Terms of Service

Last Modified: March 1, 2022

HELLO, AND THANK YOU FOR YOUR INTEREST IN SCALEGROWTH INC. (“SCALEGROWTH”). SCALEGROWTH OFFERS A COMMUNITY PLATFORM (THE “SERVICE”) AS FURTHER DESCRIBED ON ITS WEBSITE AT SCALEGROWTH.AI AND IN AN ORDER FORM.

THESE TERMS OF SERVICE TOGETHER WITH ANY ORDER PROCESS OR ORDER FORM OFFERED BY SCALEGROWTH WHICH INCORPORATES THESE TERMS OF SERVICE BY REFERENCE (“ORDER FORM”) (COLLECTIVELY, THE “AGREEMENT”) CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE. ACCORDINGLY, YOU SHOULD READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE.

IN ADDITION, THESE TERMS OF SERVICE PROVIDE THAT ALL DISPUTES BETWEEN YOU AND SCALEGROWTH WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT EXCEPT FOR MATTERS DESCRIBED IN SECTION 11.2 OF THESE TERMS OF SERVICE. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW THE “DISPUTE RESOLUTION AND ARBITRATION” SECTION BELOW FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH SCALEGROWTH.

EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS OF SERVICE.

YOU MUST BE AT LEAST THE AGE OF MAJORITY IN THE STATE OR COUNTRY WHERE YOU LIVE TO USE THE SERVICE. BY AGREEING TO THESE TERMS OF SERVICE, YOU REPRESENT AND WARRANT THAT: (A) YOU ARE AT LEAST THE AGE OF MAJORITY IN THE STATE OR COUNTRY WHERE YOU LIVE; (B) YOU HAVE NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE SERVICE; AND (C) YOUR REGISTRATION AND YOUR USE OF THE SERVICE IS IN COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.

IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN PLEASE DO NOT USE THE SERVICE.

1. SCALEGROWTH SERVICE

1.1 Provision of Service.

1.1.1 Access to Service. Solely for its internal business use and subject to the terms and conditions of this Agreement and any use or scope of use restrictions designated in the applicable Order Form, Customer may access and use the Service. The Service is provided on a subscription basis for a set term designated in the Order Form (each, a “Subscription Term”).

1.1.2 Customer Assistance. Customer shall provide ScaleGrowth with all information, access, assistance and materials as reasonably required for ScaleGrowth to activate, operate and provide the Service, support and maintenance, and any additional services under this Agreement.

1.1.3 Interaction with Third Party Services. If Customer (including any End User) uses any third-party service with the Service, (i) Customer authorizes ScaleGrowth to provide the third-party service with access to and use of Customer’s data, (ii) ScaleGrowth will not be responsible for any act or omission of the third party, including but not limited to any third party’s use, disclosure, modification or deletion of Customer’s data and (iii) ScaleGrowth does not warrant or support any service provided by the third party.

1.2 Use of Service.

1.2.1 End Users. Use of and access to the Service is permitted only by the number of end users of Customer specified in the applicable Order Form (“End Users”). Each individual End User will have an End User specific account through which such End User accesses and uses the Service (an “End User Account”). Additional End Users or add-on features in the Service may be purchased during an unexpired Subscription Term at the pricing set forth in the relevant Order Form, prorated for the remainder of the Subscription Term in effect at the time the add-ons are purchased. Such add-ons will terminate on the same date as the Subscription Term.

1.2.2 Administrators. Customer may designate one or more End Users to serve as “Administrators”. Administrators will have the ability to access, disclose, restrict or remove information in or from and otherwise terminate an End User’s access to their End User Account as and to the extent made available by the functionality of the Service. Customer is solely responsible for notifying End Users of terms and policies relevant to use.

1.2.3 Customer Administration of the Service. Customer is responsible for (i) maintaining the confidentiality of user IDs, passwords and access to Administrator and End User accounts, (ii) managing access to End User Accounts, and (iii) ensuring Customer’s use of the Service (including use by each End User and each Administrator) complies with the terms of this Agreement. For clarity, ScaleGrowth’s responsibilities do not extend to the internal management or administration of the Service for Customer.

