Ardent Growth Terms of Service

Last modified: 01/01/2024

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

Our Customer Terms of Service is a contract that governs our customers' use of Ardent Growth services.

Your Order Form is the Ardent Growth-approved form created following your purchase of one of our products or services through our online payment process. It contains all of the details about your purchase, including your subscription term, products and services purchased and your fees. A copy of your Order Form(s) will be sent to you upon payment via your registered email.

We’ve aimed to keep these documents as readable as possible, but in some cases for legal reasons, some of the language is necessarily “legalese”. By using any of our Subscription Services or receiving the Consulting Services, you are agreeing to these terms.

We update these terms from time to time without notice. If you need archived versions of our terms of service, contact legal@ardentgrowth.com.

General Terms

DEFINITIONS

“Add-Ons” means additional product enhancements (including Limit increases and other add-ons) that are made available for purchase.

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Agreement" or “Customer Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated.

"Authorized Payment Method" means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.

"Billing Period" means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Current Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Current Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

“Confidential Information” means all confidential information disclosed by a party and its Affiliates ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services. Consulting Services are a subset of our Subscription Services.

"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Content produced by Ardent Growth unless explicitly indicated on your Order or Statement of Work as "Work for Hire" or "WFH".

"Customer Materials" means all materials that you provide to use through the use of the Subscription Service.

“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.

“Jurisdiction-Specific Terms” means the additional terms that apply to your subscription, depending on your location.

"Order" or "Order Form" means the Ardent Growth-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. This includes signed Statements of Work, Quotes, Invoices, and other Purchase Agreements made between Ardent growth and your Company.

“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.

"Privacy Policy" means the Ardent Growth's Privacy Policy available at https://ardentgrowth.com/legal/privacy-policy, as updated by us from time to time.

“Product Specific Terms" means the additional product-related terms that apply to your use of Ardent Growth products, our Consulting Services and Third-Party Products. These terms form part of this Agreement..

"Sensitive Information" means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.

"Subscription Fee" means the amount you pay for the Subscription Service.

"Subscription Service" means all of our web-based applications, tools, platforms, and Consulting Services that you have subscribed to or purchased under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us and provided to you.

"Subscription Term" means, collectively, the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s) (the "Initial Term"); and each subsequent renewal period (if any) (each a "Renewal Term"). Your "Current Term" is your then-current committed period of Subscription Services, as either an Initial Term or Renewal Term. For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.

"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.

"Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications Services.

“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your Current Term(s), but this amount excludes fees for renewals, Consulting Services and applicable taxes.

"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

"Ardent Growth", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.

"You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.

USE OF SERVICES

2.1  Access. During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them. We might provide some or all elements of the Subscription Service through third party service providers.

You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate's Users or allow them to receive the Consulting Services purchased under an Order; provided that, all such access, use and receipt by your Affiliate's Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates' compliance with the Agreement.

2.2. Scope of Services. Ardent Growth shall provide Consulting Services as described and purchased on your Order Form. Any feature or service not explicitly referenced in your Order Form is not included in the scope of that purchase.

2.3  Additional Services or Features. You may subscribe to additional features of the Subscription Service by contacting your sales representative or placing an additional Order directly through our purchase portal. This Agreement will apply to all additional Order(s) and all additional features that you purchase or utilize from Ardent Growth.

2.4 Downgrades. Depending on your subscription, you may be entitled to downgrade your subscription. This is not available for services under contract.

2.5 Customer Responsibilities. Customer is responsible for the timely delivery of items requested by Ardent Growth required for the execution of the Subscription or Service. Timely delivery is defined as less than (5) business days unless otherwise specified in these Terms of Service. Failure to adhere to these Customer Responsibilities by the Customer constitutes a breach of agreement and forfeits any rights to warranties or guarantees.

FEES

3.1 Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments (e.g., Stripe), and consent to the disclosure of your payment information to such third party.

In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the 'Suspension' section or terminate your account in accordance with the 'Termination for Cause' section if we remain unable to successfully charge a valid Authorized Payment Method.

3.2 Payment Against Invoice. All amounts invoiced are due and payable within five (5) days from the date of the invoice, unless otherwise specified in the Order Form. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the fees are payable during the Subscription Term, for example, in advance of the beginning of the next Renewal Term and each subsequent Billing Period.

3.3 Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information.

Changes may be made by contacting accounting@ardentgrowth.com. You authorize Ardent Growth to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement or as specifically provided for on your Order Form(s). All fees are due and payable in advance throughout the Subscription Term.

3.4  Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state.  If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.  If you are located in Canada, all fees are exclusive of GST, PST and HST.

3.5  Withholding Tax.  If you are required to deduct or withhold tax from payment of your Ardent Growth invoice, you may deduct this amount from the applicable Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).  

You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.

TERM AND TERMINATION

4.1  Term and Renewal. Your Initial Term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the same duration as your prior term or one year.

4.2  Notice of Non-Renewal.  Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending this notice is thirty (30) days unless otherwise specified in your Order.

If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by emailing accounting@ardentgrowth.com. Sending a non-renewal notice to any other email address other than accounting@ardentgrowth.com is not recognized as a valid.

4.3  Early Cancellation.  You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of your Current Term. See the 'Notice of Non-Renewal' section for information on how to cancel your subscription. This applies to all Products and Services provided by Ardent Growth.

4.4  Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

This Agreement may not otherwise be terminated prior to the end of your Current Term.

4.5  Suspension

4.5.1  Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for the use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

4.5.2  Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee of $500 to reinstate the Subscription Service.

4.5.3 Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

4.6 Effect of Termination or Expiration.   If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause.

You will continue to be subject to this Agreement for as long as you have access to a Ardent Growth Products and Services.

Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Ardent Growth Content not covered as Work for Hire. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

CUSTOMER DATA

5.1  Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.

