Terms of Service
Effective Date: April 23, 2023
Please read these Terms of Service (the “Agreement”) carefully before using the http://www.growth-operations.com website and the Growth Operations application (together, or individually, the “Services”) operated by Growth Operations LLC (“Growth Operations”, “us”, “we”, or “our”). Your (“Customer,” “you”, or “your”) access to and use of the Services is conditioned upon your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users and others who wish to access or use the Services. By accessing or using the Services you agree to be bound by this Agreement. If you disagree with any part of this Agreement then you do not have permission to access the Services.
- “Activation Link” means the link through which Customer may sign up and make payment in order to receive Services.
- “Documentation” means Growth Operations’ then-current generally available documentation, specifications, user manuals, etc. for the Services, which can be located at http://www.growth-operations.com or such other URL as Growth Operations may provide from time to time, as well as any documentation included in or attached to any Order Details or such other Services-related documents provided to Customer.
- “Order Details” means the transaction details displayed during your signup process for the Services describing the Services and pricing purchased by Customer and which incorporates these Terms of Service.
- “Personal Data” means any information relating to an identified or identifiable individual.
- “Sensitive Personal Information” means Personal Data subject to specialized security regimes, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), and the standards promulgated by the PCI Security Standards Council (“PCI”).
- “Services” means Growth Operations’ products and/or services provided to Customer.
- “Subscription Term” means the term for the Services set forth in the applicable Order Details or Activation Link.
- “User” means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and its Affiliates.
- General Commercial Terms
- Access; Trial Evaluation. During the term of your subscription identified in the Order Details, we will provide you with access to the Services. We may make the Services or any portion of them available to you on an evaluation basis until the earlier of (i) the end of the applicable evaluation period to which you subscribed, (ii) upon such date that you purchase a subscription to the Services, or (iii) any termination by Growth Operations at any time in its sole discretion.
- Fees and Payment. Except in connection with a trial evaluation period (where applicable), you agree to pay all applicable fees for the Services as set forth on the invoice unless you provide written notice of a dispute regarding such fees no later than 30 days after the invoice date. Any and all payments you make to us for the Services are final and non-refundable. If we agree to accept your payment via invoice rather than by credit card, full payment must be received within thirty (30) days from the invoice date. We will provide you with notice of non-payment of any undisputed amount due. Unless the full amount not in dispute has been paid, we may suspend your access to the Services thirty (30) days after such notice. We will not suspend the access to the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Services are suspended for non-payment, we may charge a re-activation fee to reinstate your access to the Services.
- Subscription Fees and Payment. If you are paying via a credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a PCI-compliant third party to process payments, and consent to the disclosure of your payment information to such third party. If you are paying by invoice, we will invoice you no later than thirty (30) days before the beginning of the Subscription Term and all other times during the Subscription Term when fees are
- Warranties. Growth Operations represents and warrants that the Services will be provided in a professional and workmanlike manner in accordance with industry standards. Notwithstanding the foregoing, during any trial evaluation period, the Services are provided on a strictly “as is” and “as available” basis.
- Implementation Services. The parties may enter into a Statement of Work (an “SOW”) describing configuration, training, or other implementation services to be provided by Growth Operations or its contractors to Customer. Growth Operations will be responsible for the provision of services specified in the SOW and Customer will be responsible for the provision of any payment and Customer-provided assistance specified in the SOW.
- HubSpot-Related Terms.
- HubSpot Platform. The Services are developed and operate on the HubSpot platform (the “HubSpot Platform”), which is hosted by HubSpot. Your access to and use of the Services requires you to have and maintain an account on HubSpot (a “HubSpot Account”) that is sufficient to provide you with all appropriate licenses and rights necessary to access and use the Services on the HubSpot Platform. In addition to these Terms of Service, your access to and use of the Services is subject to the HubSpot Customer Terms of Service (the “HubSpot TOS”) found here: https://legal.hubspot.com/terms-of-service. Except as set forth in these Terms of Service, in the event of a conflict between these Terms of Service and the HubSpot TOS, the terms of the HubSpot TOS shall control with respect to your access to the HubSpot Platform provided under the HubSpot TOS. For clarity, nothing contained in these Terms of Service shall grant you any rights or licenses with respect to your HubSpot Account or your access to or use of the HubSpot Platform. WITHOUT LIMITING ANYTHING SET FORTH HEREIN, WE SHALL NOT BE LIABLE FOR, AND SHALL NOT BE IN BREACH OF OUR OBLIGATIONS UNDER THESE TERMS OF SERVICE AS A RESULT OF YOUR INABILITY TO ACCESS OR USE THE SERVICES UNDER ANY CIRCUMSTANCES ARISING AS A RESULT OF YOUR INABILITY TO ACCESS THE HUBSPOT PLATFORM FOR ANY REASON, INCLUDING ANY SUSPENSION, TERMINATION, OR EXPIRATION OF YOUR HUBSPOT ACCOUNT.
