified and/or used on the United States Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any User or other person or entity to, provide any Prohibited Data to, or Process any Prohibited Data through, the Service or Grow Systems. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
3.3 Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. GROW HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
4.1 Services and Grow Materials. As between Customer and Grow, Grow is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and Grow Materials, including all Intellectual Property Rights therein and thereto. Other than the limited rights and licenses granted to Customer pursuant to Section 1.1 (Access and Use) above, nothing in the Agreement grants Customer any right, title, or interest in or to the Services or Grow Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to Grow.
4.2 Work Product. Without limiting Section 4.1 (Services and Grow Materials) above, Grow is and shall remain the sole and exclusive owner of all right, title, and interest in and to all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively reduced to practice by or on behalf of Grow in the course of performing any Professional Services (collectively, the “Work Product”), including all Intellectual Property Rights therein and thereto. For clarity, Work Product does not include Customer Data. In the event Customer is a deemed owner of any right, title, or interest in or to any part of the Work Product, Customer agrees to assign, and hereby irrevocably assigns, to Grow all of its right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein and thereto. Customer agrees to give Grow, and any person designated by Grow, reasonable assistance, at Grow’s expense, in perfecting and/or evidencing Grow’s rights in and to the Work Product, including by executing and delivering all documents reasonably requested by Grow for such purposes. Grow hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Work Product provided by Grow to Customer in connection with the Professional Services solely for Customer’s internal business operations and in connection with the Service and Equipment, subject to all applicable terms and conditions of the Agreement.
4.3 Customer Data. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to Grow. Customer hereby grants to Grow a non-exclusive, worldwide, transferable, sub-licensable (to its subcontractors), irrevocable, royalty-free, fully paid-up license to Process the Customer Data in order to provide the Services to Customer and its Users.
4.4 Service Analyses. Grow may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Grow Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). Grow may make Service Analyses publicly available and use the Service Analyses for its business purposes, however Service Analyses shall not incorporate Customer Data in a form that could serve to identify Customer or any individual. Service Analyses do not constitute Customer Data, and Grow shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
5.2 Ancillary Services. As part of the functionality of certain parts of the Service, Customer may have access to certain third party online financial and other services (“Ancillary Services”). The Service is designed to allow Customer to access accounts Customer may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s). Customer acknowledges and agrees that (a) some third parties may not allow the Service to access certain Ancillary Services, and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to Grow, that may affect overall performance of the Service and prevent or delay aggregation of information from Customer’s account(s) on such Ancillary Services. Customer acknowledges and agrees that Grow has no control over any of the Ancillary Services, and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in Customer’s inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services.
5.3 Collection of Ancillary Account Data. Customer acknowledges that in accessing the Ancillary Services through the Service, Customer’s username(s), password(s), and any other security or access information for Customer’s account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, “Ancillary Account Data”), may be collected and stored through the Service. Customer authorizes Grow, in conjunction with Grow’s provision of the Services, to: (a) access Customer’s account(s) on Ancillary Services and collect and Process Customer’s Ancillary Account Data; (c) access the applicable third party websites and Ancillary Services using Customer’s Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above. Customer hereby represents and warrants to Grow that Customer is the legal owner of Customer’s Ancillary Account Data and that Customer has the authority to appoint, and hereby expressly does appoint, Grow as Customer’s agent with limited power of attorney to access and retrieve Customer’s Ancillary Account Data on Customer’s behalf. Customer further acknowledges and agrees that all Ancillary Account Data constitutes Customer Data hereunder and is subject to the applicable terms and conditions of the Agreement.
6.1 Changes to the Services. Grow reserves the right to make changes to the Services and Grow Materials, or any portion thereof, for any reason. Customer agrees that Grow will not be liable to Customer or third party for any such change.
6.2 Suspension of Access. Grow may suspend Customer’s and/or any of its Users’ access to or use of all or any part of the Services or Grow Materials, without incurring any resulting obligation or liability, if: (a) Grow receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Grow to do so; (b) Grow believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated the provisions of Section 1.3 (Limitations and Restrictions) or Sections 3.1 (Customer Data) or 3.2 (Prohibited Data); or (c) Customer fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Customer from its obligation to make the payment(s) contemplated under the Agreement to Grow. If Grow suspends the Service, Grow shall promptly restore Customer’s (or the applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to Grow’s satisfaction.
7.1 Indemnification of Grow. Customer will indemnify, defend, and hold harmless Grow, its affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Customer Data, including any Processing of Customer Data by or on behalf of Grow in accordance with this Agreement; (b) Grow’s compliance with any specifications or directions provided by or on behalf of Customer; or (c) any breach or violation of this Agreement or applicable law by Customer, any User, or any other person accessing and/or using any of the Services or Grow Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent.
7.2 Indemnification Procedure. Upon receiving notice of a claim for which Grow is entitled to indemnification by Customer, Grow shall provide Customer with written notification and the opportunity to assume sole control over the defense or settlement of such claim and reasonable assistance to settle and/or defend such claim at Customer’s sole expense; provided, however, that: (a) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by Grow will require Grow’s prior written consent; (b) the failure to provide timely notice, control, or assistance shall not relieve Customer of its indemnification obligations hereunder; and (c) Grow may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at Grow’s own expense, unless Customer fails or refuses to secure legal counsel to defend any claim in a timely manner, in which case Customer shall pay all expenses related to Grow’s use of such counsel.
8.1 Term. The Agreement commences on the Effective Date and will remain in effect for the Subscription Period, unless terminated earlier in accordance with its express provisions.
