Terms of Service
Last modified: 01/24/2023
The following is a legal contract between you, the customer, and Ardent Growth, regarding the use of our services. By utilizing our products and services, you are agreeing to the terms outlined in this contract.
This contract comprises of several documents, including:
- General Terms: These contain the essential legal and commercial provisions that apply to your use of our products and services. Any references to Master Terms refer to these General Terms.
- Product Specific Terms: These include any additional terms that apply to your use of each of our product offerings, consulting and other services, and third-party services.
- Data Processing Agreement (DPA): This explains how we process your data and includes the EU Standard Contractual Clauses.
- Acceptable Use Policy (AUP): This is a set of rules outlining what is permitted while using our products and services.
- Your Order Form: This is the Ardent Growth-approved form created following your purchase of one of our products or services through our online payment process or in-app purchase. It contains all of the details about your purchase, including your subscription term, products and services purchased, and your fees. You will receive copies of your order form by email upon purchasing a product or service from Ardent Growth. You can request additional copies by contacting [email protected].
We may update these terms from time to time, and if you have an active Ardent Growth subscription, we will notify you of any updates via in-app notification or email (if you subscribe to receive email updates). You can find archived versions of the General Terms, Product Specific Terms, Jurisdiction Specific Terms, and DPA in our archives at https://ardentgrowth.com/legal/archive.
1. DEFINITIONS
“Add-Ons” refers to supplementary product enhancements that are available for purchase.
"Affiliate" refers to any entity that controls, is controlled by, or is under common control with a party to this Agreement. In this context, control refers to direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" or “Customer Terms of Service” refers to these General Terms and all materials referred or linked to in here, unless otherwise stated.
"Authorized Payment Method" refers to 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" refers to the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription 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 Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” refers to all confidential information disclosed by a party ("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" refers to the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" refers to all information that you submit or collect via the Subscription Service that is unique to you as a Customer. For product specific examples, see our Product Specific Terms. Customer Data does not include Ardent Growth Content.
"Customer Materials" refers to all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“DPA” refers to the Ardent Growth Data Processing Agreement at https://ardentgrowth.com/legal/dpa.
"Keyword Cluster Limit" refers to the number of keywords that you may cluster in any given calendar month, as detailed in the Product Specific Terms.
"Keyword Record Limit" refers to the number of records you store in our database in any given calendar month, as detailed in the Product Specific Terms.
“Free Services” refers to the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"Ardent Growth Content" refers to all forms of information, including but not limited to data, text, messages, software, sound, music, video, photographs, graphics, images, calculations, and tags that are incorporated into the Subscription Service or Consulting Services, including but not limited to Enrichment Data, Cluster Data, and Link Intelligence Data as defined in the Product Specific Terms.
"Order" or "Order Form" refers to the form or online subscription process approved by Ardent Growth, through which the customer agrees to subscribe to the Subscription Service and purchase Consulting Services.
"Personal Data" refers to any information related to an identified or identifiable individual, where such information is contained within Customer Data, and is protected as personal data or personally identifiable information under applicable Data Protection Laws as defined in the DPA.
"Product and Services Catalog" refers to the catalog of products and services offered by Ardent Growth, available at https://ardentgrowth.com/product-and-services, and may be updated by Ardent Growth from time to time.
"Product Specific Terms" refers to the additional terms that apply to the customer's use of Ardent Growth products, consulting services, and Third-Party Products. These terms form a part of the Agreement and can be found at https://ardentgrowth.com/product-specific-terms.
"Sensitive Information" refers to 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, personal information of children protected under any child data protection laws, and any other information or combinations of information that fall 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" refers to the amount paid for the Subscription Service.
"Subscription Service" refers to all web-based applications, tools, and platforms subscribed to under an Order Form or made available by Ardent Growth, and any ancillary products and services provided by Ardent Growth, and are developed, operated, and maintained by Ardent Growth, accessible via https://grouper.ardentgrowth.com or another designated URL.
"Subscription Term" refers to the initial term of subscription to the applicable Subscription Service as specified on the Order Form, and each subsequent renewal term if any. For Free Services, the Subscription Term will be the period during which the customer has an account to access the Free Services.
"Third-Party Products" refers to non-embedded products and professional services provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Ardent Growth apps available from, for example, our marketplaces, directories, and links made available through the Subscription Service and non-Ardent Growth services.
