Grow Platform, Inc.
Last Updated: September 30, 2020
BY ADDING THE GROW SERVICES TO YOUR THIRD PARTY SERVICE YOU ARE REPRESENTING AND WARRANTING TO GROW THAT YOUR ORGANIZATION HAS EXPRESSLY AUTHORIZED YOU TO DO SO, AND THIS AGREEMENT SHALL BE BINDING UPON BOTH YOU AND YOUR ORGANIZATION.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. Description of the Users.
The Services are available only to individuals aged 16 years or older. If you are 16 or older, but under the age of majority in your jurisdiction, you should review the Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 16, you may use the Services only with the consent of your parent or guardian.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, including by closing or disconnecting your Grow Account (as defined below), without notice and without reason.
3. User Accounts; Third Party Services.
To use the Grow Services, User’s Organization must add the Grow Services to the Organization’s third-party real-time messaging service (each, a “Third Party Service”), or User may add the Grow Services to the Third Party Service with the express permission of User’s Organization. User will then be able to add the Grow Services to his or her personal Third Party Service account (“Third Party Service Account”). By adding the Grow Services to his or her Third Party Service Account each User gives Grow the right to create User’s account with Grow (your “Grow Account”) by accessing certain information about User from his or her Third Party Service Account, such as User’s name, email address, and certain content and communications provided to and stored in User’s Third Party Service Account (collectively, “User Information”). By adding Grow to User’s Third Party Service Account, User agrees that we may access and store such User Information for the purpose of providing the Services to User. Personally identifiable information that User transmits to and/or through the Third-Party Service Account may be available on and through User’s Grow Account.
ORGANIZATION REPRESENTS AND WARRANTS THAT ITS USERS ARE ENTITLED TO DISCLOSE USER INFORMATION TO GROW THROUGH THE THIRD PARTY SERVICE, AND/OR TO GRANT GROW ACCESS TO THIRD-PARTY SERVICE ACCOUNTS WITHOUT BREACH BY ORGANIZATION OR ANY USER OF ANY OF THE TERMS AND CONDITIONS THAT GOVERN ORGANIZATION’S AND USERS’ USE OF THE APPLICABLE THIRD-PARTY SERVICE (“THIRD PARTY TERMS”), AND WITHOUT OBLIGATING GROW TO PAY ANY FEES OR MAKING GROW SUBJECT TO ANY USAGE LIMITATIONS IMPOSED BY SUCH THIRD PARTY SERVICE PROVIDERS.
YOUR relationship with ANY third party service PROVIDER is governed by THE Third Party TERMS, AND GROW IS NOT A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, THAT RELATIONSHIP. GROW HAS NO ACCESS TO YOUR PRIVACY SETTINGS ON YOUR THIRD PARTY SERVICE ACCOUNT, AND IS NOT RESPONSIBLE FOR HONORING ANY SUCH PRIVACY SETTINGS. YOU SHALL LOOK SOLELY TO THE THIRD PARTY SERVICE PROVIDER, AND NOT TO GROW, IF GROW HAS OBTAINED ACCESS TO YOUR INFORMATION IN VIOLATION OF THE THIRD PARTY TERMS.
If the Third-Party Service becomes unavailable or our access to such Third-Party Service is interrupted or terminated for any reason, you will immediately lose access to your Grow Account; provided, however, that you will continue to have access to your User Communications (as defined below). Users have the ability to disable the connection between User’s Grow Account and his or her Third Party Service Account at any time by removing the Services from the Third Party Service.
You agree to keep your Grow Account information up to date and accurate at all times. Notwithstanding anything to the contrary in this Agreement, Grow reserves the right to delete User’s Grow Account at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Our deletion of User’s Account will not affect your Third Party Service Account or access to the Third Party Service.
4. Intellectual Property.
Grow owns all right, title, and interest in and to, or is duly licensed under or otherwise authorized to use by its suppliers, the Services and all intellectual property rights in and to the Services. No license or other right is granted herein except for the rights specifically set forth herein. By using the Services, you shall not (i) contest Grow’s proprietary rights in the Services; or (ii) disclose any confidential information of Grow regarding the Services (including the Services itself) or that is otherwise disclosed to you in connection with this Agreement, unless such disclosure is expressly allowed by this Agreement. You shall not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.
The Services contain and/or may transmit certain material (such as text, images, graphics, etc.) provided by, through, or on behalf of Grow (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content and all intellectual property related thereto are protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
If you violate any part of this Agreement, your permission to access the Content and use the Services automatically terminates and you must immediately destroy any copies made of the Content.
