GRIN Technologies Inc.
Professional Services Agreement

This Professional Services Agreement, including any exhibits, schedules, appendices and addenda (collectively, the “Agreement”) is between GRIN Technologies Inc. (“GRIN”), and the individual or entity signing any Order that references this Agreement (“Customer”). This Agreement is entered into on the date of the last signature on an Order executed by GRIN and Customer referencing this Agreement (“Effective Date”).

THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH CUSTOMER AFFILIATES. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF THE INDIVIDUAL DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.

1. DEFINITIONS

“Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.

“Authorized Partner” is a reseller or distributor that is enabled and authorized by GRIN to sell Professional Services to be delivered by GRIN subject to supplemental terms, conditions and partner program requirements.

“Change Order” means any change to an Order, as described in Section 2.2 below. Upon the parties’ mutual execution of a Change Order, it will be deemed incorporated by reference in the applicable Order.

“Customer Content” is all information, content and data provided by or on behalf of Customer or made available or otherwise utilized in the provisioning of the Professional Services.

“Developments” means Improvements to GRIN’s Pre-Existing Work, new technology, written materials, or other deliverables under this Agreement but excluding any Pre-Existing Work.

“Fees” are those rates and fees set forth within the Order as applicable.

“Improvements” means all modifications and derivative works to Pre-Existing Works resulting from the Professional Services contemplated by this Agreement.

“Pre-Existing Work” means all rights, title and interest in and to a party’s technology and Confidential Information, including all intellectual property rights imbued to a party as of the Effective Date of this Agreement, or as applicable, the effective date of any Order.

“Professional Services” means the GRIN Professional services offerings including, without limitation, implementation, configuration, consulting, deliverables or training services to be provided to Customer under any applicable Order. “Professional Services” shall be deemed to include both “One-Time Services” and “Recurring Services” as defined herein.

“Professional Services” shall be deemed to include both “One-Time Services” and “Recurring Services” as defined herein.

“Order” means a written GRIN (i) order document or (ii) statement of work (for One-Time Services) executed by GRIN and Customer describing Professional Services to be provided, applicable Fees, payment terms and other transaction details.

“Recurring Services” means the Professional Services to be provided on a recurring annual subscription based term basis as identified in the applicable Order and shall run conterminously with Customer’s Subscription Services term. Recurring Services shall automatically renew for an additional twelve (12) month term conterminously with Customer’s Subscription Services term unless either GRIN or Customer provides a written notice of non-renewal at least thirty (30) days prior to the expiration of the then-existing Recurring Services term.

“Subscription Services Agreement” means the separate agreement available at https://grin.co/legal-subscription-services-agreement/ as between GRIN and Customer governing the parties’ rights and obligations with respect to the Subscription Services, unless GRIN and Customer have executed a written Subscription Services Agreement, in which case such negotiated written agreement shall govern.

“Subscription Services” means software, and other branded offerings made available by GRIN, including but not limited to, GRIN’s cloud-based influencer marketing software as a service platform “Creator Management Services” offered and as more fully described and defined in GRIN’s Subscription Agreement. Notwithstanding the foregoing, all Professional Services purchased under an Order as referenced herein are purchased separately from the Subscription Services and all references to “Order” herein shall not apply in any way to any Subscription Services, including without limitation, with respect to payment obligations and termination rights.

2. PROFESSIONAL SERVICES

2.1 The Professional Services will be provided pursuant to a mutually executed Order. Customer shall reimburse GRIN for approved expenses reasonably incurred in the performance of Professional Services, provided GRIN shall provide valid receipts and other reasonable documentation to Customer upon request. GRIN may provide the Professional Services through its third-party contractors but, in all such cases, GRIN will remain responsible for such contractor’s performance pursuant to the terms hereunder.

2.2 If the parties desire to make changes to an Order during the engagement to address changes in scope or cost, the parties will complete and execute a Change Order. Customer acknowledges that it may need to purchase additional Professional Services if not completed within any estimated time frames as presented within an Order.

2.3 This Agreement is limited to Professional Services and does not convey any right to access or use Subscription Services. Any access to or use of Subscription Services by Customer will be governed exclusively by GRIN’s Subscription Services Agreement or other separate agreement entered into by the parties explicitly governing such rights and obligations. Customer agrees that its purchase of Professional Services is not contingent on: (i) the delivery of any future Subscription Services functionality or features, other than any deliverables as set forth and subject to the terms of the applicable Order; or (ii) on any oral or written public comments by GRIN regarding future features or services of the Subscription Services or Professional Services.