"Third-Party Sites" refers to third-party websites linked to from within the Subscription Service, including Communications Services.
"Total Committed Subscription Value" refers to the aggregate amount of Subscription Fees paid or payable to Ardent Growth during the customer's then-current Subscription Term for all of their Ardent Growth orders, but this amount excludes fees for renewals, Consulting Services, and applicable taxes.
"Users" refers to the customer's employees, representatives, consultants, contractors, or agents who are authorized to use the Subscription Service for the customer's benefit.
"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.
2. USE OF SERVICES
2.1 Access to Subscription Service.During the Subscription Term, we will grant your Users access to the Subscription Service as outlined in this Agreement and the corresponding Order. We may also provide access to our Free Services at any time, by activating them in applications developed by Ardent Growth. We may utilize third-party service providers to deliver some or all elements of the Subscription Service.
It is your responsibility to ensure that all access, use, and receipt by your Users complies with the terms of 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 this Order, provided that all such access, use, and receipt by your Affiliate's Users is in compliance with the Agreement, and you will be liable for your Affiliates' compliance with the Agreement at all times.
2.2 Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Ardent Growth account, if this option is made available by us. This Agreement will apply to all additional Orders and all additional features that you activate from within your Ardent Growth account.
2.3 Availability and Uptime. For details regarding Ardent Growth's Service Uptime Commitment, please refer to the Product Specific Terms.
2.4 Restrictions. The restrictions that apply to your use of the Subscription Service will be specified in your Order Form, this Agreement, or in our Product and Services Catalog. For our Free Subscriptions, these restrictions may also be designated only within the product itself. For further information on the restrictions that apply to your subscription, please refer to the Product Specific Terms.
Age Requirement. You must be 18 years of age or older to use the Subscription Service.
2.5 Downgrade Rights. Depending on your Ardent Growth product, you may be entitled to downgrade your subscription. For further information on the downgrade terms that apply to your subscription, please refer to the Product Specific Terms.
2.6 Modifications. We may make changes to the Subscription Service from time to time, including by adding or removing features and functions, in an effort to improve your experience. For further information on our rights to make modifications to your subscription, please refer to the Product Specific Terms.
2.7 Customer Support. For information on the customer support terms that apply to your subscription, please refer to the Product Specific Terms.
2.8 Compliance with Acceptable Use Policy. You must comply with our Acceptable Use Policy located at https://ardentgrowth.com/legal/acceptable-use ("AUP").
2.9 Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. Additionally, you may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
Furthermore, the Subscription Service is not designed to comply with certain industry-specific regulations such as HIPAA or FISMA, and therefore you may not use the Subscription Service where your communications would be subject to such laws, including but not limited to GLBA.
Additionally, you must promptly notify us of any unauthorized use of your Users’ identifications and passwords or your account by emailing us at [email protected].
2.10 No Sensitive Information. You acknowledge that the Subscription Services have not been designed to process or manage sensitive information and accordingly you agree not to use the Subscription Service to collect, manage or process sensitive information. Furthermore, we will not have and we specifically disclaim any liability that may result from your use of the Subscription Service to collect, process or manage sensitive information.
2.11 Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, one or more content marketers, a sales sponsor, an executive sponsor and a technical resource (or equivalent). Responsibilities that may be required include keyword research; planning of marketing programs; setting of a content creation calendar; creating blog posts, link building, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing processes.
2.12 Free Trial. If you register for a free trial, we will provide the relevant Subscription Service to you for a trial period free of charge, until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. If you do not purchase a subscription to the relevant Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial and we will not be able to retrieve it. Any additional terms and conditions specified on the trial registration web page will also apply.
2.13 Legacy Products. If you have a legacy Ardent Growth product, certain features and limits may differ from those outlined in these General Terms, Product Specific Terms and/or the Product and Services Catalog. We reserve the right to move you to our current products at any time if you have a legacy Ardent Growth product. If you determine that you are using a legacy product and wish to upgrade to a current version, you must execute a new Order Form.
3. FEES
3.1 Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you exceed your Maximum Keyword Credits, Database Records, or other applicable limits (as outlined in the 'Limits' section), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Keyword Credits or Database Records, or (iv) as otherwise agreed upon in your Order. We may also choose to decrease your fees upon providing written notice to you. Further information regarding how your fees may be adjusted can be found in the Product Specific Terms.
