Customer Agreement

This GrowthBook Customer Agreement ("Agreement") is entered into as of the date you click "Sign up” or “Agree” or otherwise indicate your assent (the "Effective Date") by and between GrowthBook, Inc. ("GrowthBook") and you ("Customer" or "you").  GrowthBook and Customer are each sometimes individually referred to herein as a "Party" and both entities are sometimes collectively referred to herein as the "Parties."  By clicking "Sign up" or "Agree" or otherwise indicating your assent, by accessing or using the Services (as defined below) or any Services (as defined below), or by entering into an Order Form (as defined below), you agree to be bound by this Agreement.  If you are entering into this Agreement on behalf of an entity, you represent that you have the authority to and you hereby bind such entity to this Agreement.   If you do not have such authority or you do not agree to this Agreement, do not access or use the Services.  This is a legally enforceable contract. 

GrowthBook and Customer, intending to be legally bound, agree as follows:

1. Services.
   
   1. Provision of Services.  GrowthBook will make certain products and services (collectively, "Services") available to Customer pursuant to this Agreement and the applicable Order Form(s) or through GrowthBook’s software ("Software").  An "Order Form" is an ordering document that (a) specifies the Services to be provided thereunder; (b) is governed by the terms of this Agreement; and (c) is entered into between Customer and GrowthBook.  Each Order Form, which may include supplemental terms and conditions, is incorporated into this Agreement by reference.  GrowthBook grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the applicable subscription term to access and use the Services for Customer's internal business purposes in accordance with this Agreement. The Software may include code that is governed by licenses from third parties, including open source licenses.  Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by GrowthBook regarding future functionality or features.  
   2. Access.  Any access to the Services by or on behalf of Customer shall be (a) adequately and appropriately monitored by Customer; (b) limited solely to then-current employees, consultants, contractors, or agents of Customer whom Customer has expressly authorized for such access; and (c) subject to, and Customer shall ensure that each Authorized User (as defined below) agrees to and complies with, GrowthBook’s then-current End-User Terms of Service.
   3. Additional Services & Modules.  GrowthBook may, from time to time, offer additional modules and value added Services in connection with the Services.  Customer shall not be obligated to purchase any additional Services, but in the event Customer agrees to use any additional Services, Customer will be charged accordingly.
   4. Affiliate Access and Use.  Customer may, at its option, provide license to the Services to one or more Customer Affiliates, subject to this Agreement (“Affiliate User”). If Customer does so, it will be wholly responsible for Affiliate Users’ compliance with the terms of this Agreement and all acts and omissions of such Affiliate Users. No Affiliate User will have the right to take any legal action against GrowthBook under this Agreement or any Order Form.
   5. Fees.  Access to Services that Customer purchases or licenses is provided for the fees set forth in each Order Form, and Customer shall pay GrowthBook all such fees in accordance with the payment terms set forth in the applicable Order Form.  With respect to Services received by Customer for which an Order Form is not in effect, Customer shall pay GrowthBook for such Services in accordance with the pricing set forth on Customer’s website at the time Customer purchases such Services.  If an Order Form is not in effect, when you subscribe to paid Services, you will be asked to select a plan to access the Services, which specifies: (a) the Services you will receive and (b) the fee you must pay to GrowthBook in exchange for your right to access the Services. All such information is incorporated into this Agreement by reference.  Customer may also make purchases, or incur pass-through fees, via the Software.  Customer shall acknowledge that by continuing with any such transaction, Customer authorizes any additional charges associated with such transaction (including any applicable charges for cancelling such transaction). All payment obligations are non-cancelable, and all fees paid are non-refundable.  Unless the Parties have entered into an Order Form, Customer acknowledges that GrowthBook reserves the right to modify pricing and/or pricing models at any time.  If the Parties have entered into an Order Form, pricing and/or pricing models may be modified by notifying Customer prior to renewal.
   6. Payment.  Customer authorizes GrowthBook to charge, debit or otherwise obtain from Customer’s designated payment method for all payments due.  Customer is responsible for providing complete and accurate billing and contact information to GrowthBook and notifying GrowthBook of any changes to such information.  In the event that a scheduled payment is declined or fails for any reason, GrowthBook shall notify Customer of such failure and Customer shall provide updated payment within forty-eight (48) hours.  If any amount due is not received by GrowthBook by the due date, then without limiting any of GrowthBook’s rights or remedies (whether under this Agreement, at law, in equity or otherwise), GrowthBook may take any or all of the following actions: (a) charge late interest on such overdue amounts at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; or (b) suspend access to any or all Services.
   7. Taxes.  Customer will be responsible for paying or, at GrowthBook’s option, reimbursing GrowthBook for, all taxes, if any, based upon the provision of the Services, including federal, state and local property, privilege, sales, use, excise or similar taxes, other than taxes on GrowthBook’s net income, property, and employees.  With respect to any payment or reimbursement obligation of Customer in connection with this Agreement, Customer hereby authorizes GrowthBook to, without prior notice and without any further approval, deduct such amounts from any prepaid or outstanding balance or to charge, debit or otherwise obtain such amounts from any designated payment method, as applicable.
   8. Exclusivity.  This Agreement is non-exclusive.  Nothing in this Agreement shall preclude GrowthBook from (a) marketing, selling, integrating, licensing, providing or maintaining any products or services for the benefit of any third party; or (b) conducting any business or developing or commercializing any products or services (even if such business, products or services are competitive with any of Customer’s businesses, products or services), provided that GrowthBook is not expressly violating the terms of this Agreement with respect to such activities. During the term of this Agreement, and for a period of two (2) years thereafter, Customer shall not directly or indirectly develop, market, sell or otherwise commercialize any products, software, systems or services competitive with, substantially similar to or substitutable for any products, software, systems or services developed, marketed, sold or otherwise commercialized (whether before, during or after the term of this Agreement) by GrowthBook.
   9. Free Trial.  If Customer obtains a free trial or free Services, the applicable provisions of this Agreement will also govern that free trial or those free Services.  Such free trial or free Services might be services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly indicated as beta, pilot, developer preview, non-production, evaluation, or another similar description.  GrowthBook will make such Services available to Customer free of charge until the earlier of (a) the end of the free trial period, (b) the start date of any Order Form for such Services, or (c) termination by GrowthBook in its sole discretion.  Additional trial terms and conditions may appear on GrowthBook’s website or the Services, and any such additional trial terms and conditions are incorporated into this Agreement by reference.
2. Customer Responsibilities.
   