3. CUSTOMER COOPERATION

3.1   Customer acknowledges that the timely and successful provision of the Professional Services and delivery of any related deliverables requires the good faith cooperation of Customer. Customer will use good faith efforts and cooperate with GRIN as necessary to facilitate the performance of the Professional Services which shall include, but not be limited, to the following: (i) assigning a project manager with the requisite skills and training to serve as Customer’s primary point of contact; (ii) establishing the overall project direction, including assigning and managing the Customer’s project personnel team; (iii) allocating sufficient resources to ensure Customer’s ability to meet its obligations; and (iv) providing GRIN with support as reasonably necessary for GRIN to provide Professional Services, including timely access to appropriate data and information, timely decisions and approvals. GRIN may rely upon the accuracy and completeness of data, material and other information furnished by Customer, without any independent investigation or verification. In the event that any failure by Customer to comply with the provisions of this Section 3 results in any delay in provision of the Professional Services, GRIN shall not be deemed in breach of this Agreement for such delay and Customer shall be responsible for any costs incurred by GRIN in addressing and remedying such delay.

4. ORDERING PROCESS

4.1 GRIN will provide to Customer the Professional Services for the Fees specified in the applicable Order.

5. TERM AND TERMINATION

5.1 This Agreement commences on the Effective Date and continues until it is terminated in accordance with this Section 5.

5.2 Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party hereto. Unless otherwise stated herein, termination of this Agreement shall not affect any Professional Services being delivered under an Order as of the date of termination, and this Agreement shall remain in full force and effect until the termination or expiration of any active Order.

5.3 Either party may terminate this Agreement and/or any Order executed between the parties if: (i) the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after written notice; or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

5.4 GRIN may, at its sole discretion and without prior notice to Customer, suspend delivering Professional Services if Customer breaches the terms of Section 6 (Payment of Fees) until such breach is remedied.

5.5 In the event this Agreement is terminated by Customer in accordance with Section 5.3, GRIN will refund to Customer a prorated amount equal to pre-paid Fees for the portion of Professional Services not provided as of the termination date, if any. If this Agreement is terminated by GRIN in accordance with this Section 5, Customer will pay (if applicable) any and all unpaid Fees due and payable as of the date of termination, to the extent permitted by applicable law. For the avoidance of doubt, in no event will termination relieve Customer of its obligation to pay any Fees payable to GRIN for the Professional Services performed in the period prior to the effective date of such termination.

5.6 Except as explicitly provided for herein, upon termination of this Agreement (or any Order as applicable) Customer shall not be entitled to any refund or credit.

6. PAYMENT OF FEES

6.1 Unless otherwise stated in the applicable Order, GRIN will invoice Customer for Professional Services Fees (i) on a one-time, upfront basis for One-Time Services and (ii) on a monthly or annual recurring basis for Recurring Services. All Professional Services Fees are non-cancellable. Customer will pay GRIN the applicable Fees without any right of set-off or deduction. All payments will be made in accordance with the payment details stated within the applicable Order. If not otherwise specified, all Fees will be due and payable within thirty (30) days of Customer’s receipt of an invoice. Except as expressly set forth in this Agreement, all Fees paid or due hereunder (including prepaid amounts) are non-refundable.

6.2 Any unpaid late Fees are subject to a finance charge of one percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of any and all taxes or duties, now or hereafter imposed by any governmental authority, including, but not limited to any national, state or provincial tax, sales tax, value-added tax, property and similar taxes, if any. Fees under this Agreement shall be paid without any withholding or deduction. In the case of any deduction or withholding requirements, Customer will pay any required withholding itself and will not reduce the amount to be paid to GRIN on account thereof.

7. CONFIDENTIALITY

Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information which are no less stringent than it utilized for its own Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the expiration or termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public other than through disclosure by the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by any law, rule or regulation.  If the Receiving Party receives a subpoena, order or other legal processes requesting disclosing of Proprietary Information of the Disclosing Party, it agrees to promptly provide the Disclosing Party notice of the request (unless prohibited by law) and cooperate with any steps the Disclosing Party elects to take in response to the request at Disclosing Party’s expense. Each party further agrees it shall require its personnel and representatives to agree to be bound by the confidentiality terms of this Agreement and be responsible for their breach thereof. The Receiving Party acknowledges that disclosure of any Proprietary Information by it to a third party may give rise to irreparable injury to the Disclosing Party or the owner of such information, not adequately compensated by damages.  Accordingly, the Disclosing Party may seek injunctive relief against the breach or threatened breach of this Section 7, in addition to any other legal remedies which may be available, without the requirement of posting bond. The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of the Disclosing Party’s legitimate business interests and are reasonable in scope and content.