1.2.4 Unauthorized Use and Access. Customer will prevent unauthorized use of the Service by its End Users and terminate any unauthorized use of the Service. Customer is responsible for any and all actions taken using Customer’s End User Accounts and passwords.

2. PROPRIETARY RIGHTS

2.1 ScaleGrowth Technology. This Agreement provides only the right to access and use the Service. Customer acknowledges that it is obtaining only a limited right to the Service and that, irrespective of any use of the words “purchase”, “sale” or like terms, no ownership rights are being conveyed to Customer under this Agreement. No right to use any ScaleGrowth trademark, logo, domain name or other brand feature (“Marks”) are granted under this Agreement. Customer agrees that ScaleGrowth or its suppliers retain all right, title and interest, and all current and future worldwide patent, copyright, trademark, trade secret, moral rights and other intellectual property rights (collectively, “Intellectual Property Rights”), in and to the Service, Marks and any and all related and underlying technology, software and documentation, and any modifications, improvements or enhancements thereto and derivative works based thereon (collectively, “ScaleGrowth Technology”). All rights in the ScaleGrowth Technology not expressly granted are reserved by ScaleGrowth or its suppliers.

2.2 Customer Data; Generated Data. Customer Data; Generated Data. As between the parties, Customer retains all right, title and interest, and any and all intellectual property rights, in and to any Customer Data as provided to ScaleGrowth. By uploading or otherwise providing Customer Data, Customer grants ScaleGrowth and its subcontractors a right to use the Customer Data, in whole or in part, for the purpose of providing or improving the Service, or for any other purpose consistent with ScaleGrowth’s Privacy Policy (https://scalegrowth.ai/privacy). “Customer Data” means any data, information or content provided by Customer (including any End Users) to the Service, in connection with access to, or use of, the Service. Customer acknowledges that data generated by Customer’s (including any End User’s) use of the ScaleGrowth Technology may be used to provide and improve the ScaleGrowth Technology, or for any other purpose consistent with ScaleGrowth’s Privacy Policy (https://scalegrowth.ai/privacy).

2.3 Customer Modifications. ScaleGrowth may allow Customer or an End User to modify certain elements of the Service. Customer agrees that any modifications, improvements or enhancements it or any End User makes to the ScaleGrowth Technology or any derivative works it or any End User prepares based on the ScaleGrowth Technology (and all Intellectual Property Rights therein and thereto) (collectively, “Customer Modifications”) will be the sole and exclusive property of ScaleGrowth. Customer hereby irrevocably assigns to ScaleGrowth, and shall cause each End User to irrevocably assign to ScaleGrowth, all rights, title and interests, and all Intellectual Property Rights, in and to the Customer Modifications.

2.4 Feedback. Customer (including any End Users), from time to time, may provide to ScaleGrowth comments, information, questions, data, ideas, description of processes, or other information in connection with, or regarding, ScaleGrowth’s products and services (“Feedback”). Customer (including any End User) has no obligation to provide Feedback, and all Feedback that is provided is and will be deemed to have been given entirely voluntarily. Feedback, even if designated as Confidential Information at the time the Feedback is provided, will not create any confidentiality obligation for ScaleGrowth with respect to the Feedback. Notwithstanding anything to the contrary in this Agreement, ScaleGrowth is free to use or otherwise exploit any Feedback without restriction of any kind.