3.2 Fee Adjustments at Renewal. Upon renewal, we reserve the right to increase your fees up to our then-current list price as outlined in our Product and Services Catalog. If this increase applies to you, we will provide notice at least thirty (30) days prior to the renewal and the increased fees will take effect at the start of the next renewal term. In the event of disagreement with the increase, either party has the option to terminate the subscription at the end of the current term by providing notice as outlined in the 'Notice of Non-Renewal' section.
3.3 Payment of Fees. If you choose to pay by credit card, you authorize us to charge your Authorized Payment Method for all fees owing during the Subscription Term. Additionally, you authorize us to utilize a third party for processing payments and consent to the disclosure of payment information to said third party.
3.4 Payment against invoice. If you choose to pay by invoice, we will invoice you no more than forty-five (45) days prior to the start of the Subscription Term and each subsequent Billing Period, and at other times during the Subscription Term when fees are payable. All amounts invoiced are payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
3.5 Payment Information. It is your responsibility to keep your Authorized Payment Method, contact information, and billing information up to date for the payment of incurred and recurring fees. Changes can be made on your Billing Page within your Customer account. You authorize Ardent Growth to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until 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. All fees are due and payable in advance throughout the Subscription Term.
3.6 Taxes. All fees exclude any applicable taxes, which will be charged as necessary. You agree to pay any taxes imposed on your use of the Subscription Service and performance of Consulting Services. You will not be held liable for any taxes based on our gross revenues or net income. If you are located in the European Union, all fees exclude Value Added Tax (VAT) and you confirm that you are registered for VAT in your member state. Upon request, you will provide us with your VAT registration number in your member state. If you fail to provide us with a VAT registration number prior to processing the transaction, we will not issue refunds or credits for any VAT that was charged. If you are subject to Goods and Services Tax (GST), all fees exclude GST. If you are located in Canada, all fees exclude GST, PST, and HST.
3.7 Withholding Tax. If you are required by law to deduct or withhold tax from payment of your invoice with Ardent Growth, you may deduct this amount from the applicable Subscription Fee, to the extent it is due and payable as required withholding tax under applicable laws.
You will not be required to repay the Deduction Amount to us, as long as you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within 90 days from the date of the invoice. If you fail to provide this tax receipt within the specified time period, then all fees, including 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.
4. TERM AND TERMINATION
4.1 Subscription Term and Renewal. The initial term of your subscription will be as specified in your Order. Unless otherwise stated in your Order, your subscription will automatically renew for the shorter of the initial subscription term or one year.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, written notice of non-renewal must be provided by either you or us in order to prevent the renewal of your subscription. The deadline for sending this notice may vary based on the Ardent Growth product and edition you have subscribed to. For more information on non-renewal notice periods, please refer to the Product Specific Terms.
If you choose not to renew, you may send a notice of non-renewal by emailing us at [email protected].
4.3 Early Cancellation. You may choose to cancel your subscription early, however, we will not provide any refunds for prepaid fees or unused Subscription Fees and you will be required to promptly pay all unpaid fees due through the end of the Subscription Term. Please refer to the 'Notice of Non-Renewal' section for information on how to cancel your subscription.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, in relation to any or all Subscription Services, upon providing thirty (30) days written notice to the other party of a material breach, if such breach remains uncured at the expiration of such period. The Agreement may also be terminated 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 your actions or conduct negatively reflects on or affects us, our prospects, or our customers.
This Agreement cannot be terminated prior to the end of the Subscription Term except as provided in this Section 4.
4.5 Suspension
4.5.1 Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without prior notice for:
- (i) 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,
- (ii) use of the Ardent Growth topic clustering and data processing service to produce autogenerated or auto-assisted content that does not adhere to Google's EEAT guidelines,
- (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
- We may, without prior notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
4.5.2 Suspension for Non-Payment. We will provide you with notice of any unpaid amounts 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 to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm. If your website, or use of, the Subscription Service:
- (i) is being subjected to denial of service attacks or other disruptive activity,
- (ii) is being used to engage in denial of service attacks or other disruptive activity,
- (iii) is creating a security vulnerability for the Subscription Service or others,
- (iv) is consuming excessive bandwidth or storage, or
- (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, 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.
