Growpolis Master Subscription Agreement

Effective as of 1 June 2020

 

This Agreement governs Your acquisition and use of Our Services. In addition to this Agreement, when You make an Order for Services provided by Our Partners via the GROWPOLIS® Platform, you will also enter into an agreement with said Partners and their terms and conditions are applied to such Services ordered by You. This Agreement remains in force also in between and after the provision of Services by our Partners.

If You register for Free Services or for a Free Trial, the applicable terms of this Agreement will also govern those Free Services or that Free Trial.

If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement, in which case the terms “You” or “Your” shall refer to such entity and all of its affiliates. If You do not have such authority, or if You do not agree with the terms and conditions of this Agreement, You must not accept this Agreement and may not use the Services.

By accepting this Agreement, by clicking a box indicating Your acceptance, by executing an Order that references this Agreement or, for Free Services, by using such services, You agree to the terms of this Agreement.

This Agreement was last updated on June 1, 2020. It is effective between You and Us as of the date of Your accepting this Agreement.

+ 1. Definitions

“Agreement” means this Master Subscription Agreement.

“We”, “Us” or “Our” means Growpolis, a company established and registered in Finland on June 21, 2018 with the business registration number 2921163-7.

“You” or “Your” means, in the case of an individual accepting this Agreement on behalf of a legal entity, the legal entity for which you are accepting this Agreement, and Affiliates of that entity which have entered into Order Forms.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“User” means, in the case of an individual accepting this Agreement on behalf of a legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We) have supplied a user identification and password. Users may include, for example, Your employees and consultants working for You.

“Partner” means Our authorized service provider offering and providing the Services to You online at the Platform.

“Platform” means Our technical operating environment running on Our website(s), including any subdomains thereof, through which the Services are made available under the GROWPOLIS® brand.

“Services” mean the products and services that are ordered by You under an Order or provided to You free of charge (as applicable) or under a Free Trial, and made available online at the Platform.

“Beta Services” mean the Services or functionality that may be made available to You to try at no additional charge which is clearly designated as beta, pilot or by a similar description.

“Free Services” mean the Services that Us and the Partner make available to You free of charge. Free Services exclude Services offered as a Free Trial and Purchased Services.

“Purchased Services” mean the Services that You or Your Affiliate purchase under an Order, as distinguished from Free Services or those provided based on a Free Trial.

“Free Trial” means the Purchased Services that Us and/or the Partner makes available to You exceptionally free of charge for a fixed period of time.

“Order” means an online order placed through the Platform and accepted by the Partner, specifying the Services to be provided hereunder that is entered into between You and Our Partner(s), including any addenda and supplements thereto. Each Order will become binding only after it has been confirmed in writing by Us and/or the Partner.

“Content” means Our and/or Our Partners’ documentation and other materials (such as but not limited to photos and videos) made available as a part of the Services or otherwise at the Platform.

“User Material” means documentation and other materials (such as but not limited to photos and videos) uploaded to the Platform by You and/or Your Users.

“Your Data” means electronic data and information submitted by or for You to the Platform, or generated in the course of Your use of the Services and/or the Platform, excluding User Material.

“Documentation” means the applicable usage guides and policies, as updated from time to time, accessible at the Platform.

“Non-Growpolis Application” means software, service or other application provided to You by Our Partner or a third party in relation to the Services.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms and Trojan horses.

“Force Majeure” means circumstances beyond Our and/or Our Partners’ reasonable control, including without limitation actions of government, accidents, fire, epidemic, pandemic, labor disputes, power or telecommunications failures, Internet service provider failure or delay, or denial of service attacks.

+ 2. Relationship of the parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

+ 3. Free Services and Free Trial

3.1. Free Services

We may make Free Services available to You. Use of Our Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section Free Services (Free Services) and any other portion of this Agreement, this section shall control. Possible Free Services are provided to You without charge up to certain limits defined in relevant Documentation.

You agree that We, in Our sole discretion and for any reason, may terminate Your access to the Free Services. You agree that any termination of Your access to the Free Services may be without prior notice, and You agree that We will not be liable to You or any third party for such termination. You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law.

