Terms of Services
Last updated: March 07, 2020
1. Binding Agreement
This is a binding legal agreement (the "Agreement") between you or the entity you represent ("You" and "Your") on the one hand and Growbase Ltd (the "Company") on the other hand. The Agreement contains the terms and conditions that govern Your access to and use of the Company Website and the Company’s Services (as defined below). This Agreement takes effect when You click on the "I Accept" button or check box presented with this Agreement ("Effective Date"). You represent that You are lawfully able to enter into this binding contract, and that if you are a natural person, you are 18 years or older.
"Account" means a user account created through the Company Website.
"Claim(s)" means any dispute between the Parties and/or their parents, subsidiaries, affiliates companies, employees, agents, officers directors, shareholders, and licensors arising out of, related to, or in connection with this Agreement, the Company Website, the Services, or the Suppression Lists.
"Company Website" means the website located at weopt.com and any associated applications and APIs.
"Notice" means, when provided by You to the Company, an email communication sent by You to firstname.lastname@example.org. "Notice" means, when provided by the Company to You, an email communication sent by the Company to the email address associated with Your Account on the date the email is sent, if You have an Account; otherwise, "Notice" means publication on the Company Website in a readily accessible location. Notice is deemed made the day the email is sent or the date the Notice is published on the Company Website.
"Parties" means You and the Company.
"Party" means You or the Company.
"Service(s)" means the services available to You through the Company Website, including any data obtained by You through the Services. "Service(s)" includes, but is not limited to, a) the ability of users of the Company Website to upload contact information for third-parties who have indicated that they do not wish to receive marketing materials from or regarding certain entities, products, or services; and b) the ability of users of the Company Website to download or otherwise access a list of third parties who have indicated that they do not wish to receive marketing materials from or regarding certain entities, products, or services.
"Service Fees" means the fees charged by the Company to You for providing the Services.
"Suppression Lists" means the data provided to You by the Services comprising a list of third parties who have indicated that they do not wish to receive marketing materials from or regarding certain entities, products, or services.
"Your Content" means content that You or Your affiliates communicate to consumers for the purpose of advertising or selling goods or services.
"Your Uploaded Data" means data that You have uploaded through the Company Website for the purpose of starting or supplementing the Services and the Suppression Lists.
"Your Website(s)" means any and all websites to which any communication containing Your Content contains a hyperlink.
3. The Services
The Company agrees to provide the Services to You subject to the terms and conditions set forth in this Agreement.
5. Term and Termination
Term: The term of this Agreement will begin on the Effective Date and will continue until the Agreement is terminated under this Section.
Termination for Convenience: You may terminate the Agreement for any reason by closing Your Account. Such a termination will take effect immediately. The Company may terminate the Agreement for any reason by providing You with at least 30 days’ advance Notice.
Termination for Cause: Either Party may terminate the Agreement immediately if the other Party has materially breached the Agreement. A material breach includes but is not limited to a violation of Your Representations or Warranties set forth in Section 7. Such termination will become effective immediately upon providing Notice to the breaching Party.
Effect of Termination:
Upon termination of the Agreement, You remain responsible for paying all Service Fees that You have incurred through the termination date.
Upon termination of the Agreement, all of Your rights under the Agreement will immediately end, except as expressly provided in the Agreement.
Upon termination of the Agreement, the following Sections of the Agreement will survive and continue to apply:
Sections 2, 4, 5.4, 7, 9, 11-14, 16.
6. Account Required
To access certain aspects of the Services, You must have an Account associated with a valid email address and a valid form of payment. You represent and warrant that all information You associate with Your Account is valid and accurate. You agree to immediately update Your Account if Your contact or payment information changes. You will not sell, transfer, allow access to, or sublicense Your Account credentials to any other entity or person except to Your agents for the purpose of performing work on Your behalf. You agree to notify the Company immediately of any unauthorized use of Your Account or any breach of Your Account credentials.
7. Your Representations and Warranties
Only Lawful Use: You may only access and use the Company Website, the Services, and the Suppression Lists in accordance with this Agreement. You will not use the Company Website, the Services, or the Suppression Lists in any manner or for any purpose other than as expressly permitted by this Agreement. You will not use the Company Website, the Services, or the Suppression Lists to commit or promote any type of illegal activity. In using the Company Website, the Services, and the Suppression Lists, You agree to comply with all applicable laws, rules, and regulations.