   1. Authorized Users.  Customer shall be responsible for Authorized Users’ compliance with this Agreement, compliance with the law, and use of the Services.  An "Authorized User" is an individual that (a) is an employee, consultant, contractor, or agent of Customer; and (b) has been provided personal access credentials to the Services by Customer, or at Customer’s request.  
   2. Use Restrictions.  Customer shall not, and shall not permit any third party to, access or use the Services except as expressly authorized by this Agreement and applicable Order Forms. For purposes of clarity and without limiting the generality of the foregoing, except as expressly authorized by this Agreement, Customer shall not:

a. copy, modify, or create derivative works or improvements of the Services beyond internal use;

b. sell, rent, lease, lend, license, sublicense, encumber, assign, distribute, publish, transfer, or otherwise provide access to a third party or for the benefit of any third party;

c. use the Services to provide, or incorporate the Services into, any product or service provided to a third party;

d. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to discover, derive, or gain access to any source code, object code, algorithms, models, underlying structure, ideas, data, or otherwise, in whole or in part;

e. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;

f. unlock, bypass, or circumvent plan limits or restrictions to access Services or features outside of the plan purchased by Customer;

g. input, upload, transmit, or otherwise provide to or through the Services or GrowthBook’s systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malware (as defined below);

h. damage, destroy, disrupt, disable, impair, interfere with, overload, overuse, or otherwise impede or harm in any manner the Services, GrowthBook’s systems, or GrowthBook’s provision of services to any third party, in whole or in part;