NOTWITHSTANDING SECTIONS Representations, warranties, exclusive remedies and disclaimers (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND Indemnification by Us (INDEMNIFICATION BY US), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND OUR LICENSORS AND PARTNERS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION Limitation of liability (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

3.2. Free Trial

If You register on the Platform for a Free Trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear in connection with the Free Trial registration. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

YOUR DATA THAT YOU ENTER INTO THE PLATFORM, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING SECTIONS Representations, warranties, exclusive remedies and disclaimers (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND Indemnification by Us (INDEMNIFICATION BY US), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND GROWPOLIS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, GROWPOLIS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION Limitation of liability (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO GROWPOLIS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

+ 4. Our responsibilities

4.1. Provision of Purchased Services

We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Orders, (b) provide applicable standard support for the Purchased Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by Force Majeure.

4.2. Beta Services

We may make Beta Services available to You at no charge. Beta Services may be subject to additional terms. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

Your use of Beta Services is voluntary. Beta Services are intended for evaluation purposes and not for production use, are not supported. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services shall apply equally to Your possible use of Beta Services.

Unless otherwise stated, any Beta Services trial period will expire upon the earlier of designated trial period end date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation.

4.3. Protection of Your Data

We will maintain administrative, technical and physical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section Compelled disclosure (Compelled Disclosure) below, or (c) as You expressly permit.

To the extent that We process Personal Data (as defined in Our Privacy Policy), on Your behalf, in the provision of the Services, the terms of the data processing addendum at https://www.growpolis.com/terms/data-processing-agreement/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.

4.4. Our personnel

We will be responsible for the performance of Our personnel and their compliance with Our obligations under this Agreement, except as otherwise specified in this Agreement.

+ 5. Use of Services and Content

5.1. Usage limits

Services and Content may be subject to usage limits and restrictions, including, for example, the quantities specified in Orders and Documentation. Unless otherwise specified, a User’s password may not be shared with any other individual.

If You exceed a contractual usage limit specified in Your Order, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section Invoicing and payment (Invoicing and payment).

5.2. Your responsibilities

You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Orders, (b) be responsible for the accuracy, quality and legality of Your Data and Your Material, the means by which You acquired Your Data and Your use of Your Data and Your Material with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Orders and applicable laws, government regulations and Your entity’s data security and other possible policies, and (e) comply with additional terms and conditions that apply when the Services are provided by our Partners.

5.3. User restrictions

You will not
a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order or the Documentation,
b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content,
c) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or access or use any of Our intellectual property except as permitted under this Agreement, an Order, or the Documentation,
d) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein,
e) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,
f) use a Service to store or transmit Malicious Code,
g) attempt to gain unauthorized access to any Service or Content,
h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof,
i) copy Content except as permitted herein or in an Order or the Documentation,
j) frame or mirror any part of any Service or Content, or
k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent.

Any use of the Services in breach of this Agreement, Documentation or Order, by You or Users that in Our consideration threatens the security, integrity or availability of the Services, may result in Our immediate suspension of the Services. We will, however, use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.

5.4. Removal of Content

If We are required by a Partner or another licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your account. If You do not take required action in accordance with the above, We may disable the applicable Content and Service until the potential violation is resolved.

+ 6. Partners

6.1. General

We make available third-party products or services, including, for example, consulting services by Our Partners.

Contractual relationship related to the Services provided to You by any of Our Partners based on Your Order is between You and said Partner. Terms and conditions of Our Partners apply to Your Order in addition to the terms of this Agreement. Said terms and conditions are available within the Service descriptions prior to Your Order. Your payment terms are always specified by this Agreement.

6.2. Non-Growpolis Applications and Your Data

If You choose to use a Non-Growpolis Application with a Service, You grant Us permission to allow the Non-Growpolis Application and its provider to access Your Data and Your Material as required for the interoperation of that Non-Growpolis Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data or Your Material resulting from access by such Non-Growpolis Application or its provider.