2.5 General Restrictions. The Service is provided solely for Customer’s internal business use. Customer (including any End Users) will not: (a) assign, rent, lease, distribute, copy, resell or otherwise provide access to or sublicense any element of the ScaleGrowth Technology to a third party; (b) use any element of the ScaleGrowth Technology to provide, or incorporate any element of the ScaleGrowth Technology into, any product or service provided to a third party; (c) remove or otherwise interfere with any part of the ScaleGrowth Technology designed to monitor Customer’s compliance with this Agreement; (d) use the ScaleGrowth Technology for activities where use or failure of the ScaleGrowth Technology could lead to physical damage, death or personal injury; (e) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to, or derive the algorithms of, any element of the ScaleGrowth Technology, except to the extent that applicable law makes such restrictions unenforceable (and then only upon advance notice to ScaleGrowth); (f) (i) modify any element of the ScaleGrowth Technology (except as expressly permitted by Section 2.3 of this Agreement), or (ii) create any derivative product from the ScaleGrowth Technology (or any element thereof); (g) remove, alter or obscure any proprietary or other notices or labels contained in the ScaleGrowth Technology; (h) publicly disseminate information regarding the performance of the ScaleGrowth Technology; (i) use the ScaleGrowth Technology beyond the term of the subscription or in excess of the limits set forth in any Order Form; (j) violate ScaleGrowth’s User Terms of Use available at https://scalegrowth.ai/user-terms or ScaleGrowth’s Acceptable Use Policy available at https://scalegrowth.ai/acceptable-use-policy, both of which are hereby incorporated into this Agreement by reference; or (k) access or use the ScaleGrowth Technology in order to: (i) design, develop, build, market or support a competing product or service; (ii) design, develop, build, market or support a product using similar ideas, features, functions or graphics of the ScaleGrowth Technology; or (iii) copy any ideas, features, functions or graphics of the ScaleGrowth Technology. Customer may not access the ScaleGrowth Technology if it is a competitor of ScaleGrowth. In addition, Customer may not access the ScaleGrowth Technology for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.6 Third Party Components. Third party components (which may include open source software) of the ScaleGrowth Technology may be subject to separate license agreements. Such separate license agreements will govern for the specific included third party components of the ScaleGrowth Technology, or use of the ScaleGrowth Technology (as may be applicable).

2.7 Compliance Review. If, at any time, ScaleGrowth identifies any use of the ScaleGrowth Technology that is not in compliance with the terms of this Agreement (including but not limited to Section 2.4(i)), Customer shall, as applicable, pay ScaleGrowth for such use of the ScaleGrowth Technology, at ScaleGrowth’s then-current list price, and promptly cure such noncompliance. If Customer fails to make such payment and cure such noncompliance, ScaleGrowth may immediately terminate this Agreement (without prejudice to any other rights or remedies ScaleGrowth may have under this Agreement, or at law or equity or otherwise).

3. SUBSCRIPTION TERM, FEES & PAYMENT

3.1 Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for one year periods unless either party gives the other written notice of termination at least 30 days prior to expiration of the then-current Subscription Term.

3.2 Fees and Payment. Customer shall pay all fees for the Subscription Term or as specified in the applicable Order Form. Customer agree to pay all fees or charges to your account for the Service in accordance with the fees, charges and billing terms in effect at the time that each fee or charge is due and payable. All fees are non-refundable. ScaleGrowth will provide Customer with at least 30 days advance notice of any change in the Service fee and such change will be effective during the next Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the net income of ScaleGrowth. If Customer is required by law to withhold any taxes, Customer shall provide ScaleGrowth with an official tax receipt or other appropriate documentation. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

3.3 Suspension of Service. If Customer's account is 30 days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth in this Agreement), ScaleGrowth reserves the right to suspend Customer’s access to the Service without liability to Customer until such amounts are paid in full.

4. TERM AND TERMINATION

4.1 Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

4.2 Termination for Cause. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including but not limited to a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter).

4.3 Termination for Convenience. Unless otherwise specified on the applicable Order Form, Customer may terminate this Agreement and any Order Form at any time upon 30 days advance written notice to ScaleGrowth with such termination becoming effective upon Customer paying all fees then due plus any remaining contractually committed amounts (even if the date by which such fees would have been due has not yet occurred). Unless otherwise specified on the applicable Order Form, Customer will not be entitled to any refund of any fees upon termination under this Section 4.3.

4.4 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service and securely delete any and all documentation and other ScaleGrowth Technology. Customer acknowledges that following termination, Customer (and each End User) will have no further access to the Service and any Customer Data uploaded to the Service, and that ScaleGrowth may delete any such Customer Data as may have been stored by ScaleGrowth within a commercially reasonable period of time. Except where an exclusive remedy is specified in this Agreement, the exercise by ScaleGrowth of any remedy under this Agreement, including, without limitation, termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

4.5 Survival. The following sections will survive any expiration or termination of this Agreement: 2, 3.2, 4.4, 4.5, 5.2, 7, 8, 10, 11 and 12.