i. remove, delete, alter, or obscure any warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or from any software or other materials incorporated by GrowthBook into the Services or otherwise provided or made available to Customer (or Authorized Users) by GrowthBook (collectively, including the Services, "GrowthBook Materials");

j. access or use the Services or GrowthBook Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other GrowthBook customer), or that violates any applicable law;

k. access or use the Services or GrowthBook Materials in, or in association with, the transmission of "Highly Sensitive Personal Information" defined as an (i) individual's government-issued identification number (including Social Security number, driver's license number, or state-issued identification number); (ii) confidential financial information, financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual's financial account; or (iii) biometric, genetic, health, medical, or medical insurance data;

l. access or use the Services or GrowthBook Materials for purposes of competitive analysis of the Services or GrowthBook’s materials, the development, provision, or use of a similar or competing software service or product or any other purpose that is to the GrowthBook's detriment or commercial disadvantage; 

m. conduct any security or vulnerability test of the Service;

n. publicly disseminate benchmarks or performance information about the Services; or

o. otherwise access or use the Services or GrowthBook’s materials beyond the intended scope of the authorization granted.

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3. Effect of Customer Failure or Delay.  GrowthBook shall not be held responsible or liable for any delay, failure, inaccuracy, incompleteness or non-conformance of or related to the Services that arises from or relates to any delay, failure, inaccuracy, incompleteness or non-conformance of Customer. Any such issues arising from the Customer's actions or inactions shall be the sole responsibility of the Customer.  Customer will (a) provide all relevant materials and information (in complete, true, accurate, proper and current form) as and when reasonably requested by GrowthBook, and (b) promptly, timely, fully, properly and accurately respond to any GrowthBook inquiries or reasonable request related to the Services.  
4. Customer’s Plan Limits.  Customer shall not exceed any limitations of Customer’s plan, as specified in an Order Form or through the Software.  Customer shall not enable the use of the Services by more than the number of Authorized Users specified for the plan selected.  Customer’s employees, consultants, contractors, or agents designated as named Authorized Users shall not share their login information (username and password) to the Services with any other party, including without limitation other employees, consultants, contractors, or agents of the Customer. The use of combined or shared logins, such as dev@companyname.com, is expressly prohibited.  
5. Customer Control and Responsibility.  Customer has and will retain sole responsibility for: (a) all Customer Data (as defined below), including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
6. Access and Security.  Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services.  
7. Corrective Action and Notice.  If Customer becomes aware of any actual or threatened unauthorized activity, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify GrowthBook of any such actual or threatened activity. 

3. Term and Termination
   
   1. Term.  This Agreement commences on the day Customer first accepts it and continues until all Services hereunder have ceased to be provided and/or Order Forms hereunder have expired or been terminated.  The term for Services shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, Order Forms will automatically renew for additional one-year periods, unless either Party gives the other notice at least 30 days before the end of the relevant Order Form term.  Any Services received on an annual basis prior to GrowthBook’s Order Form process, or the Services received by Customer for which an Order Form is not in effect, shall auto-renew in the same manner.  GrowthBook may change any pricing or fees for Services provided under an Order Form upon at least sixty (60) days’ prior notice, and such change shall be effective as of the commencement of the subsequent Order Form Term.  GrowthBook may change any pricing or fees for Services effective immediately upon prior notice if the Customer has the ability to terminate for convenience. 
   2. Termination for Cause.  In addition to any other express termination right set forth elsewhere in this Agreement, (a) GrowthBook may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues for more than seven days after GrowthBook's delivery of written notice of such failure and (b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; and (c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.   In no event will termination relieve Customer of its obligation to pay any fees payable to GrowthBook for the period prior to the effective date of termination. Upon expiration or termination of this Agreement, GrowthBook will, at no additional cost to Customer, provide Customer with certain access to Customer Data, provided that such access (y) will be provided in a commercially reasonable manner designated by GrowthBook (as such manner may be updated by GrowthBook from time to time); and (z) is subject to the terms of this Agreement (including Sections 2.2 and 4.1).
   3. Termination for Convenience.  Unless the Parties have entered into an Order Form specifying a term length or Customer has purchased a plan designated as an annual plan requiring upfront payment, either Party may terminate the Agreement at any time by providing 30 days notice to the other Party. If Customer has purchased a plan designated as an annual plan requiring upfront payment, GrowthBook retains the right to terminate for convenience and provide a pro-rata refund to Customer, but Customer may not terminate for convenience during the term of the purchased plan.
4. Confidentiality and Intellectual Property
   