6.3. Interoperation with Non-Growpolis Applications

The Services may contain features designed to interoperate with Non-Growpolis Applications. To use such features, You may be required to obtain access to such Non- Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Growpolis Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund or other compensation, if for example and without limitation, the provider of a Non-Growpolis Application ceases to make the Non-Growpolis Application available for interoperation with the corresponding Service features in a manner acceptable to Us.

+ 7. Fees and payment for Purchased Services

7.1. Fees

You will pay all fees specified in Orders. Except as otherwise specified herein or in an Order, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) chosen Service level cannot be decreased during the relevant subscription term.

7.2. Invoicing and payment

You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services defined in the Order. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency defined in the Order.

If it is specified in the Order that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order. Payment terms are further specified within the Order. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. We and Our Partners are entitled to require receipt of payment before commencement and fulfillment of Our / their Services.

7.3. Overdue charges

If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 10 % of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, and/or (b) We may condition future subscription renewals and Orders on payment terms shorter than those specified in Section Invoicing and payment (Invoicing and payment).

7.4. Suspension of Service and acceleration

If any amount owing by You under this or any other agreement for the Services is 14 or more days overdue (or 7 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section Manner of giving notice (Manner of giving notice) for billing notices, before suspending Services to You.

7.5. Payment disputes

We will not exercise Our rights under Section Overdue charges (Overdue charges) or Suspension of Service and acceleration (Suspension of Service and acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

7.6. Taxes

Applicable taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) will be added to the charged fees. You are responsible for paying all Taxes associated with Your purchases hereunder.

If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section Taxes, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

+ 8. Proprietary rights and licenses

8.1. Reservation of rights

Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our Partners and other licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

8.2. Access to and use of Content

You have the right to access and use applicable Content subject to the terms of applicable Order, this Agreement and the Documentation.

8.3. License to use Your Data and Your Material

You grant Us, Our Affiliates and applicable Partners and contractors a worldwide, limited-term license to store, copy, display, process and use any of Your Data and User Material, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data or User Material.

In addition, during the term of this Agreement We may use Your Data and User Material for creating added value for You in the form of data analyzes, recommendations and predictions, and for improving and other development of our Services. After the term of this Agreement We may continue use of the above specified, Your Data and User Material only in a pseudonymized or anonymized form.

8.4. License to use feedback

You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ and Our Partners’ Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ or Our Partners’ Services.

+ 9. Confidentiality and client references

9.1. Definition of Confidential Information

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data and User Material; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of non-public Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, Partners and other contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with Us and/or the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

Neither party will disclose the terms of any additional client specific agreement or any Orders to any third party other than its Affiliates, Partners, subcontractors, legal counsels and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, Partner, legal counsel or accountants will remain responsible for such Affiliate’s, Partner’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.

9.2. Compelled disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

9.3. Client references and testimonials

Regardless of the above specified confidentiality obligations We may use You as Our public client reference in Our marketing and communications when You have used any of the Purchased Services. Client reference may disclose that You are or have been a registered client of the Platform and which Partners have provided Purchased Services to You and the categories of the Purchased Services (such as “accounting services”). We may contact You to agree upon a more detailed client testimonial.

In addition to the above stated, the Partners which have provided Purchased Services to You may also use You as their public client reference in their marketing and communications in a way described above. For the sake of clarity, additional terms and conditions of Our Partners providing the Purchased Services may include separate client reference clauses applicable to You.

+ 10. Representations, warranties, exclusive remedies and disclaimers

10.1. Representations

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

10.2. Our warranties

We warrant that during an applicable subscription term (a) this Agreement, the Orders and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Growpolis Applications” section above, We will not materially decrease the overall functionality of the Platform. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or payment upon termination” sections below.

10.3. Disclaimers

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

+ 11. Mutual indemnification

11.1. Indemnification by Us

We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that Our Platform infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You

a) promptly give Us written notice of the Claim Against You,
b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and
c) give Us all reasonable assistance, at Our expense.

If We receive information about an infringement or misappropriation claim related to Our Platform, We may in Our discretion

i. modify the Platform at Our own cost so that it is no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, or
ii. otherwise enable Your continued use of the Services.