5 REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER

5.1 Required Consents. Customer represents, warrants and covenants that (a) its execution and performance of this Agreement does not violate any third party’s right, and (b) it has obtained or will obtain, as appropriate, any consents from End Users as necessary for Customer’s use of the Service, including, without limitation, (i) parental or guardian consent for any End User under the age of majority in the state or country in which the End User lives, and (ii) consent for the Customer’s and ScaleGrowth’s collection, use, and disclosure of End Users’ data subject to the limitations set forth in this Agreement.

5.2 WARRANTY DISCLAIMER. THE SCALEGROWTH TECHNOLOGY IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER SCALEGROWTH NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. SCALEGROWTH DOES NOT WARRANT THAT THE SCALEGROWTH TECHNOLOGY WILL BE ERROR-FREE OR THAT THE SCALEGROWTH TECHNOLOGY WILL WORK WITHOUT INTERRUPTIONS. SCALEGROWTH WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SCALEGROWTH. SCALEGROWTH MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY CUSTOMER DATA OR INFORMATION OR DATA IN OR FROM ANY END USER ACCOUNT, OR THE ACCURACY OF ANY REPORTS OR DATA GENERATED BY THE SCALEGROWTH TECHNOLOGY. SCALEGROWTH HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY CUSTOMER DATA.

6 SERVICE AVAILABILITY.

6.1 Maintenance. Scheduled system maintenance will take place during a normal maintenance window, as reasonably determined by ScaleGrowth. During such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure. ScaleGrowth will use commercially reasonable efforts to promptly remedy any system failure and restore the Service.

6.2 Support. Customer may contact ScaleGrowth during regular business hours by email at support@scalegrowth.ai or through the Service if it experiences any errors with the Service, except if such errors result from (a) outages caused by Customer, End Users or third-party providers, (b) outages caused by third-party equipment not under ScaleGrowth’s control, or (c) outages caused by events not in ScaleGrowth’s reasonable control. ScaleGrowth may use personnel and resources in locations worldwide to provide support.

6.3 Account Suspension. If Customer (including any End User) (a) violates this Agreement (including, without limitation, the User Terms of Use or the Acceptable Use Policy) or (b) uses the Service in a manner that ScaleGrowth reasonably believes will cause it liability, then ScaleGrowth may request that Customer remedy such situation (including, as applicable, by suspending or terminating any particular End User Accounts). If Customer fails to promptly remedy such situation, then ScaleGrowth may suspend any affected End User Account or otherwise limit Customer’s access to the Service.

6.4 Security Emergencies. Notwithstanding anything to the contrary in this Agreement, if there is a Security Emergency then ScaleGrowth may automatically suspend use of the Service. ScaleGrowth will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (a) use of the Service that does or could disrupt the Service, other customers’ use of the Service or the infrastructure used to provide the Service, or (b) unauthorized third party access to the Service.

6.5 Modifications. ScaleGrowth may update the Service from time to time. If ScaleGrowth changes the Service in a manner that materially reduces its functionality, ScaleGrowth will inform Customer, unless Customer has opted out of communications of this type from ScaleGrowth.

7 LIMITATION OF LIABILITY

7.1 Limitation of Liability. SCALEGROWTH AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, ERRORS OR OMISSIONS FROM THE SCALEGROWTH TECHNOLOGY, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SCALEGROWTH’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SCALEGROWTH UNDER THIS AGREEMENT DURING THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. ANY DAMAGES IN CUSTOMER’S FAVOR AGAINST SCALEGROWTH WILL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CUSTOMER UNDER THE AGREEMENT, AND ANY SUCH CREDIT WILL APPLY TOWARDS THE LIMITATION OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.

7.2 Basis of Bargain; Failure of Essential Purpose. Customer acknowledges that ScaleGrowth has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations of liability and disclaimers set forth in this Agreement will survive and apply even if found to have failed of their essential purpose.