   1. Confidentiality.  "Confidential Information" means confidential or other proprietary information that is disclosed or made available by one Party to the other Party under this Agreement, including without limitation the Services, any hardware and software designs, specifications and documentation, business and product plans, other confidential business information, any non-public personal information ("NPPI"), and the structure, sequence, and organization of GrowthBook's proprietary AI algorithms and models.  Confidential Information excludes information that the receiving Party can demonstrate (a) is or becomes public knowledge without any breach of this Agreement (or any other written agreement between the Parties); (b) is disclosed by the receiving Party with the prior written approval of the disclosing Party; (c) is already known to the receiving Party (from a source other than the disclosing Party) without an obligation of confidentiality; (d) is rightfully received by the receiving Party, without confidentiality restrictions, from a third party; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.  Each Party agrees to observe complete confidentiality with respect to the Confidential Information; not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the Party disclosing such Confidential Information unless compelled by law to do so; and to ensure that any employees or third parties who receive access to the Confidential Information are advised of the confidential nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information without prior authorization; provided that such Confidential Information may be disclosed to the extent required by any applicable law or judicial or governmental order, provided further that the receiving Party gives the disclosing Party (to the extent legally permissible) sufficient prior notice to contest such order.  Without limiting the foregoing, each Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the procedures used by it to protect its own confidential and proprietary information.  The receiving Party shall notify the disclosing Party in writing as soon as reasonably possible, and as not otherwise precluded by law or order, after discovery of any unauthorized use or disclosure of the disclosing Party’s Confidential Information.  Subject to any retention or use reasonably necessary to perform or enforce this Agreement, the receiving Party agrees to return or destroy the disclosing Party’s Confidential Information (including any copies, summaries or excerpts thereof) upon expiration or termination of this Agreement (or the applicable Order Form), and any such destruction shall be certified in writing and provided to the disclosing Party upon reasonable request.  Customer represents, warrants, and covenants that it has not and shall not improperly use, or disclose or make available to GrowthBook or any of GrowthBook’s directors, officers, employees or agents, any confidential information of any current or former client or other person or entity with whom Customer has an agreement or duty to keep such information confidential, except to the extent such use or disclosure is consented to in writing by such client, person or entity.
   2. Customer Data.  As between Customer and GrowthBook, GrowthBook hereby confirms Customer’s ownership of any data, information, access, credentials, instructions, materials or other content provided or made available by or on behalf of Customer to GrowthBook through the Services or otherwise under this Agreement (collectively, "Customer Data").  Customer represents, warrants, and covenants to GrowthBook that (a) the Customer Data shall at all times be current, accurate, true, lawful, lawfully obtained and complete, shall not infringe or violate any third party rights, and shall, as applicable, be updated by Customer as soon as practicable; (b) Customer has provided all notices and obtained all rights, consents and authority necessary to (i) provide to GrowthBook, and for GrowthBook to use as permitted under this Agreement, the Customer Data and (ii) obtain or access any data, materials or other content that Customer requests or orders through or in connection with the Services; and Customer Data does not contain: (i) protected health information or information subject to HIPAA compliance or other relevant law or regulation; (ii) information subject to SOX, GLBA requirements or other relevant law or regulation; (iii) information that falls within the definition of “special categories of data” under data protection laws.  Customer understands that GrowthBook requires access to certain data in order to provide the Services.  