No Reverse Engineering or Modifications: You will not attempt to modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any content that forms part or all of the Company Website or the Services. You will not attempt to reverse engineer, disassemble, or decompile the Company Website or the Services or apply any other process or procedure to derive the source code of any software employed by the Company Website or the Services. You will not use the Company Website or the Services in a manner that could disable, overburden, damage, or impair the Company Website or the Services. You will not use any robot, spider, or automatic device to access the Company Website or the Services for any reason. You will not introduce any virus or other malware to the Company Website or its servers. You will not attempt to gain unauthorized access to any aspect of Company Website or the Services that You are not authorized to access.
No Avoidance of Service Fees: You will not attempt to access or use the Services or the Suppression Lists in a way intended to avoid incurring Service Fees.
No Sublicensing: You will not attempt to resell or sublicense the Services or the Suppression Lists. You may not publish, distribute, or broadcast the Services or the Suppression Lists outside of Your organization, except where expressly permitted by a separate written agreement signed by the Company.
No Marketing: You will not use the Services or the Suppression Lists to generate contact information to market any goods or services to any consumer.
No Contact with Suppression List Parties: You will not contact any person listed on the Suppression Lists for the purpose of marketing any goods or services.
No Misrepresentations: You will not misrepresent or embellish the relationship between You and the Company, including by expressing or implying that the Company supports, sponsors, endorses, or contributes to You or Your business endeavors.
No Use for Illegal Activity: You will not use the Company Website, the Services, or the Suppression Lists to sell or traffic in illegal drugs, gambling, pornography, or obscene materials or to engage in any other unlawful activity.
Your Content and Your Websites: You represent and warrant that Your Content and Your Websites are legal and do not violate any intellectual property laws or any third party’s intellectual property rights. You recognize and agree that the Company cannot and will not systematically review Your Content or Your Websites. You further recognize and agree that You are solely responsible for the development, operation, maintenance, quality, performance, and all other aspects of Your Content and Your Websites and all goods or services marketed or sold in connection with Your Content and Your Websites, including the accuracy of any representations in Your Content and Your Websites. You represent and warrant that You have used Your best efforts to ensure that Your Content and Your Websites are free of all malware and malicious code. You represent and warrant that Your Content and Your Websites do not violate any law and do not contain materials that are defamatory, obscene, vulgar, profane, harassing, threatening, or that promote gambling, illegal drugs, or other unlawful activity.
Email and Telemarketing Practices: You represent and warrant that Your business practices and the business practices of Your affiliates comply with all applicable email marketing and telemarketing laws and regulations, including but not limited to the U.S. CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA"), and the Telemarketing Sales Rule ("TSR"). You are responsible for placing all required opt-out notices and links to opt-out mechanisms in Your Content and in any communication containing Your Content. You agree that if You receive any request to cease marketing to a specific person, you will promptly forward that request to the Company.
Privacy Practices: You represent and warrant that your business practices, Your Website, and Your Content, and the business practices of Your affiliates, comply with all applicable privacy laws and regulations, including but not limited to the EU General Data Protection Regulation ("GDPR") and the California Consumer Privacy Act ("CCPA"). You are responsible for placing all required privacy notices and links to privacy policies on Your Website, in Your Content, and in any communications containing Your Content. You agree that if You receive any request to access, change, delete, or otherwise alter the processing of personal information that You provided to or obtained from the Company, you will promptly forward that request to the Company.
8. Changes to the Services
Changes to the Services: The Company may change the Services from time to time without any Notice to You. The Company will provide You with at least 30 days’ prior Notice if it discontinues material functionality of any of the Services.
9. Billing and Payment
Service Fees: You agree to pay the Company the applicable Services Fees as identified to You on the Company Website and through any Notice sent to You after the Effective Date. The Company may increase Service Fees or impose additional Service Fees for new services by providing You with 30 days’ Notice. You agree to pay all amounts due under the Agreement within 30 days of the Company’s issuance of an invoice to You without setoff or counterclaim, and without any deduction or withholding. You agree to pay interest on Service Fees in the amount of 1.5% (or the highest rate permitted by law if less) on all late payments to the Company.
RECURRENT CREDIT CARD CHARGES: YOU ACKNOWLEDGE, AGREE, AND AUTHORIZE the Company TO AUTOMATICALLY BILL AND/OR CHARGE YOUR CREDIT CARD FOR THE SERVICE FEES ON A MONTHLY BASIS UNTIL THE AGREEMENT IS TERMINATED. YOU FURTHER ACKNOWLEDGE, AGREE, AND AUTHORIZE THE COMPANY TO CHARGE YOUR CREDIT CARD WITHIN 30 DAYS’ OF TERMINATION OF THE AGREEMENT FOR ALL OUTSTANDING SERVICE FEES OWED BY YOU.