8.2 Termination by Grow. Grow may terminate the Agreement, effective immediately upon written notice to Customer, if (a) Customer fails to pay any amount when due and such failure continues more than 15 days after delivery of written notice thereof, or (b) Customer breaches any of Customer’s obligations under Section 1.3 (Limitations and Restrictions).
8.3 Mutual Right of Termination. Either party may terminate the Agreement, effective upon written notice to the other party, if the other party materially breaches any material provision of this Agreement (except as set forth in Section 8.2 (Termination by Grow) above), and such breach is incapable of cure, or being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
8.4 Effect of Termination. Upon any expiration or termination of the Agreement, all rights and licenses granted to Customer under the Agreement shall immediately terminate, and Grow may disable Customer’s and its User’s access to the Service. In addition, Customer shall, and shall instruct its Users to, immediately cease using the Service and Grow Materials and destroy all copies of the Grow Materials in Customer’s possession or control. The expiration or termination of the Agreement shall not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination or expiration, or (b) relieve Customer of its obligation to pay any charges that have accrued or have become payable to Grow under the Agreement.
8.5 Survival. Any right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, shall survive any expiration or termination of the Agreement, including the provisions of Sections 1.3 (Limitations and Restrictions), 2.1 (Customer Control and Responsibility), 3 (Data), 4 (Ownership), 7 (Indemnification), 8.4 (Effect of Termination), 8.5 (Survival), 9 (Disclaimers), 10 (Limitations of Liability), 13 (General), and 14 (Definitions).
9.1 Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, EQUIPMENT, AND GROW MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES, EQUIPMENT, AND GROW MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND GROW HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, GROW DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, EQUIPMENT, OR GROW MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.2 No Professional Advice. The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.
10.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GROW, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL GROW, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, OR service providers BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (a) CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICES, EQUIPMENT, OR GROW MATERIALS; (B) ANY CUSTOMER DATA, INCLUDING ANY UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER DATA; (c) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; AND/OR (d) ANY HARMFUL CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, EQUIPMENT, OR ANY GROW MATERIALS.
10.2 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF GROW, ITS AFFILIATES,AND ITS AND THEIR RESPECTIVE OFFICERS, directors, employees, agents, licensors, and service providers UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO GROW UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Basis of the Bargain. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES AND GROW MATERIALS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Customer acknowledges that the Equipment and Grow Materials are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any other person or entity to, remove or export from the United States or allow the export or re-export any Equipment or Grow Materials or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the United States Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import laws of any United States or foreign agency or authority.
The following additional terms and conditions apply to an Application only if it is designed for use on an Apple, Inc. (“Apple”) iOS-powered mobile device. Customer and Grow acknowledge that the Agreement is concluded between Customer and Grow only, and not with Apple, and Grow, not Apple, is solely responsible for the Application and the content thereof. Customer agrees that its license to use the Application is limited to the Apple iOS mobile device that Customer owns or controls and that Customer’s use of the Application shall be subject to the usage rules set forth in Apple’s then-current App Store Terms of Service. Customer and Grow agree that Apple shall have no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Application. Customer agrees that Grow, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the Application. Customer represents and warrants that Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties. Grow’s contact information for any questions or inquiries with respect to the Application is set forth in Section 13.3 below. Customer agrees to comply with all applicable third party terms of agreement when using the Application. Customer agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service applicable to the Application. Upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third party beneficiary thereof.
13.2 Geographic Restrictions. Grow does not represent that the Service or any Grow Materials are appropriate or available for use outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and are responsible for compliance with all applicable laws.
13.3 Notices. Customer agrees that Grow may communicate any notices to Customer under the Agreement through electronic mail, by posting on Grow’s website, or by regular mail. Notices will be deemed effectively given to Customer immediately when sent by electronic mail or posted on Grow’s website, or two (2) business days after being sent by regular mail. All notices, requests, and other communications to be given to Grow hereunder shall be in writing and sent to Grow by registered or certified mail, postage prepaid, return receipt requested to the following address: Grow, Inc., 1401 Research Way #2200 Orem, UT 84097 (or to such other address that Grow may designate from time to time in accordance with this Section 13.3). Notices will be deemed effectively given to Grow when received.
13.4 Governing Law; Jurisdiction and Venue. The Agreement as well as any dispute or claim arising out of or related to the Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to the Agreement shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and Customer further agrees that such courts shall have in personam jurisdiction and venue with respect to Customer. Customer hereby submits to the in personam jurisdiction and venue of such courts and hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
13.5 Limitation on Time to File Claims; Waiver of Jury Trial. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.
13.6 Miscellaneous. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Grow’s prior written consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any remedy of Grow set forth in the Agreement is in addition to any other that may be available to Grow at law, in equity, or otherwise. Grow’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of the Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties. Unless the context otherwise requires, for purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) the headings in the Agreement are for reference only and do not affect the interpretation of this Agreement; and (f) the parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
“Customer Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Grow, directly or indirectly, by Customer or a User in connection with any of the Services.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.
“Grow Materials” means the Grow Systems, Software, and any and all other information, data, documents, materials, works, and other content that are provided or used by Grow in connection with the Services or otherwise comprise or relate to the Services or Grow Systems, including any third party materials contained therein, but excluding the Customer Data. For the avoidance of doubt, Grow Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Grow under this Agreement.
“Grow Systems” means the information technology infrastructure used by or on behalf of Grow in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Grow or through the use of third party services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any User from accessing or using the Service or Grow Systems as intended by this Agreement.
“Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.
“Software” means Grow’s proprietary software applications (including the Applications) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Grow provides access to and use of as part of the Services.
“User” means an employee of Customer.
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