However, GrowthBook does not request or require NPPI of the Customer’s end users in order to provide the Services. Any NPPI shared with GrowthBook is done at Customer’s discretion and Customer is responsible for ensuring it: 1) has obtained all necessary consents to share such NPPI; and 2) does not unnecessarily provide GrowthBook with its end users’ NPPI. Customer hereby grants to GrowthBook an unrestricted, non-exclusive right to use Customer Data, including for the purpose of training and improving GrowthBook's artificial intelligence algorithms, in accordance with GrowthBook’s Privacy Notice and this Agreement, as GrowthBook deems necessary for offering, providing, and improving the Services.  However, GrowthBook will not retain, use, or disclose NPPI or any other personal information (as defined by applicable data protection laws) provided by Customer to GrowthBook hereunder for any purpose other than the specific purpose of performing the Services specified in this Agreement.  Customer authorizes GrowthBook to contact Customer for any lawful purpose, including marketing and sales.  Customer is required to request explicit user consent whenever the Customer is using Services to track data on Customer’s users.  Customer is required to add to the Customer’s privacy notice a clear clause that explains the data that is being tracked and the terms of using such data. To the extent that GrowthBook processes any personal data on Customer’s behalf, in the provision of the Services, the terms of the Data Protection Addendum provided to Customer by GrowthBook, which is hereby incorporated by reference, shall apply.   Customer hereby grants to GrowthBook an exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to create, process, reproduce, store, display, modify, translate, create derivative works from, distribute, make available and otherwise use Aggregated Data (as defined below) in connection with developing, providing, maintaining, supporting, or improving GrowthBook’s current and future products and services, including the development and improvement of GrowthBook's AI algorithms, in connection with developing, using, or distributing general analyses or insights, or for any other lawful purpose.  "Aggregated Data" means any data that is based on or derived from any data provided or made available by Customer or an Authorized User through the Services or otherwise under this Agreement, which has been aggregated and de-identified in a manner that does not designate or identify Customer or its Authorized Users as the source of such data and modified so that it cannot be associated with a specific individual.
   3. Intellectual Property.  No intellectual property rights of GrowthBook are transferred pursuant to this Agreement. Customer hereby recognizes that GrowthBook retains all rights, title, and interest in and to the Services, including all related intellectual property rights.  Customer hereby confirms GrowthBook’s ownership of all of the Services and agrees that (a) any and all rights acquired by Customer regarding the Services shall inure to the sole benefit of GrowthBook; and (b) Customer shall not engage in or authorize any act or omission that would violate, contradict, challenge or limit GrowthBook’s intellectual property rights.  Customer has the right to access and use the Services subject to the terms of applicable Order Forms and this Agreement.  GrowthBook reserves all rights not expressly granted to Customer under this Agreement.  
   4. Feedback.  Nothing contained in this Agreement will restrict GrowthBook from using any feedback, skills, knowledge, concepts, methodologies, functionalities, processes, techniques, ideas, proposals, suggestions, or information in intangible form that is gained through the performance of this Agreement or access to Customer’s information or materials (collectively, "Feedback").  All Feedback shall remain the property of GrowthBook.  If Customer provides any Feedback, Customer hereby acknowledges and agrees that such Feedback is not confidential, and that Customer’s provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place GrowthBook under any fiduciary or other obligation.  Customer agrees that GrowthBook does not control and is not responsible for any Feedback or the use or misuse (including any distribution) by any third party of Feedback.  In addition, by providing Feedback, Customer hereby grants to GrowthBook a non-exclusive, perpetual, irrevocable, non-terminable, transferable, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to such Feedback and all intellectual property rights pertaining to Feedback for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and Customer waives all moral and similar rights in connection therewith.  
5. Indemnification; Limitations
   