8 INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless ScaleGrowth and its directors, officers, employees, contractors, and agents from and against all liabilities, damages and costs (including but not limited to settlement costs and reasonable attorneys' fees) related to or arising out of: (a) Customer's (including any End User's) access to, or use of, the ScaleGrowth Technology; (b) Customer Data; (c) Customer’s conduct or interactions with its End Users; and (d) Customer’s breach of any part of this Agreement. Customer shall allow ScaleGrowth to participate in the defense and shall not settle any such claim without ScaleGrowth’s prior written consent. ScaleGrowth reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, and in that case, Customer agrees to cooperate with ScaleGrowth’s defense or settlement of that claim.

9 PRIVACY AND SECURITY. The ScaleGrowth Privacy Policy, available at scalegrowth.ai/privacy, governs ScaleGrowth’s collection, use and disclosure of Customer Data and is incorporated into this Agreement by reference.

10 CONFIDENTIAL INFORMATION. “Confidential Information” means any technical and business information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in discussions and activities related to this Agreement, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. In addition, any ScaleGrowth Technology, any data or analysis provided by ScaleGrowth to a Customer or End User, and any performance information related to the ScaleGrowth Technology will be deemed Confidential Information of ScaleGrowth. Except as expressly permitted in this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s obligations under this Section 10 will not apply to information that the Receiving Party documents: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if required by law, regulation or court order (but only to the minimum extent required to comply with such law, regulation or order and, to the extent legally permitted, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that, upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to any other remedies it might have at law, equity or otherwise. For greater clarity, this Section 10 does not apply to Customer Data.

11 DISPUTE RESOLUTION AND ARBITRATION

11.1 Generally. In the interest of resolving disputes between Customer and ScaleGrowth in the most expedient and cost-effective manner, Customer and ScaleGrowth agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The parties’ agreement to arbitrate disputes includes all claims arising out of or related to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND SCALEGROWTH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

11.2 Exceptions. Despite the provisions of Section 11.1, the parties both agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement or misappropriation claim.

11.3 Arbitrator. Any arbitration between Customer and ScaleGrowth will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting ScaleGrowth.

11.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if ScaleGrowth does not have a physical address on file for Customer, by electronic mail (“Notice”). ScaleGrowth’s address for Notice is: ScaleGrowth Inc., legal@scalegrowth.ai. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties agree to use good faith efforts to resolve the claim directly, but if they do not reach an agreement to do so within 30 days after the Notice is received, Customer or ScaleGrowth may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or ScaleGrowth must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the parties’ dispute is finally resolved through arbitration in Customer’s favor, ScaleGrowth will pay Customer the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by ScaleGrowth in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.

11.5 Fees. If Customer commences arbitration in accordance with this Agreement, ScaleGrowth will reimburse Customer for its payment of the filing fee, unless its claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of its billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agrees to reimburse ScaleGrowth for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

11.6 No Class Actions. CUSTOMER AND SCALEGROWTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and ScaleGrowth agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

11.7 Modifications. If ScaleGrowth makes any future change to this arbitration provision (other than a change to ScaleGrowth’s address for Notice), Customer may reject the change by sending ScaleGrowth written notice, within 30 days of the change, to ScaleGrowth’s address for Notice, in which case Customer’s account with ScaleGrowth will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments Customer rejects will survive.

11.8 Enforceability. If Section 11.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 12.6 will govern any action arising out of or related to this Agreement.

12 GENERAL TERMS

12.1 Publicity. Customer agrees to use of Customer’s name and logo on ScaleGrowth’s website and in ScaleGrowth’s promotional materials. Customer agrees that ScaleGrowth may disclose that Customer is a customer of ScaleGrowth. In addition, ScaleGrowth may choose to feature Customer Sites or names, trademarks, service marks or logos included on Customer Sites. Customer agrees that ScaleGrowth is free to use any version of Customer Sites, or any portion of Customer Sites, including, without limitation, names, trademarks, service marks or logos on Customer Sites, for the limited purpose of ScaleGrowth marketing and promotional activities. Customer waives any claims against ScaleGrowth relating to any moral rights, artists’ rights or any other similar rights worldwide that Customer may have in or to Customer Sites or names, trademarks, service marks or logos on Customer Sites and any right of inspection or approval of any such use. This section does not affect any rights Customer may have under applicable data protection laws. “Customer Sites” mean the sites Customer creates or publishes using the Service.

