These Terms of Service ("Terms") are entered into between GrowthSpace Inc. ("Growth Space") and the customer accepting these Terms ("Customer") as of the date of Customer's acceptance of these Terms ("Effective Date"), including by way of execution of a Statement of Work ("SOW") or other written confirmation (including via email) referencing these Terms. This MSA, together with any SOW or written confirmation (together, the "Agreement"), sets forth the terms under which Customer may use Growth Space's coaching platform ("Platform") and the services thereon.
- Services. During the Term and subject to the terms of hereof, Growth Space shall provide Customer with the Platform through which Customer's employees ("Employees") can receive certain services, such as coaching sessions, lectures, or workshops ("Sessions") from qualified experts, coaches, mentors, lecturers, or consultants ("Experts") and Customer shall receive certain information such as analytics based on the Sessions and use of the Platform, all as described in the SOW or other written agreement ("Services").
- Employee Registration. Employees may register through a link sent by Customer OR may be registered by Growth Space based on information provided by Customer. Customer represents that it has provided all notices and has obtained all necessary consents required under applicable law to provide any personal data of Employees to Growth Space and to allow Growth Space to process and share such data with the relevant Experts all as detailed in Growth Space's Privacy Notice and shall ensure that a record of such consents is maintained, all as required under applicable law.
- Fees. Customer shall pay Growth Space the fees set out in the SOW or agreed via email per the agreed payment terms. All amounts payable are exclusive of applicable VAT and taxes, and Customer pay Growth Space without deduction for and free and clear of any such amounts. Fees for one-on-one coaching or mentorship Sessions are based on scheduled Sessions regardless of whether the Employee participates, unless Employee provides written notice (including via email) of cancellation to the Expert at least 24 hours in advance. Fees for group Sessions are based on scheduled Sessions regardless of whether they occur in practice, unless Customer has cancelled the Session following the preparatory session or at least three days in advance of when such Session was scheduled to take place. If an Employee requests to switch from the assigned Expert, fees in respect of the Session conducted with the initially assigned Expert shall still be payable.
- Representations and Warranties. Each party represents that it is duly organized under applicable law and has the authority to enter into this Agreement and that the execution and performance of this Agreement or any SOW does not conflict with any contractual obligations it has to any third party or legal requirements. Customer further represents it shall use the Platform and Services in compliance with this Agreement and applicable law. Growth Space further represents that it will provide the Services in a professional and workmanlike manner.
- Restrictions. Customer shall not allow any third party to (a) reverse-engineer any software underlying the Platform; (b) circumvent or interfere with the Platform's security features; (c) use a search mechanism to retrieve, data-mine, or reproduce the Platform's navigational structure; (d) copy, modify, distribute, display, sublicense, create derivative works of, download, or use the Platform, Services, or content thereon in any manner not permitted herein; or (e) access another user's account without permission.
- Intellectual Property. Growth Space or its licensors own all right in the Platform, Services and materials thereon, all trademarks and logos therein, and all intellectual property rights in any of the foregoing and in any modifications or updates thereto. Customer has no rights to the Platform or Services other than as expressly provided herein. Growth Space may use feedback provided by Customer without restriction. Customer's Confidential Information (defined below) shall remain the sole property of Customer.
- Confidential Information. Each party may have access to certain non-public or proprietary information of the other party ("Confidential Information"). Neither party may use or disclose Confidential Information except as needed to provide or receive Services or in furtherance of the parties' relationship. Each party agrees to preserve any proprietary markings in Confidential Information. Each party shall treat the other party's Confidential Information with the same degree of care as it affords to its own Confidential Information, including the implementation of protective security measures, but in any event, with a high degree of care. Confidential Information may be disclosed to employees or representatives with a need to know the information in order to fulfil its obligations hereunder, provided that they are bound by confidentiality obligations at least as restrictive than those herein. Each party shall be responsible for harm caused by disclosure to its personnel. Each party shall notify the other party of any unauthorized disclosure within a reasonable timeframe. The following shall not be considered Confidential Information if it can be demonstrated in writing that such information: (a) was in the public domain when received (through no fault of recipient); (b) was rightfully possessed by recipient with no confidentiality obligation; or (c) was developed without use of or reference to any Confidential Information. Confidential Information may be disclosed in response to a legal requirement if the recipient, (where permitted) provides notice of such requirement, cooperates to oppose disclosure, and only discloses Confidential Information to extent required. This Section 7 shall survive termination of the Agreement for three years.
- Indemnification. Each party shall defend and indemnify the other party and its personnel ("Indemnitee") from and against all damages, losses, liabilities, or expenses finally awarded by court or agreed in settlement in connection with an actual or threatened claim or proceeding by any third party relating to: (1) on the part of Growth Space, a claim that the Platform or Services infringe any right of any third party, including, but not limited to patent or copyright, or misappropriates any trade secret, or (2) on the part of Customer, breach of this Agreement by the Customer or Customer's use or misuse of the Platform and/or Services. The indemnifying party may not settle such suit without the written consent of Indemnitee. Indemnitee may be represented in any such suit by counsel of its own choosing at its own expense.
- Non-Circumvention and Non-Solicitation. During the Term and for a period of one (1) year thereafter, Customer shall not, directly or indirectly, including on behalf of others, solicit, divert, or independently engage any Expert for the purpose of obtaining coaching, advisement, or similar services for its personnel. Growth Space shall not and shall ensure that Experts have undertaken not to solicit Customer's Employees for employment. This Section 9 shall not apply in the event an Expert approaches Customer independently without any solicitation by Customer.
- DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. GROWTH SPACE EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE PLATFORM AND SERVICES INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES RELATING TO THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST DATA, INCLUDING ANY DAMAGES CAUSED BY EXPERTS. EACH PARTY'S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND/OR ANY CAUSE OF ACTION IS LIMITED TO AMOUNTS PAID BY CUSTOMER IN RESPECT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR CAUSE OF ACTION ("CAP"). WITHOUT DEROGATING FROM THE ABOVE, WITH RESPECT TO FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, AND/OR INTELLECTUAL PROPERTY RIGHTS HEREUNDER, EACH PARTY'S MAXIMUM CUMULATIVE LIABILITY IS LIMITED TO FIVE (5) TIMES THE CAP.
- Term. This Agreement will be in effect for a period of 12 months following the Effective Date and may be renewed for additional 12-month periods upon the agreement of both parties (collectively, the "Term"). The Term may only be terminated as permitted herein or in any additional written agreement between the parties specifically referring to this Agreement. Any SOW shall terminate as of the Expiration Date listed therein. Either party may terminate this Agreement immediately upon written notice in case of breach by the other party. Sections 4-11 and 14 shall survive termination or expiration of this Agreement.
- General. This Agreement, including any SOW or email confirmation, supersedes all other understandings between the parties regarding such matters. Amendments shall not be effective unless mutually agreed in writing. Neither party may assign this Agreement without the other party's consent, provided that either party may assign all of its rights and obligations under this Agreement to a purchaser of [substantially] all of its assets or share capital. Nothing herein creates any agency, employment, or joint-venture relationship. This Agreement shall be governed by the laws of the State of Delaware and the parties consent to the exclusive jurisdiction of the competent courts of the State of Delaware regarding disputes hereunder.
Last Update: June 2021