   1. GrowthBook Indemnification.  GrowthBook shall indemnify, defend, and hold harmless Customer from and against any and all liabilities, damages, costs and expenses (collectively, "Losses") incurred by Customer to the extent resulting from any claim, action, suit, or other legal proceeding ("Action") by a third party (other than an affiliate of Customer) that Customer's or an Authorized User's use of the Services in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights. The foregoing indemnification does not apply to the extent that any alleged infringement or misappropriation arises from:
      
      1. Customer Data;
      2. other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including GrowthBook's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
      3. products or services made, made available, marketed, commercialized, supported or distributed by Customer;
      4. access to or use of GrowthBook in combination with any hardware, system, software, network, or other materials or service not provided by GrowthBook;
      5. modification of the Services not made by GrowthBook;
      6. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of GrowthBook; or
      7. any act or omission by or on behalf of Customer not in compliance with this Agreement.
   2. Customer Indemnification.  Customer shall indemnify, defend, and hold harmless GrowthBook and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "GrowthBook Indemnitee") from and against any and all Losses incurred by such GrowthBook Indemnitee to the extent resulting from any Action by a third party (other than an affiliate of a GrowthBook Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: 
      
      1. Customer Data, including any access, use, collection, generation, handling, processing, copying, storage, hosting, transmission, disclosure, transfer, disposal or destruction of Customer Data by or on behalf of GrowthBook as permitted under this Agreement;
      2. other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including GrowthBook's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
      3. products or services made, made available, marketed, commercialized, supported or distributed by Customer;
      4. allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
      5. negligence, gross negligence, or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
   3. Procedure.  Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Agreement, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that imposes any liability or obligation on any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed.
   4. Mitigation.  If any of the Services or GrowthBook Materials are, or in GrowthBook's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer's or any Authorized User's use of the Services is enjoined or threatened to be enjoined, GrowthBook may, at its option and expense: 
      
      1. obtain the right for Customer to continue to use the Services and GrowthBook Materials materially as contemplated by this Agreement; 
      2. modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under this Agreement; or
      3. in the event that GrowthBook cannot secure either of the foregoing options using reasonable efforts, then GrowthBook may terminate this Agreement and any licenses granted hereunder, and GrowthBook shall provide a pro-rata refund to Customer for any pre-paid but unused fees at the time of such termination. 
   5. Warranty Disclaimer.  TO THE FULLEST EXTENT PERMITTED BY LAW, GROWTHBOOK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, CONCERNING THE SERVICES OR ANY OTHER GROWTHBOOK PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  GROWTHBOOK DOES NOT PROVIDE LEGAL ADVICE, MAKES NO GUARANTEES REGARDING RESULTS, AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, THAT ANY SERVICES WILL BE ERROR FREE OR THAT ANY PARTICULAR ERROR OR INACCURACY WILL BE CORRECTED. FURTHER, GROWTHBOOK DOES NOT GUARANTEE THAT THE AI COMPONENTS OF THE SERVICES WILL ALWAYS FUNCTION AS INTENDED OR THAT THEY WILL NOT MAKE ERRONEOUS DECISIONS OR RECOMMENDATIONS. GROWTHBOOK’S PERFORMANCE OF THE SERVICES SHALL AT ALL TIMES BE CONDITIONED UPON CUSTOMER’S PROPER AND TIMELY (A) PROVISION OF CURRENT, ACCURATE, TRUE, LAWFUL, LAWFULLY OBTAINED AND COMPLETE CUSTOMER DATA; AND (B) PERFORMANCE OF ITS OBLIGATIONS HEREUNDER
   6. LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES WILL GROWTHBOOK, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) LOSS OF PRODUCTION, USE, DATA, BUSINESS, OPPORTUNITY, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (C) COST OF REPLACEMENT OR SUBSTITUTE GOODS OR SERVUCES; (D) LOSS OF GOODWILL OR REPUTATION; OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF GROWTHBOOK, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING ANY AND ALL INDEMNIFICATION OBLIGATIONS, EXCEED EITHER (A) THE TOTAL AMOUNTS PAID BY CUSTOMER TO GROWTHBOOK UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) $100,000.00, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 
   7. Third Party Providers.  GrowthBook may use certain third-party providers to gather Customer-related data and other information from, and transmit such information to, financial institutions for accounting purposes or other purposes related to the Services.  Customer hereby appoints such third-party providers as Customer’s authorized agents to access and transmit such information for such purposes and to perform such services.  Customer will be responsible for providing reasonably requested (or customary) pertinent information to or for such third-party providers, and taking reasonably requested (or customary) actions, in connection with such services.  GrowthBook shall not be liable or responsible for any acts or omissions of any third-party provider, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto.  Customer understands and acknowledges that certain Services may utilize integrations.  Customer represents, warrants, and covenants that Customer has all third party rights to install and use the Services in combination with the services of any third parties.
   8. Sole Remedy.  THIS SECTION SETS FORTH CUSTOMER'S SOLE REMEDIES AND GROWTHBOOK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 