4.5.4 Suspension and Termination of Free Services. We reserve the right to suspend, limit, or terminate access to the Free Services at any time and for any reason, without prior notice. We may also terminate your use of the Free Services due to prolonged inactivity.
4.6 Effect of Termination or Expiration. Upon termination or expiration of your paid subscription, we may continue to make the Free Services available to you, unless your Agreement was terminated for cause. However, you will continue to be bound by the terms of this Agreement for as long as you have access to any accounts provided by Ardent Growth.
Upon termination or expiration of this Agreement, you must immediately cease all use of the Subscription Service and Ardent Growth Content. If termination is initiated by you for cause, we will promptly issue a refund for any prepaid but unused fees pertaining to the Subscription Service after the date of termination. In the event of termination by us for cause, you will be required to promptly pay any unpaid fees that are due through the end of the Subscription Term. In any case, fees are non-refundable after the expiration of the Subscription Term.
5. CUSTOMER DATA
5.1 Proprietary Rights. The customer shall retain all rights to any Customer Materials and Customer Data provided to Ardent Growth. This Agreement shall not grant Ardent Growth any ownership rights to the Customer Materials or Customer Data. The customer grants Ardent Growth and its licensors permission to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to the customer and as otherwise permitted by this Agreement. If the customer is using the Subscription Service or receiving Consulting Services on behalf of another party, the customer represents and warrants that they have all necessary rights and permissions to do so.
5.2 Limits on Ardent Growth's Use of Customer Data. Ardent Growth shall not use Customer Data to contact any individual or company except as directed or permitted by the customer. Ardent Growth shall use Customer Data only for the purpose of providing the Subscription Service and Consulting Services to the customer and only as permitted by applicable law and this Agreement.
5.3 Data Practices and Machine Learning.
5.3.1 Usage Data. Ardent Growth may collect information about the customer and their Users when they interact with the Subscription Service as permitted by this Agreement.
5.3.2 Machine Learning. Ardent Growth may, as permitted by this Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.
5.3.3 Privacy Policy. For more information on these practices, please see Ardent Growth's Privacy Policy.
5.4 Protection of Customer Data. The terms of the Data Processing Agreement (DPA) shall be incorporated by reference and shall apply to the extent any Customer Data includes Personal Data. The DPA shall set out how Ardent Growth will process Personal Data on behalf of the customer in connection with the Subscription Services provided under this Agreement. Ardent Growth shall maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including Ardent Growth's security measures in Annex 2 of the DPA.
5.5 Regional Data Hosting. Ardent Growth shall store the customer's Customer Data in a specific location or geographical region (e.g. North America or Europe) as part of the customer's subscription, subject to the terms of this Agreement and Ardent Growth's Regional Data Hosting Policy.
5.6 Customer Data Transfers. Ardent Growth and its Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Subscription Service. To the extent Ardent Growth processes Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA) Ardent Growth's Standard Contractual Clauses will apply, as set out in the DPA. For more information, see Ardent Growth's Privacy Policy.
5.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please see the ‘Ardent Growth Obligations’ section of the DPA. The customer can learn more about their right to retrieve Customer Data from their Ardent Growth account in the ‘Retrieval of Customer Data’ sections as specified in Ardent Growth's Product Specific Terms.
6. 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. 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. This includes our trademarks, which you may not use without our prior written permission.
6.2 Customers are encouraged to provide feedback on the Subscription Service or Consulting Services, including suggestions for improving it, and vote on suggestions they would like to see implemented. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
7. CONFIDENTIALITY
7.1 The recipient party shall: (i) safeguard the confidentiality of the disclosing party's confidential information using the same level of care it uses to protect its own confidential information of a similar nature, but in no case less than reasonable care, (ii) not utilize any confidential information of the disclosing party for any purpose outside the scope of this agreement, (iii) not disclose any confidential information of the disclosing party to any third party (with the exception of third-party service providers utilized by us to provide elements of the Subscription Service or Consulting Services), and (iv) limit access to the disclosing party's confidential information to employees, contractors, and agents of the recipient party and its affiliates who require such access for purposes consistent with this agreement and who have signed confidentiality agreements with the recipient party that contain protections no less stringent than those outlined in this agreement.