The trademarks, service marks, and logos of Grow (the “Grow Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Grow. Other company and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Grow Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Grow Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
User will not, and Organization will not permit any User or any third party to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (ii) modify, adapt, or translate the Services; (iii) make any copies of the Services; (iv) resell, distribute, or sublicense the Services; (v) remove or modify any proprietary markings or restrictive legends placed on the Services; (vi) use the Services in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vii) introduce into the Services any virus, worm, “back door,” Trojan Horse, or similar harmful code; (viii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (ix) interfere with, or attempt to interrupt the proper operation of, the Services or attempt to gain access to any Content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means; (x) cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services; or (xi) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of the license, and reversion to Grow of the rights, granted to User and Organization hereunder.
6. User Communications; Licenses.
The Services enable Users to send communications (including, but not limited to, textual comments and images, which may or may not include User Information) (collectively, “User Communications”) to other Grow Users. User expressly acknowledges and agrees that once User submits User Communications through the Services, there is no confidentiality or privacy with respect to such User Communications and User’s Organization’s access to User Communications, including, without limitation, any personally identifying information that User may make available. ORGANIZATION, AND NOT GROW, IS ENTIRELY RESPONSIBLE FOR ALL USER COMMUNICATIONS.
Grow does not claim any ownership rights in or to the User Communications or any intellectual property rights therein, and has no rights or licenses thereto except for the rights granted in this Agreement. Ownership of User Communications vests in User except to the extent otherwise provided in any applicable Third Party Service Terms, and User understands and agrees that certain Third Party Service Terms may provide that Organization, and not User, is the owner of such User Communications. Grow provides no assurances with respect to, and is not obligated to take any acts or execute any instruments to confirm, ownership of the User Communications.
Except as provided for in this Agreement, current and historical User Communications may be accessed by User at any time, and access to User Communications is not dependent on affiliation with any particular Organization. User represents and warrants that it will not provide confidential information in any User Communications without authorization from the owner of such confidential information.
You hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual, irrevocable license to copy, transmit, format, distribute, and otherwise use User Communications and all intellectual property and moral rights therein throughout the universe, for the purpose of providing the Services.
7. Disclaimer of Warranty.
THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GROW MAKES NO, AND HEREBY DISCLAIMS ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
YOU ACKNOWLEDGE THAT GROW IS NOT RESPONSIBLLE FOR ANY USER COMMUNICATIONS MADE AVAILABLE THROUGH THE SERVICES OR ANY USER’S OR ORGANIZATION’S RELIANCE THEREON. GROW IS NOT OBLIGATED TO REVIEW ANY USER COMMUNICATIONS FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO, FOR ACCURACY, LEGALITY OR NONINFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT USER COMMUNICATIONS ARE SENT VIA REAL-TIME MESSAGING FROM ONE USER TO ANOTHER USER. USERS WHO RECEIVE USER COMMUNICATIONS SHOULD SEEK PERMISSION FROM THE SENDER BEFORE USING SUCH USER COMMUNICATIONS FOR ANY PURPOSE. GROW DISCLAIMS ALL LIABILITY FOR ONE USER’S USE OF ANOTHER USER’S USER COMMUNICATIONS.
TO THE EXTENT THAT GROW MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY OR OTHERWISE, AND IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) IN NO EVENT SHALL GROW BE LIABLE TO ORGANIZATION OR USER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, ACCESS TO USER COMMUNICATIONS, CONTENT OF COMMUNICATIONS, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENT, EVEN IF GROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GROW BE LIABLE FOR ANY CLAIM BY A THIRD PARTY, AND (II) GROW’S LIABILITY IN THE AGGREGATE FOR ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURY SHALL IN NO EVENT EXCEED THE GREATER OF (i) AMOUNTS ORGANIZATION HAS PAID TO GROW FOR USE OF THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (ii) FIFTY UNITED STATES DOLLARS (US $50).
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AS SET FORTH IN SECTION 7 ABOVE OR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION. THEREFORE, SOME OF THE ABOVE DISCLAIMERS OF WARRANTY AND/OR LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU.
NOTHING HERE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
9. Representations; Warranties; and Indemnification.
a. You hereby represent, warrant, and covenant that:
i. You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Communications and any other works that you incorporate into your User Communications, and all the rights necessary to grant the licenses and permissions you grant hereunder; and
10. Binding Arbitration.
In the event of a dispute arising under or relating to this Agreement, the products, the Content, or the Services (each, a “Dispute”), User, Organization, or Grow may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other parties. IF ANY PARTY CHOOSES ARBITRATION, NO OTHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT ANY PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where Organization or User reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 12 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
11. Class Action Waiver.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
12. Equitable Relief.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
13. Termination of the Agreement.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability. Sections 4-18 shall survive the termination of this Agreement.
14. Controlling Law.
This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
15. Compliance with Applicable Laws.
The Services are based in the United States. We make no claims concerning whether the Services or Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
16. Communications with and Submissions to Us.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of the Services that incorporate such information without compensation or attribution to you.
17. External Sites.
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by the parties in writing, this Agreement constitutes the entire Agreement between User, Organization, and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
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