5.2 Data Practices and Machine Learning. We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement. We may use Customer Data for machine learning to support and develop features and functionality within the Subscription Service and similar products and services. You instruct us to use Customer Data for such purposes. You may opt-out of having your Customer Data used for machine learning by emailing legal@ardentgrowth.com.

5.3.3 Privacy Policy. For more information on these practices, please see our Privacy Policy.

5.4. Retention, Deletion and Retrieval of Customer Data. We will retain your Customer Data in total for no more than 30 days upon termination of the Subscription Service and may not capable of recovering your data after that period. You are responsible for downloading and storing your data as you see fit upon termination.

INTELLECTUAL PROPERTY

6.1  This is an agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Ardent Growth Content, the Subscription Service, the Consulting Services, and any other products or services provided under this Agreement unless expressly indicated as Work for Hire ("WFH") in an Order. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Ardent Growth Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.

You may not use any of our trademarks without our prior written permission.

CONFIDENTIALITY

7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information..

PUBLICITY

You grant us the indefinite right to add your name and company logo to our customer list and website and may publish a brief description highlighting your use of our Services, identify you as a customer of Ardent Growth on any of Ardent Growth's websites, client or customer lists, press releases, or other marketing materials.

INDEMNIFICATION

Each Party (an “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its and their respective representatives, officers, directors, employees, agents, affiliates, successors and assigns (collectively, the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), to the extent arising out of or resulting from any claim of a third party alleging:

(a) any grossly negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;

(b) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or Indemnifying Party’s personnel;

(c) any infringement of the Intellectual Property Rights of any third-party by the Indemnifying Party;

(d) any violation of Third-Party Licenses, or

(e) any failure by Indemnifying Party or its personnel to comply with applicable laws, as the interpretation of which are reasonably understood by such Party, acting in good faith.

DISCLAIMERS; LIMITATION OF LIABILITY

10.1 Performance Warranty. We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service or your Systems; provided however, this warranty will not apply to you if you only use the Free Services.

In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.

10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, ARDENT GROWTH CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, ARDENT GROWTH CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.

10.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.

10.5 Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

MISCELLANEOUS

11.1 Amendment; No Waiver. We may modify any part or all of the Agreement by posting a revised version at https://ardentgrowth.com/legal/terms. The revised version will become effective and binding the next business day after it is posted. If you would like to receive an email notification when we update the Agreement, please opt-in by emailing legal@ardentgrowth.com with a formal request.

If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://ardentgrowth.com/legal/terms will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: 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; pandemic; 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.

11.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us unless explicitly agreed upon in a separate, legally binding contract.

11.5 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.

You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services.

You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.

11.6 Severability. If any part of this Agreement or an Order Form 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 this Agreement will continue in effect.

11.7 Notices to Ardent Growth: Notice will be sent to the contact address set forth in this Terms of Service, and will be deemed delivered as of the date of actual receipt.

Notices to You: your address as provided in our Ardent Growth account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

11.8 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service nor any future performance of Consulting Services. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

11.9 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Ardent GrowthAffiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

11.10 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

11.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.

11.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.

11.13 Insurance. During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers' Compensation & Employers Liability Insurance (as required by the state), with minimum limits of $500,000 Each Accident, $500,000 Disease-Policy Limit and $500,000 Disease-Each Employee; (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $2,000,000.

11.14 Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions,’ ‘Fees,’ ‘Prohibited and Unauthorized Use,’ ‘Early Cancellation,’ ‘Termination for Cause,’ ‘Suspension for Prohibited Acts,’ ‘Suspension for Non-Payment,’ ‘Suspension for Present Harm,’ ‘Suspension and Termination of Free Services,’ ‘Effect of Termination or Expiration,’ ‘Intellectual Property,’ ‘Customer’s Proprietary Rights,’ ‘Confidentiality,’ ‘Publicity,’ ‘Indemnification,’ ‘Disclaimers; Limitations of Liability,’ ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law.’

11.15 Dispute Resolution. Customer acknowledges and agrees that any controversy or claim arising out of, or in any way related to, this Agreement, will be settled by exclusively by binding arbitration, before a single, neutral arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA). The arbitrator will be appointed by agreement of the parties, but in the event that the parties fail to agree on the arbitrator, the AAA shall appoint an arbitrator with sufficient understanding of the business and technology issues relevant to resolving the dispute. The arbitrator shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. The arbitration will take place in Calloway County, Kentucky (or another location if mutually agreed upon by the parties). The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court with competent jurisdiction.

11.16 Equitable Relief. Customer acknowledges and agrees a breach of this Agreement would cause Company irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Company may be entitled, Customer acknowledges and agrees that Company may, seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement. Claims by Company for injunctive relief or other equitable relief may be filed in the state or federal courts of Kentucky (or any other jurisdiction selected by Company for such action) for an order effective until the conclusion of arbitration and enforcement of the arbitration award, and such claims may be filed without a good faith attempt to resolve the issues underlying such claims.

11.17 Choice of Forum. If it is determined for any reason that a legal action between the parties must be commenced in a court of law instead of arbitration, Customer acknowledges and agrees to bring any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder solely in the courts of Calloway County, Kentucky or the United States District Court for the Wester District of Kentucky, Paducah Division. Company and Customer each agree to submit to the exclusive jurisdiction of such Kentucky courts in any such suit, action or proceeding. This Section 11.17 shall not modify or supplant the Dispute Resolution provision set forth in Section 11.15 of this Agreement, which is intended to be the primary and exclusive means of resolving all disputes between the Parties.

11.18 Choice of Law. This Agreement, including all cover pages, exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with the internal laws of the State of Kentucky, USA without regard for its conflict of laws principles.

11.19 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

11.15 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.