7.2 The recipient party may disclose the disclosing party's confidential information if required by federal, state, or local laws, statutes, rules, or regulations, subpoenas, or legal process; provided, however, that (i) the recipient party shall give the disclosing party prompt notice of any such request, 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 recipient party shall disclose the minimum amount of confidential information required under the applicable legal mandate; (ii) the recipient party shall refer the request to the disclosing party and shall provide reasonable assistance to the disclosing party, at the disclosing party's expense, in opposing such disclosure or seeking a protective order, unless the recipient party is explicitly prohibited from doing so by law or court order; and (iii) in no event shall the recipient 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 recipient party's inquiries in connection with the request to disclose the confidential information.
8. PUBLICITY
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by emailing [email protected] with your request to opt-out and filling out the Publicity Opt-Out form that we send to you in return.
9. INDEMNIFICATION
You agree to indemnify, defend and hold harmless us and our affiliates, at your own expense, against any third-party claim, lawsuit, action or proceeding (each, a "Claim") brought against us (and our officers, directors, employees, agents, service providers, licensors and affiliates) by a third party not affiliated with us or our affiliates to the extent that such Claim is based upon or arises out of:
(a) unauthorized or illegal use of the Subscription Service by you or your affiliates;
(b) your or your affiliates' noncompliance with or breach of this Agreement;
(c) your or your affiliates' use of third-party products; or
(d) the unauthorized use of the Subscription Service by any other person using your user information.
We will: notify you in writing within thirty (30) days of becoming aware of any such claim; give you sole control of the defense or settlement of such claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim.
You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. 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; 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 upon 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 REGARDING 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 fullest extent allowed by law, neither party or their affiliates shall be held liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data, or business opportunities arising out of or in relation to this agreement, whether the action is in contract or tort and regardless of the theory of liability.
10.4 Limitation of Liability. Except for any liability associated with the payment of fees, liability arising from obligations under the 'Indemnification' section, and liability for violation of our intellectual property rights, if either party or their affiliates are found to have any liability to the other party, their affiliates, or any third party, the aggregate liability of the party and their affiliates shall be limited to an amount equal to the total amounts paid or payable for the subscription service in the twelve-month period preceding the event giving rise to the claim.
10.5 Third Party Products. We and our affiliates shall not be held liable for any third-party products that you use. Our licensors shall have no liability of any kind under this agreement.
10.6 Agreement to Liability Limit. You acknowledge and agree that without your agreement to this limitation of liability, we would not provide the subscription service to you.
10.7 Additional Coverage Terms. If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$30,000), the Ardent Growth Additional Coverage Terms available at Appendix 1 to these General Terms shall apply and shall be incorporated into this agreement.
11. MISCELLANEOUS
11.1 Amendment; No Waiver. We may modify any part or all of this Agreement by posting a revised version on our website at https://ardentgrowth.com/legal/terms. The revised version will become effective and binding for any subsequent transactions or renewals of service you enter into with Ardent Growth, including any automatic renewals of service.
If you do not agree with any modifications to the Agreement, you must notify us in writing at least thirty (30) days prior to the renewal of your service. If you provide us with this notice, your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date. After that, the current terms posted on our website at https://ardentgrowth.com/legal/terms will apply. However, if we can no longer reasonably provide the subscription service to you under the terms prior to modification (for example, if the modifications are required by law or result from general changes to the service), then this Agreement and/or affected Subscription Services will terminate upon our notice to you, and we will promptly refund any prepaid but unused fees for 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 held 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 Limitation of Actions. 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. It is acknowledged and agreed by both parties that no joint venture, partnership, employment, or agency relationship exists between them.
11.5 Compliance with Laws. Ardent Growth shall comply with all applicable U.S. state and federal laws (where applicable) in the provision of the Subscription Service, the Consulting Services, and the processing of Customer Data. Ardent Growth reserves the right to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request at all times.
The Customer shall comply with all applicable laws in the use of the Subscription Service and Consulting Services, including any applicable export laws. The Customer shall comply with all applicable laws related to the handling of proprietary data, personally identifiable information, and other sensitive data whether belonging to the Customer or their Affiliates. The Customer shall comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in the use and receipt of the Subscription Service and Consulting Services. The Customer shall 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 shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
11.7 Notices. To Ardent Growth: Notice shall be sent to the contact address set forth in the Jurisdiction Specific Terms, and shall be deemed delivered as of the date of actual receipt.
