Last updated: 10 September 2020
These General Terms, the Acceptable Use Rules and the Payment Terms, (collectively, the “GrowthSpot Terms”) govern access to and use of any websites, products or services (collectively “Services”) offered by GrowthSpot (“GrowthSpot” or “we”).
OUR SERVICES ARE NOT FOR CONSUMERS OR PRIVATE OR HOUSEHOLD PURPOSES, ONLY FOR BUSINESSES AND PROFESSIONAL USERS. YOU MUST NOT ACCESS OR USE OUR SERVICES, UNLESS (A) YOU ARE ACTING IN A BUSINESS OR PROFESSIONAL CAPACITY, (B) YOU ACCEPT THE GROWTHSPOT TERMS ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR ORGANIZATION, AND (C) IF YOU ARE ACTING ON BEHALF OF YOUR ORGANIZATION, YOU ARE AUTHORIZED TO DO SO. IF YOU ACCESS OR USE ANY OF OUR SERVICES, THE GROWTHSPOT TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND, IF APPLICABLE, YOUR ORGANIZATION (COLLECTIVELY REFERRED TO AS “YOU” HEREINAFTER) AND GROWTHSPOT.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12 BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND GROWTHSPOT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.1 GrowthSpot Terms. These General Terms, apply to all Services.
2.1 Access to Services. We grant you a non-exclusive, non-transferable, revocable, limited, personal right to access our Services. We do not authorize other use or access, including, without limitation, by robots, spiders, crawlers and scraping technologies. You are responsible for setting your own username and password (“Login Information”) and should not allow any third party to access or use your Login Information. You are responsible for all individuals that access the Services through your Login Information (“Authorized Users”). You and your Authorized Users may use the Services only for your own business, not to access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services.
2.2 Advertising Platform Account. We provide you with technical functionality which allows you to publish and manage ads on third party advertising platforms (“Advertising Platforms”), including Facebook, Instagram and Google. Therefore, in order to use our Services, you must be a registered Advertising Platform user and have an advertising account with one or more Advertising Platforms. You agree that we may receive payments from the Advertising Platforms based on your ad spend, pursuant to our agreements with the Advertising Platforms.
2.3 Ads Content. You are solely responsible for all Ads Content that you or your Authorized Users upload, publish, display, link to, or otherwise make available via the Services. We have the right but no obligation to review, filter, block, or remove any Ads Content that you publish or make available via our Services. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ADS CONTENT POSTED ON OR MADE AVAILABLE THROUGH OUR SERVICES BY YOU OR ANY OTHER THIRD PARTY. “Ads Content” includes all information, text, images, photos, videos, audio, documents and other content in any media and format which is provided or made available to us in connection with your use of the Services.
3.1 We are not responsible for any services provided by the Advertising Platforms, or for any other services, information or content accessed or purchased through GrowthSpot, which you may be able to access, use or connect to with our Services (together with the Advertising Platform services, the “Third-Party Services”). If you access a Third-Party Service through us, you do so at your own risk. When accessing any Advertising Platform services, you are responsible for complying with all of the terms, conditions, policies and guidelines which the applicable Advertising Platforms impose on their users (the “Third-Party Terms”), including (but not limited to) those published at:
You remain responsible for the payment of the ads purchased through our Services directly to the Advertising Platforms.
3.2 You understand that we have the right but no obligation to preview, verify, flag, modify Ads Content and that you must bear all risks associated with the publishing of ads on the Advertising Platforms. You also agree that Services interoperate with the Advertising Platforms, and that our Services are highly dependent on the availability of the Advertising Platforms. If at any time the Advertising Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Advertising Platforms as a result of a malfunction in our Services.
4.1 Confidentiality. If we share non-public information about our Services, you must keep it confidential and use reasonable security measures to prevent disclosure or access by unauthorized persons.
4.2 Personal Data. We will not use or control any of the personal data that you process with our Services, we merely offer you tools with which you can process data. You must comply with all applicable data privacy and data protection laws.
5.1 Ads Content. You retain all right, title and interest to your Ads Content which you may upload to or with our Services. We will not use your Ads Content except for purposes of providing, supporting and improving our Services and in full compliance with all GrowthSpot Terms.
5.2 Feedback. You may from time to time provide suggestions, comments or other feedback to GrowthSpot with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. Notwithstanding the foregoing, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
5.3 Services. We retain all right, title, and interest in and to the Services.
You must timely pay all applicable fees based on our Payment Terms, except with respect to Services that we expressly offer free of charge. If you sign up for a plan that is subject to charges, we may require you to provide us with a valid credit card or other payment method and start charging you automatically on the first day after one month service is over, unless you cancel your account before the end of subscription month. You remain responsible at all times for the direct payment of the ads purchased through our Services to the Advertising Platforms.
The GrowthSpot Terms shall remain in effect until either of us terminate them in accordance with this Section 7.
7.1 Cancellation of Services. You can cancel your Services at any time by sending us a cancellation email at email@example.com . If you cancel paid Services, you must pay throughout any agreed term and you are not entitled to any refunds.
7.2 Cancellation by GrowthSpot. We may also cancel your Services, at our sole discretion, for any reason, without notice at any time. If you prepaid for Services for a specified term, and we terminate your Services under this section, we shall offer a pro rata refund of the prepaid fees.