Taxes: The Service Fees do not include any applicable sales, use, revenue, excise, or other taxes imposed by any taxing authority with respect to the Services. Such taxes may be added to the Company’s invoices as separate charges to be paid by You (when and where applicable). You are solely responsible for any taxes incurred by You from Your use of the Company Website or Services.
10. Security and Data Privacy
Security and Data Privacy: You are responsible for properly securing your Account credentials.
11. Proprietary Rights
Your Content: You represent and warrant that You are the owner or valid licensee of Your Content and each element thereof, and that You have secured all necessary licenses, consents, permissions, waivers, and releases to use Your Content, including without limitation, all trademarks, logos, and names and likenesses contained therein, without any obligation by the Company to pay any compensation of any kind to any third party. You represent and warrant that Your Content and Your use of Your Content do not violate the intellectual property rights of any third party. You grant the Company a worldwide, perpetual, irrevocable, royalty-free license, with the right to sublicense, to reproduce, copy, use, store, publish, and distribute all and any portion of Your Content to the extent needed to provide the Services. Except as described in this Agreement, the Company is not acquiring any right, title, or interest in Your Content.
Your Uploaded Data: You represent and warrant that You have secured all necessary licenses, consents, permissions, waivers, and releases for You to provide Your Uploaded Data to the Company, without any obligation by the Company to pay any compensation of any kind to any third party. You represent and warrant that Your provision of the Uploaded Data to the Company does not violate any personal or privacy rights of any third party. You grant the Company a worldwide, perpetual, irrevocable, royalty-free license, with the right to sublicense, to reproduce, copy, use, store, publish, and distribute all and any portion of Your Uploaded Data to the extent needed to provide the Services. Except as described in this Agreement, the Company is not acquiring any right, title, or interest in Your Uploaded Data.
Rights in the Services and the Company Website: The Company or its licensors owns all right, title, and interest in and to the Company Website, the Services, and the Suppression Lists, and all related technology and intellectual property rights, including all copyrights and trademarks. Subject to the terms of this Agreement, the Company grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable license access and use the Company Website, the Services, and the Suppression lists solely in accordance with the Agreement. Except as expressly provided in this Agreement, You do not obtain any rights under the Agreement from the Company, its affiliates, or licensors to the Company Website, the Services, or the Suppression Lists, including any related intellectual property rights.
12. Disclaimers of Warranties and Limitations of Liability
DISCLAIMERS OF WARRANTIES: TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY AND ALL OF THE COMPANY’S PARENT, SUBSIDIARY, OR AFFILIATED ENTITIES (IF ANY), AND ALL OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDER, AFFILIATES, AGENTS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY WORKMANLIKE EFFORT, INFORMATIONAL CONTENT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. ALL SERVICES, SUPPRESSION LISTS, AND ALL CONTENT ON THE COMPANY WEBSITE ARE PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE SERVICES, THE SUPPRESSION LISTS, OR THE OPERATION OF THE COMPANY WEBSITE OR THE INFORMATION, CONTENT OR MATERIALS PROVIDED THROUGH THE SERVICES, THE SUPPRESSION LISTS, OR THE COMPANY WEBSITE. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SERVICES, THE SUPPRESSION LISTS, OR THE COMPANY WEBSITE WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, THE SUPPRESSION LISTS, OR THE COMPANY WEBSITE WILL BE FREE OF VIRUSES AND/OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY ASPECT OF THE SERVICES, THE SUPPRESSION LISTS, OR ANY MATERIAL ON THE COMPANY WEBSITE OR MADE AVAILABLE THROUGH THE SERVICES. THE COMPANY IS NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, OR ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE. THE COMPANY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO YOUR FAILURE TO KEEP YOUR ACCOUNT CREDENTIALS SECURE.
EXCEPTION TO DISCLAIMERS OF WARRANTIES: SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS OF WARRANTY, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY: IN NO EVENT WILL THE COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, THE SUPPRESSION LISTS, OR THE COMPANY WEBSITE, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID BY YOU TO THE COMPANY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, THE SUPPRESSION LISTS, OR THE COMPANY WEBSITE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES. THE LIMITATIONS IN THIS SECTION APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), OTHER THAN CLAIMS BASED ON FRAUD OR WILLFUL MISCONDUCT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT APPLY TO YOUR INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
EXCEPTION TO LIMITATION OF LIABILITY: SOME JURISDICTIONS MAY NOT ALLOW LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification: You will defend, indemnify, and hold harmless the Company and its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, attorney’s fees, and expenses arising out of or relating to any third-party claim concerning: (a) Your use of the Company Website, the Services, or the Suppression Lists; (b) Your breach of this Agreement, (c) any dispute with a third party regarding Your Websites, Your Content, or any communication containing Your Content, and (d) any claim by a third party that Your Content infringes or misappropriates any intellectual property rights ("Indemnified Claim"). In the event that the Company seeks indemnity under this Section, the Company will give You prompt written Notice of the Indemnified Claim and reasonably cooperate with You (at Your expense) in the defense and settlement of the Indemnified Claim. In no event will You agree to any settlement of any Indemnified Claim that involves any commitment, other than the payment of money, without the written consent of the Company.