- Third-Party Services. You acknowledge that access to and use of the Services is dependent upon the proper functioning of the HubSpot Platform and other non-Growth Operations services (“Third-Party Services”) and that Growth Operations has no control over the foregoing. We disclaim responsibility and liability for any inability to access or use the Services, or degradation in the Services’ performance, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, the HubSpot Platform or to any Third-Party Services. You are solely responsible for the configuration of the Services and all technology and services necessary to access and use the Internet, the Services, the HubSpot Platform, and any Third-Party Services.
- Acceptable Use. You agree to comply with HubSpot’s Acceptable Use Policy found here: https://legal.hubspot.com/acceptable-use.
- Use and Limitations of Use.
- Prohibited and Unauthorized Use. You agree that you will not, directly or indirectly, (1) make the Services available to, or use the Services for the benefit of, anyone other than yourself or the Users using the Services on your behalf; (2) sell, resell, license, sublicense, distribute, rent, lease the Services, or include any Services in a service bureau or outsourcing offering; (3) use the Services to send SPAM or store or transmit infringing, libelous, or otherwise unlawful, or tortious content, material or data; (4) store or transmit material or data on or through the Services in violation of law or third-party rights, including without limitation privacy rights or any contract to which you are a party; (5) use the Services to store or transmit malicious or disruptive code; (6) interfere with or disrupt the integrity, security or performance of the Services or third-party data contained therein; (7) attempt to gain unauthorized access to the Services or its related systems or networks; (8) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (9) copy the Services or any part, feature, function or user interface thereof; (10) frame or mirror any part of any Services, other than framing on your own internal intranets; (11) access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (l12 modify, translate, or create derivative works based on the Services or any underlying software; (13) decompile, disassemble, decipher or reverse-engineer the Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, (except to the extent such restriction is expressly prohibited by applicable statutory law) or (14) breach HubSpot’s Acceptable Use Policy as referenced in subsection 2.f.iii. above. Growth Operations may suspend any User’s access to any or all subscription Services without notice in the event of a violation of this Section.
- No Sensitive Information. YOU AGREE NOT TO USE ANY SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE PERSONAL INFORMATION. GROWTH OPERATIONS WILL NOT BE RESPONSIBLE FOR ANY LIABILITY RESULTING FROM YOUR USE OF ANY SERVICES TO COLLECT OR PROCESS SENSITIVE PERSONAL INFORMATION.
- Subscription Term and Termination.
- Term and Renewal; No Refunds. Your initial Subscription Term will be set forth in the Order Details or Activation Link. At the expiration of the initial period, the Subscription Term will automatically renew for additional periods of the same duration unless either party provides the other party with written notice of termination. You will be able to cancel the Services at any time within your Stripe account. In such event, you will be able to access the Services through the end of your then-current subscription period; however, for the avoidance of doubt, Growth Operations will not refund any prepaid Services fees.
- Termination. If either party materially breaches any of its duties or obligations under these Terms of Service or set forth in the Order Details, and such breach is not cured within thirty (30) calendar days of the non-breaching party providing the breaching party of written notice of the breach, the non-breaching party may terminate these Terms of Service.
- Effect of Termination or Expiration. All provisions of these Terms of Service, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- General Legal Terms
- HubSpot Account Modifications. Customer agrees and acknowledges that Growth Operations will access and/or modify its HubSpot data consistent with the delivery of the Services subscribed to by Customer.
- Growth Operations Proprietary Rights. You acknowledge that we retain all right, title and interest in the Services, the Platform, our name, logo or other marks (the “Growth Operations Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Growth Operations Marks. In addition, information provided by Growth Operations as part of provision of the Services is the property of Growth Operations or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use such information, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
- Usage Rights. If you are using our Services on behalf of another party, then you represent and warrant that you have the sufficient and necessary rights and permissions to do so. Growth Operations may collect and use data regarding the use and performance of the Services in aggregated form, without use of any personal data, to analyze and improve the Services and optimize company operations.
- Indemnification. Growth Operations will indemnify, defend, and hold you harmless against any claim made or brought by a third party, and any resulting damages or costs (including reasonable attorneys’ fees) awarded by a court or included as part of a final settlement (“Claim”), against you alleging that your use of the Services in accordance with these Terms of Service or any Order Details infringes or misappropriates such third party’s intellectual property rights. The foregoing obligations do not apply with respect to any Claim based on or arising from (a) unauthorized or illegal use of the Services, (b) your breach of these Terms of Service, (c) your use of the Services combined with products, services, processes, content or materials not supplied by Growth Operations, or (d) the unauthorized use of the Services by a third party using your user information. You will indemnify, defend and hold us harmless, at your expense, against any Claim brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party based upon or arising out of your use of the Services or any of the foregoing clauses (a) – (d) in particular. The indemnified party will promptly: notify the indemnifying party in writing of any such Claim; give the indemnifying party sole control of the defense or settlement of such a Claim; and provide the indemnifying party with any and all information and assistance reasonably requested by it in connection with the defense or settlement of the Claim. The indemnifying party shall not accept any settlement that (i) requires the indemnified party to make an admission of fault or wrongdoing; or (ii) imposes liability not covered by these indemnification provisions without the indemnified party’s consent.