The above defense and indemnification obligations do not apply if

1. the allegation does not state with specificity that our Platform is the basis of the Claim Against You;
2. a Claim Against You arises from the use or our Platform or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if Our Platform or use thereof would not infringe without such combination; or
3. a Claim Against You arises from User Material, Your Data, a Non-Growpolis Application or Your use of the Platform in violation of this Agreement, the Documentation or applicable Orders.

11.2. Indemnification by You

You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that

a) any of Your Data or Your use of Your Data with our Services,
b) any of User Material or Your use of User Material with our Services,
c) a Non-Growpolis Application provided by You, or
d) the combination of a Non-Growpolis Application provided by You and used with Our Platform,

infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Platform or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Orders (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We
a. promptly give You written notice of the Claim Against Us,
b. give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and
c. give You all reasonable assistance, at Your expense.

11.3. Exclusive remedy

This Section Mutual indemnification states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section Mutual indemnification.

+ 12. Limitation of liability

In order to be valid and enforceable, all claims for damages against Us must be made within one month from the date the damage was or should reasonably have been noticed by You and in all circumstances at the latest within 3 months from the damaging event.

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

IN NO EVENT SHALL OUR AGGREGATE LIABILITY TOGETHER WITH ALL OF OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

IN NO EVENT WILL WE HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY DAMAGES CAUSED BY THE CONTENT, PERFORMANCE AND/OR DELIVERY OF OUR PARTNER(S).

+ 13. Term and termination

13.1. Term of Agreement

This Agreement commences on the date You first accept it and continues until terminated in accordance with this Agreement. This Agreement is always valid until the end of a subscribed term of Purchased Services, unless We terminate the Agreement for cause.

13.2. Termination for convenience

A party may terminate this Agreement upon 60 days written notice.

13.3. Termination for cause

A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

13.4. Refund or payment upon termination

All fees and charges payable by You under this Agreement are non-refundable by Us, excluding fees for the Services and the Content provided directly by Us in the event that this Agreement is terminated for a cause attributable to Us. In such a case We will refund You a portion of the fees for the period after the effective date of the termination. For clarity, in no event will any termination of this Agreement relieve You of Your obligation to pay any fees payable for the period prior to the effective date of the termination.

13.5. Your data portability and deletion

Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless otherwise agreed in this Agreement or legally prohibited.

13.6. Surviving provisions

The sections titled “Free Services and Free Trial”, “Fees and payment for Purchased Services”, “Proprietary rights and licenses”, “Confidentiality and client references”, “Representations, warranties, exclusive remedies and disclaimers”, “Mutual indemnification”, “Limitation of liability”, “Term and termination”, “Notices, governing law and jurisdiction” and “General Provisions” will survive any termination or expiration of this Agreement.

+ 14. Notices, governing law and jurisdiction

14.1. Manner of giving notice

Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the fifth business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant contact person designated by You.

14.2. Agreement to governing law and jurisdiction

You agree that all disputes between You and Us shall be governed by the laws of Finland, regardless of conflict of law provisions.

Any dispute, controversy or claim between You and Us arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland and the language of the arbitration shall be Finnish or English.

Regarding dispute, controversy or claim between You and any Partner, please see section 6.1.

+ 15. General provisions

15.1. Entire Agreement

This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

15.2. Amendments

We are constantly developing the Platform and the ways the Services are offered over the Platform. In the course of Our development work we may find it necessary or mutually beneficial to amend the terms and conditions of this Agreement. In such a case we will notify You of the amendments, publish an updated version of this Agreement, and inform You of the effective date of the amendments. If You do not find the amendments acceptable, You should contact Us and inform Us of Your concerns, in which case We will consider Your enquiry in good faith and work to find a solution reasonably acceptable to You.

In other respects, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and approved by the party against whom the modification, amendment or waiver is to be asserted.

15.3. Order of precedence

In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the Documentation, and the applicable Order.

15.4. Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

15.5. Third-party beneficiaries

There are no third-party beneficiaries under this Agreement.

15.6. Waiver

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

15.7. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.