14. Arbitration Agreement
International Arbitration Before DFIC-LCIA: The Parties agree that, except as expressly provided in this Agreement, any and all Claims, including any question regarding the existence, validity, or termination of the Agreement and this arbitration agreement, will be resolved exclusively and finally by binding arbitration in accordance with this arbitration agreement rather than in court. Any Claim shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC–LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause. There will be one arbitrator, and the seat, or legal place, of the arbitration shall be the Dubai International Financial Centre, Dubai, 3030, Limassol, Cyprus. The language to be used in the arbitration shall be English. The governing law of the contract shall be the substantive law of the State of California in the United States. Whichever Party initiates the arbitration shall pay all arbitration filing fees and arbitrator’s costs and expenses; thereafter, each Party shall be responsible for their respective fees, costs, and expenses incurred in the arbitration, as determined by the arbitrator, including, but not limited to, their own attorney’s fees and expert fees. Fees and costs may only be awarded by the arbitrator when allowed by applicable law. The arbitrator shall decide all issues related to the Claims, including the scope of this arbitration agreement.
Waiver of Right to Bring Claims in Court: Except as otherwise expressly provided in this Agreement, by entering the Agreement, the Parties waive their right to litigate Claims in court and the opportunity to be heard by a judge or jury.
Class Action Waiver: Any arbitration under this Agreement shall be commenced as an individual arbitration and shall in no event be commenced or proceed as a representative or class arbitration. The Parties agree that the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claim. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual Claim(s).
Arbitration Award: In any arbitration under this Agreement, the arbitrator shall not have the power to award relief to, against, or for the benefit of any person who is not a party to the arbitration proceeding. An award by the arbitrator will be final and binding on the Parties, except for any right of appeal provided by the U.S. Federal Arbitration Act, and the award may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Severability: if any clause within this Section 13 (other than the Class Action Waiver) is found to be illegal or unenforceable, that clause will be severed from this arbitration agreement, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver is found to be illegal or unenforceable, then the entire arbitration agreement will be unenforceable and all Claims will be decided by a court of competent jurisdiction.
Continuation: This arbitration agreement shall survive the termination of the Agreement.
15. Changes to the Agreement
Changes to the Agreement: The Company may modify this Agreement at any time by providing 30 days’ advance Notice. By continuing to use the Website or Services after the effective date of any change to this Agreement, you agree to be bound by the modified terms.
Language: All communications and Notices made or given pursuant to this Agreement must be in the English language.
Independent Contractors: It is expressly agreed that the Parties shall be independent contractors, and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action that will be binding on the other Party, without the prior written consent of the other Party.
No Third-Party Beneficiaries: Except as expressly set forth in this Agreement, no third-party beneficiary rights are created in any individual or entity that is not a party to the Agreement.
No Waivers: The failure by the Company to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit the Company’s right to enforce such a provision at a later time. All waivers by us must be in writing to be effective.
Assignments and Successors: You may not assign or transfer this Agreement or any of its rights or obligations without the prior written consent of the Company. Any attempted assignment in violation of this Section shall be null and void an of no force or effect whatsoever. The Company may assign its rights and obligations under this Agreement and may engage subcontractors or agents in performing its duties and exercising its rights under this Agreement, without Your consent. The Agreement will be binding on and will inure to the benefit of the Parties’ successors and permitted assigns.
Governing Law: Except to the extent applicable law, if any, provides otherwise, this Agreement will be governed by the laws of the state of California in the United States, excluding conflict of law provisions.
Entire Agreement: This Agreement is the entire agreement between You and the Company regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between You and the Company, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede other written marketing agreements and insertions orders). The Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement).
Severability: Except as expressly provided otherwise, if any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
Headings: The headings herein are for convenience only and are not part of the Agreement.
Counterparts: This Agreement may be signed electronically and in counterparts. If You sign the Agreement electronically, the Company’s records of Your execution shall be presumed accurate unless proved otherwise.
Force Majeure: The Company will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond the Company’s reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Government Regulations: You may not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations, which may be imposed by the U.S. government any country or organization of nations within whose jurisdiction You operate or do business.