- Confidentiality. Each party acknowledges that as a result of the Services provided, such party (the “Receiving Party”) may receive information from the other party (the “Disclosing Party”) that is marked or otherwise designated as confidential or which a reasonable person would, based on the nature of the information or the circumstances surrounding its disclosure, consider to be confidential (“Confidential Information”). Your Confidential Information includes, but is not limited to, internal business information, contact information including names and email addresses of clients and prospective clients, and other information about clients and prospective clients. Growth Operations’ Confidential Information includes, but is not limited to, information Growth Operations provides in its provision of the Services, its business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Growth Operations. The Receiving Party acknowledges that the Disclosing Party’s Confidential Information will remain solely the Disclosing Party’s property and proprietary information of the Disclosing Party and that the Receiving Party’s knowledge of the Disclosing Party’s Confidential Information may enable the Receiving Party to cause the Disclosing Party’s irreparable harm upon the unauthorized disclosure of such matters. The Receiving Party covenants and agrees that it will not use or appropriate for its own behalf, or disclose or communicate, directly or indirectly, any of the Disclosing Party’s Confidential Information to any external third-party individual, firm, company or other entity or person without the Disclosing Party’s prior written consent, except to the extent necessary to perform its obligations under the Agreement.
The Receiving Party shall take all commercially reasonable steps required to protect the Disclosing Party’s Confidential Information from unauthorized disclosure to any third party and shall keep the Confidential Information protected while stored with industry standard and commercially reasonable measures typically used in similar commercial sectors.
The foregoing obligations of confidentiality do not apply to any information that: (a) is made publicly known without fault of the Receiving Party; (b) is lawfully disclosed to the Receiving Party by a third party having the right to disclose the information; (c) is produced by the Receiving Party pursuant to legal process, or under a court or government agency order to be produced, provided that the Receiving Party shall promptly notify the Disclosing Party of the request or order so that the Disclosing Party has a timely opportunity to seek a protective order or other appropriate relief; or (d) is developed by the Receiving Party independently of the use of or reference to the Disclosing Party’s Confidential Information.
The Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information in Receiving Party’s possession, and all copies thereof, at any time upon the Disclosing Party’s request.
- Publicity. You grant us the right to add your name and company logo to our customer list and website.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS”. FURTHER, EXCEPT AS 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 AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. GROWTH OPERATIONS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING (A) THE SUITABILITY OR COMPLETENESS OF THE SERVICES, (B) THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES, OR (C) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES AND INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID TO GROWTH OPERATIONS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. GROWTH OPERATIONS IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO ALL THIRD-PARTY PRODUCTS THAT YOU USE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES. THIS SECTION DOES NOT APPLY TO A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- General Provisions
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by any of the following: an act of war, hostility or sabotage; act of God; electrical, internet or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. The parties understand and agree that no joint venture, partnership, employment or agency relationship exists between us.
- Compliance with Laws. We will comply with all applicable laws in our provision of the Services. You will comply with all applicable laws in your use of the Services, including the collection and compilation of any Personal Data collected or submitted to the Services.
- No Waiver. No delay in exercising any right or remedy or failure to object will be considered a waiver of such right or remedy, or of any other right or remedy. A waiver on one occasion shall not be a waiver of any right or remedy on any future occasion.
- Severability. If any part of these Terms of Service or of any Order Details is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service will continue in effect.
- Notices. Notice to Growth Operations will be sent to the contact address set forth herein and will be deemed delivered as of the date the notice is actually received. We will send you notices at the address you have provided in your Growth Operations subscription account information. We may give electronic notices by general notice via the Services or may give electronic notices specific to you by email to your email address(es) on record in our account information for you. You must keep all of your account information current.
- Entire Agreement. These Terms of Service (together with any Order Details and Activation Links) constitute the entire agreement between us regarding our Services and supersedes and replaces any prior agreements we might have had between us regarding the Services.
- 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 these Terms of Service (including all Order Details and Activation Links), upon providing written notice to the other party, but without the other party’s consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets.
- No Third-Party Beneficiaries. No person or entity not a party to the Agreement will be a third-party beneficiary.
- Authority. Each party represents and warrants that (a) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into these Terms of Service and to perform its obligations hereunder; (b) these Terms of Service are legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of these Terms of Service do not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Precedence. In the event of a conflict of terms between these Terms of Service and any Order Details, the Order Details will control.
- Disputes. These Terms of Service shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, United States, without regard to its conflict of law provisions. The parties consent to the exclusive jurisdiction and venue in the courts in Boston, Massachusetts, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred.
- Changes. We reserve the right, at our sole discretion, to modify or replace these Terms of Service at any time. If a revision is material, we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised Terms of Service. If you do not agree to the new Terms of Service, you are no longer authorized to use the Services. We also reserve the right to change or discontinue individual features within the Services upon prior written notice by email. To the extent any such changes result in a material reduction of overall functionality without a comparable replacement, we will refund you a pro-rata portion of all prepaid fees associated with the discontinued Services for which no comparable replacement was provided.