12.2 Assignment. Customer may not assign or transfer this Agreement (or any of its rights or obligations under this Agreement) without ScaleGrowth’s prior written consent; any attempted assignment or transfer without complying with the foregoing will be void. ScaleGrowth may freely assign or transfer this Agreement. This Agreement inures to the benefit of, and is binding upon, the parties and their respective legal representatives, successors, and assigns.

12.3 Severability. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

12.4 Export Control. Customer agrees to comply with all applicable export control laws and regulations. Customer shall not sell, export, reexport, transfer, divert or otherwise dispose of, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer represents that it is not (a) 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 (b) listed on any U.S. government list of prohibited or restricted parties.

12.5 U.S. Federal Government Users. The ScaleGrowth Technology was developed solely at private expense and is commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.

12.6 Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of California without regard to conflict of law principles, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. If a lawsuit or court proceeding is permitted under this Agreement, the exclusive jurisdiction and venue for actions arising under or related to the subject matter of this Agreement will be the state and federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.

12.7 Time Limitation on Claims. Either Party must initiate a cause of action for any claim(s) arising out of or related to this Agreement or an Order Form, and its subject matter, within six months from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

12.8 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.9 Notice. Notices can be sent via Email, first class, airmail, or overnight courier to the address of the applicable party as set forth in the Order Form and are deemed given when received. Notices to Customer may also be sent to the applicable account email address, and are deemed given when sent. Notices to ScaleGrowth should be sent to feedback@scalegrowth.ai, except for legal notices, which must be sent to legal@scalegrowth.ai, or at our mailing address: ScaleGrowth Inc. 362 E Hedding Street, San Jose, CA 95112

12.10 Changes to the Agreement. ScaleGrowth may change the terms and conditions in this Agreement on a going-forward basis by providing Customer with 30 days notice via the Service or by email if Customer subscribed to receive such email updates. The changes apply as of the effective date specified in the notice. Customer acknowledges its agreement to the changes by continuing to use the Service after the effective date of such notice

12.11 Amendments; Waivers. Except as provided in Section 12.10, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement.

12.12 Entire Agreement. This Agreement, together with the User Terms of Use, Privacy Policy and the Acceptable Use Policy, constitute the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

12.13 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

12.14 Force Majeure. Except for the obligation to pay monies, neither ScaleGrowth nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, or Internet disturbance).

12.15 Subcontractors. ScaleGrowth may use the services of subcontractors for performance of services under this Agreement.

12.16 Relationship of the Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created between the parties by this Agreement. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.17 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except as expressly set forth in Section 8. Without limiting this Section 12.17, Customer's End Users are not third party beneficiaries to Customer's rights under this Agreement.

12.18 Headings; Construction. The headings to the clauses, sub-clauses and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement will be interpreted equitably without regard to which party drafted the Agreement or any provision of the Agreement.

12.19 Consent to Electronic Communications. By using the Service, Customer consents to receiving certain electronic communications from ScaleGrowth as further described in ScaleGrowth’s Privacy Policy. Customer is encouraged to read ScaleGrowth’s Privacy Policy to learn more about Customer’s choices regarding ScaleGrowth’s electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that ScaleGrowth sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

12.20 Contact Information and Consumer Rights Notice. The Service is offered by ScaleGrowth Inc.. Customer may contact ScaleGrowth by sending correspondence to that address or by emailing ScaleGrowth at legal@scalegrowth.ai. If Customer is a California resident, Customer may have these Terms of Service mailed to it electronically by sending a letter to the address above with its electronic mail address and a request for these Terms of Service. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Questions? Concerns?

Please contact us at legal@scalegrowth.ai to report any violations of these Terms of Use or to pose any questions regarding this Terms of Service or the Site.