6. Miscellaneous
   
   1. Representations and Warranties.  Each Party represents and warrants to the other the following: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and shall not violate any law; and this Agreement is a valid obligation of such Party, enforceable against such Party in accordance with its terms; (b) it is in compliance with all laws applicable to its performance under this Agreement; (c) it will perform its respective obligations set forth in this Agreement in a professional manner; and (d) neither the execution and delivery of this Agreement, nor the performance of any obligations under this Agreement shall conflict with or result in a default under any of the terms or conditions of any agreement or obligation to which such Party is bound.  
   2. Independent Contractors.  The Parties are independent contractors. Neither Party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other Party.  This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
   3. Publicity.  GrowthBook may use Customer’s name and logo in marketing.  Public announcements beyond referencing Customer as a customer of GrowthBook shall be subject to Customer’s approval, not to be unreasonably withheld.
   4. Notices.  All notices to GrowthBook shall be in writing and delivered by hand or by certified mail or overnight delivery service to GrowthBook; Attn: Legal Department; 1950 W Corporate Way #34560; Anaheim, CA 92801 in addition to sending a copy to legal@growthbook.iowith “Attn: Legal Department” as the subject line.  All notices to Customer shall be sent by email to the email address associated with Customer’s account or will be posted to the Software. Notices shall be effective when delivered in accordance with the foregoing.
   5. Force Majeure.  Neither Party shall be liable to the other for failure or delay in performance under this Agreement if such failure or delay is caused by riot, flood, earthquake, natural disaster, electronic virus, electronic attack of infiltration, internet disturbance, government act or any other cause beyond such Party’s control, provided that the affected Party gives prompt notice of such condition and uses reasonable efforts to resume performance as soon as practicable.
   6. Assignment.  Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that GrowthBook may assign (a) any rights or obligations hereunder to an affiliate; or (b) this Agreement in its entirety in connection with a merger, acquisition or similar transaction.
   7. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of California, excluding its conflict of laws provisions.
   8. Dispute Resolution.  In the event of any controversy or claim arising out of or in connection with this Agreement, or a breach thereof, the Parties agree to use the following procedure.  Except as otherwise set forth in this Agreement, the Parties shall first attempt to settle the dispute by good faith discussion.  If the Parties do not achieve resolution within a period of 30 days, the dispute shall be mediated by a mutually agreed upon mediator within a reasonable timeframe considering the nature of the dispute. If a mediated settlement is not reached within a period of 30 days after the commencement of mediation, either Party may proceed to seek recourse through litigation.  The Parties consent and submit to the exclusive jurisdiction and venue over any Action that may arise out of or in connection with this Agreement in the courts located in Santa Clara County, California, provided that either Party may, without limiting any of its rights or remedies (whether under this Agreement, at law, in equity or otherwise), seek injunctive relief and other equitable remedies at any time in any court of competent jurisdiction for any actual or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations.  Each Party acknowledges that its breach of any of the provisions related to its confidentiality obligations or the other Party’s intellectual property rights may cause irreparable injury to the other Party for which monetary damages are not an adequate remedy.