To the Customer: the address as provided in the Ardent Growth Order Form for the Customer. Ardent Growth may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to the Customer by email to the Customer's e-mail address(es) on record in Ardent Growth's account information for the Customer or through the notifications center of the Subscription Service. Ardent Growth may give notice to the Customer by telephone calls to the telephone numbers on record in Ardent Growth's account information for the Customer. The Customer shall keep all of their account information current.
11.8 Entire Agreement. This Agreement, along with our Privacy Policy, constitutes the entire agreement between us regarding the Subscription Service and Consulting Services and supersedes any prior proposals or agreements, whether electronic, oral, or written. We reject any additional or different terms proposed by you, including those contained in any purchase order, acceptance, 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. We may 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 may not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor in the event 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 Growth affiliate 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 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 the 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 ensure compliance with the terms of this Agreement by your Affiliates.
11.13 Insurance. During the duration of this Agreement, we will obtain and maintain liability insurance, at our own expense, with reputable insurance providers that have an A.M. Best rating of A (VII) or higher. This insurance will include the following coverage and minimum limits: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate; (ii) Workers' Compensation & Employers Liability Insurance (as required by the state), with a minimum limit of $500,000 per 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 $5,000,000; and (iv) Umbrella/Excess Liability Insurance, with a minimum limit of $2,000,000.
11.14 U.S. Government Entities. If you are a U.S. local, state or federal government entity, the Ardent Growth Government Customer Additional Terms, located in Appendix 2 of these General Terms, will apply to your Agreement. In the event of a conflict with the Agreement, these terms will take precedence.
11.15 Survival. The following sections will remain in effect after 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 Entities and Applicable Law’. Additionally, the ‘Retrieval of Customer Data’ sections and the ‘Beta Services’ section of the Product Specific Terms page will remain in effect after expiration or termination of this Agreement.
11.16 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will take precedence, but only as it relates to that specific Order.
APPENDIX 1: ADDITIONAL COVERAGE TERMS
These Additional Coverage Terms will apply if your Total Committed Subscription Value exceeds thirty thousand U.S. dollars (USD$30,000). If, at any point during your Subscription Term, your Total Committed Subscription Value falls below this amount, these terms will no longer apply.
Indemnification: We will indemnify and hold you harmless against any third-party action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) to the extent that such action is based upon or arises out of (1) an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).
APPENDIX 2: U.S. GOVERNMENT CUSTOMER ADDITIONAL TERMS
These Ardent Growth Government Customer Additional Terms apply to U.S. local, state, or federal government entities, including public institutions of higher education, that use Ardent Growth products or services. These terms apply to the extent required by applicable law. We may update or change these terms in the same way as we can update or change our Agreement as we describe in the ‘Amendment; No Waiver’ section of our General Terms.
1. Governmental Purpose Restriction
The Subscription Service and Consulting Services may only be used by Government Customers for governmental-related purposes. In the event that the Subscription Service and/or Consulting Services are utilized for any private, personal, or non-governmental-related purpose, these terms shall not apply.
2. Indemnification for Government Customers
The obligations outlined in the ‘Indemnification’ section of the General Terms shall only be applicable to Government Customers to the extent permitted by applicable law.
3. Limitation of Liability for Government Customers
The 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms shall be applicable to Government Customers to the extent permitted by applicable law. Additionally, the following sentence shall be added to the end of the 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms, or to the amended ‘Limitation of Liability’ section in the Ardent Growth's Additional Coverage Terms in Appendix 1 to the General Terms, if applicable: “However, this limitation shall not apply to either party's liability arising from its negligence that results in bodily injury, death, or damage to tangible property.”
4. Contracting Entity and Governing Law for Government Customers
The ‘Contracting Entities and Applicable Law’ section of the Jurisdiction Specific Terms is revised as follows:
As a Government Customer, you are entering into this Agreement with ARDENT GROWTH, INC. and this Agreement shall be governed by the laws applicable to you as a Government Customer. If no such laws are specified, then the laws of the Commonwealth of Kentucky, U.S.A., without reference to conflicts of law principles shall apply. The Government Customer agrees that Ardent Growth, Inc. has standing and privity of contract to bring a claim directly against the Government Customer in a court or body of competent jurisdiction.