7.3 Termination for Cause. We may both terminate the GrowthSpot Terms, effective immediately, if the other party commits a material breach of the GrowthSpot Terms and fails to remedy such breach within thirty (30) days of receiving a written request to cure. Additionally, we may suspend or terminate your access to the Services if you violate any General Rules or Third-Party Terms, or use the Services in a way that creates risk or possible legal exposure to us, other customers or others. If you terminate the GrowthSpot Terms for cause, we will refund any prepaid fees as of the termination date.
7.4 Effects of Termination. Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these GrowthSpot Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the GrowthSpot Terms that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of the GrowthSpot Terms.
8.1 No Express Warranties. WE OFFER THE SERVICES “AS IS,” WITHOUT ANY EXPRESS WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, UNLESS WE EXPRESSLY AGREE TO A LIMITED WARRANTY WITH A SPECIFIC REFERENCE TO THIS SECTION 8.1.
8.2 Disclaimers. YOU USE ALL SERVICES AT YOUR OWN RISK. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DISCLAIM ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES (INCLUDING ADVERTISING PLATFORM SERVICES) OR ACTIVITIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ADVERTISING PLATFORMS, ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN (INCLUDING ADS CONTENT). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE GROWTHSPOT TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THE GROWTHSPOT TERMS IN ACCORDANCE WITH SECTION 7, AS APPLICABLE. SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.
You shall defend, indemnify, and hold harmless GrowthSpot, and our affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (a) alleging that your Ads Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (b) relating to, or arising from, Ads Content or your breach of any GrowthSpot Terms or (c) relating to, or arising from, your use of any Third-Party Services (including your breach of any Third-Party Terms).
11.1 CAP. OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE FEES WE RECEIVED FROM YOU FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
11.2 EXCLUSION. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THE GROWTHSPOT TERMS. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
11.3 SCOPE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL (A) ALSO BENEFIT OUR AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS, (B) APPLY TO ANY CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY, AND (C) NOT APPLY IF YOU CAN PROVE THAT: (I) OUR NEGLIGENCE CAUSED DEATH OR PHYSICAL INJURY; (II) WE CAUSED DAMAGES INTENTIONALLY OR WITH WILLFUL MISCONDUCT; OR (III) APPLICABLE LAW DOES NOT ALLOW A LIMITATION AS CONTEMPLATED IN THE GROWTHSPOT TERMS (IN WHICH CASE THE LIMITATIONS OF LIABILITY IN THE GROWTHSPOT TERMS SHALL BE REDUCED TO THE MAXIMUM LIMITATION THAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW).
11.4 BASIS OF BARGAIN. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11 IS TO ALLOCATE THE RISKS UNDER THESE GROWTHSPOT TERMS BETWEEN THE PARTIES AND LIMIT GROWTHSPOT’S POTENTIAL LIABILITY IN APPROPRIATE RELATION TO THE FEES CHARGED UNDER THE GROWTHSPOT TERMS, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE GROWTHSPOT TERMS.
12.1 Choice of Law. These GrowthSpot Terms and any dispute arising out of or in connection with these GrowthSpot Terms or Services (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of these GrowthSpot Terms, by and under law of Hong Kong, without giving effect to conflicts of law principles thereof.
12.2 Exclusive Jurisdiction, Jury Trial Waiver. Except as provided in Subsection 12.3 and 12.4, all Disputes shall be subject to, and the parties irrevocably accept the exclusive jurisdiction of the courts located in Hong Kong. The parties irrevocably waive any right to a trial by jury.
12.3 Injunctive Relief. Either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 12.3 may be enforced by any court of competent jurisdiction.
12.4 Binding Arbitration. Except as provided in Section 12.3, all Disputes shall be finally resolved by binding arbitration before three (3) arbitrators pursuant to the rules (“Rules”). In accordance with the Rules, each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in the chosen law and the online advertising industry. At either party’s request, the arbitrators shall give a written opinion stating the factual basis and legal reasoning for their decision. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings shall be conducted in the English language and take place in Hong Kong, or any other place on which all three arbitrators agree unanimously.
12.5 Class Action Waiver. YOU AND GROWTHSPOT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and GrowthSpot agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
12.6 Attorneys Fees. If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of these GrowthSpot Terms or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will, subject to Section 11, be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
13.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law, or otherwise, without our prior written consent. Any attempted assignment or transfer without such consent will be void. We may freely assign or delegate all rights and obligations under these GrowthSpot Terms, fully or partially, without notice to you. We may also substitute by way of unilateral novation, effective upon notice to you, any third party that assumes our rights and obligations under these GrowthSpot Terms.
13.2 Severability. Each provision of these GrowthSpot Terms is severable. If any provision of these GrowthSpot Terms is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of these GrowthSpot Terms or of that provision in any other jurisdiction.
13.3 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including without limitation: if one or several third parties change their offerings or terms or no longer offer their services to you or GrowthSpot at reasonable terms; denial of service attacks; acts of God; acts of war; acts of terrorism; labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
13.4 Entire Agreement. These GrowthSpot Terms constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. We do not accept and we hereby expressly reject any additional terms that you may present, including, without limitation, terms in a unilateral notice from you to us or preprinted on a purchase order form or any other form generated by you; any such terms shall be null and void.
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