   9. Trade Compliance.  Customer agrees and understands that the Services are subject to U.S. export controls and sanctions laws and regulations, and the export controls and sanctions laws of any other applicable jurisdiction. Customer agrees and acknowledges that Customer will not access, register for, or otherwise use the Services in a country or region subject to U.S. comprehensive trade sanctions (including Cuba, Iran, North Korea, Syria, and the Crimea region, the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) of Ukraine) (“Embargoed Countries”), nor will Customer use the Services in any manner prohibited by U.S. export controls or sanctions laws and regulations.  Customer represents that it is not (i) a resident or national of any Embargoed Countries, or an entity organized under the laws of any Embargoed Countries; (ii) designated on any list of prohibited or restricted parties maintained by the U.S. Government or other applicable jurisdictions, including but not limited to the Office of Foreign Assets Control’s (OFAC) Specially Designated Nationals and Blocked Persons List; other OFAC Lists or Directives; the Entity, Denied Persons, Military End User, and Unverified Lists maintained by the U.S. Department of Commerce; and the UN Security Council Consolidated List; or (iii) 50% or more owned by any party designated on any of the above lists.  Customer agrees and understands that GrowthBook may terminate Services and this Agreement immediately without notice or liability to comply with applicable export controls and sanctions laws and regulations, in its sole and absolute discretion.
   10. U.S. Government End Users.  The Services are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, the Commercial Computer Software is being licensed to U.S. Government end users (a) only as Commercial Items, (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, and (c) such end users will agree not to disclose, distribute, or transfer any part of the Software to any third party. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. 
   11. Minors.  Services are intended only for access and use by individuals at least eighteen (18) years old.  Minors are prohibited from using or accessing the Services.
   12. Entire Agreement.  This Agreement, including any applicable Order Form and any document attached hereto and incorporated by reference to this Agreement or an Order Form, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.  For the avoidance of doubt, (a) this Agreement shall replace any prior version of this Agreement, whether titled “GrowthBook Master Service Agreement,” “Terms of Service Agreement” or otherwise, and (b) any Services previously purchased under an Order Form, Statement of Work, or under any addendum or amendment to a prior version of this Agreement shall remain in full force and effect and will be governed by the terms of this Agreement.  In the event of any conflict between the terms and provisions of this Agreement and those of any Order Form or exhibit, the following order of precedence shall govern: (a) first, the applicable Order Form; (b) second, the exhibit to the applicable Order Form; (c) third, this Agreement, exclusive of its exhibits; and (d) lastly, any exhibits to this Agreement.  In the event that there is more than one Order Form between the Parties for the same Services, the more recent Order Form will serve to replace and terminate the prior Order Form for such Services.
   13. Amendment.  From time to time, in GrowthBook’s sole discretion, GrowthBook may amend the terms and conditions of this Agreement (other than the terms expressly set forth in an Order Form). Such changes will become effective upon notice to Customer but will not apply retroactively.  By continuing to receive, use or access the Services, Customer agrees to be bound by the amended terms of this Agreement.  No other change of any of the provisions hereof shall be effective unless and until set forth in writing and duly signed by an officer of GrowthBook and by Customer.
   14. Severability.  This Agreement is severable, and if any provision of this Agreement is, for any reason, finally determined to be invalid, illegal or unenforceable, such provision shall be modified to the extent necessary to make it valid, legal and enforceable, and such modification shall be done in a manner that most closely approximates the original intent of GrowthBook, and such invalidity, illegality, or unenforceability shall not affect any of the remaining provisions of this Agreement.
   15. Waiver.  The failure to insist upon strict compliance with any of the provisions of this Agreement shall not be deemed a waiver of any such provision, nor shall any waiver or relinquishment of any right or power hereunder, at any one or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.
   16. Survival.  Subject to the terms of this Agreement: (a) the confidentiality and indemnification obligations of the Parties contained herein will survive the expiration or earlier termination of this Agreement; and (b) any provision that, in order to give proper effect to its intent or express terms, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.
   17. Counterparts:  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile, scanned copy, or other electronic transmission shall be effective as delivery of a manually executed counterpart.

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