8. PROPRIETARY RIGHTS

8.1 Each party will retain all rights, title and interest in their Pre-Existing Works. Except as explicitly set forth herein each party reserves all intellectual property rights not expressly granted to the other party, and no right, title or interest in a party’s Pre-Existing Works are transferred to the other party. Further, this Agreement does not contemplate Professional Services for the provision of any Improvements to Customer’s Pre-Existing Works, and any such deliverable would be subject to separate terms and conditions as to be mutually and explicitly identified and agreed between the parties in a fully executed statement of work or other form of written agreement.

8.2 To the extent applicable, Customer hereby grants GRIN a non-transferable, non-exclusive, world-wide and royalty free license to use Customer’s Pre-Existing Works necessary to provide the Professional Services under this Agreement. To the extent GRIN Pre-Existing Works or Developments are incorporated into the Professional Services or deliverables provided under this Agreement, such GRIN Pre-Existing Works and Developments are provided to Customer in a non-transferable, non-exclusive, world-wide and royalty free license to use solely for Customer’s internal business purposes subject to the applicable license agreement(s) governing Customer’s use of GRIN’s Subscription Services, and expressly conditioned on Customer’s compliance with the terms of such agreement(s). For the avoidance of doubt, between GRIN and Customer, GRIN will own all right, title and interest in and to the GRIN Pre-Existing Works, Developments, written reports, analysis, project plans and other documentation.

8.3 GRIN is not restricted from developing, implementing, marketing or selling services or deliverables for other customers or projects that are similar to the Professional Services or deliverables provided under this Agreement. Further, any Developments resulting from the provision of the Professional Servicers hereunder will be owned exclusively by GRIN; Customer will execute and deliver to GRIN any documents reasonably necessary to vest in GRIN all right, title and interest therein subject always to the terms of any applicable open source license.

9. LIMITED WARRANTY

9.1 GRIN represents and warrants that its provision of Professional Services under an Order, as applicable, will be rendered in a professional and workmanlike manner. If GRIN fails to meet the foregoing warranty, upon Customer’s written notice within ten (10) days after completion of the applicable Professional Services, GRIN will at its option and expense re-perform and correct of the nonconforming Professional Services within thirty (30) days. The foregoing represents Customer’s sole and exclusive remedy for a breach of this Section 9.1

9.2 The warranties in this Agreement are void to the extent caused by Customer’s: (i) alteration or modification of the Professional Services not otherwise directed by GRIN or its authorized representatives in writing failure to meet obligations set forth in this Agreement, an Order including, without limitation, those set forth in Section 3 (Customer Cooperation) above, to enable the provision of the Professional Services.

9.3 WARRANTY DISCLAIMER. SECTION 9.1 SET FORTH GRIN’S EXCLUSIVE WARRANTY WITH REGARD TO THE PROFESSIONAL SERVICES, AND IS IN LIEU OF ALL OTHER WARRANTIES. GRIN DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTEND PERMITTED BY APPLICABLE LAW, GRIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. GRIN SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY PROFESSIONAL SERVICES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CUSTOMER MODIFIES ANY PROFESSIONAL SERVICES IN A MANNER NOT INSTRUCTED BY GRIN. GRIN DOES NOT WARRANT THAT CUSTOMER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE PROFESSIONAL SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY OR ACHIEVE ANY SPECIFIC OUTCOME.

10. LIMITATION OF LIABILITY

10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROFESSIONAL SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

10.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID OR PAYABLE TO GRIN HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

11. SECURITY / DATA PROTECTION

11.1 Without limiting GRIN’s obligations as stated in Section 7 (Confidentiality), GRIN shall be responsible for establishing and maintaining a commercially reasonable information security program with regard to the delivery of Professional Services that is designed to: (i) ensure the security and confidentiality of the Customer Content; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Content; (iii) protect against unauthorized access to, or use of, the Customer Content; and (iv) ensure that all subcontractors of GRIN, if any, comply with all of the foregoing. In no case shall the safeguards of GRIN’s information security program be less stringent than the information security safeguards used by GRIN to protect its own commercially sensitive data.

12. FORCE MAJEURE

12.1 GRIN and Customer will not be liable for any default or delay in the performance of the Professional Services contemplated hereunder, excluding any payments obligations, to the extent that such default or delay is caused, directly or indirectly, by fire, flood, earthquake, explosions, elements of nature, acts of God, acts or regulations of government bodies, nuclear, chemical or biological contamination, court orders arising out of circumstances other than a breach of this Agreement by the Non-performing Party (as defined below), acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts or labor difficulties, epidemics or by any other event or circumstance that is beyond the reasonable control of GRIN or Customer. The party that is unable to perform shall be referred to as the “Non-performing Party.” Such an event or circumstance giving rise to the default or delay is hereby referred to as a “Force Majeure Event.” The Non-performing Party will be excused from any further performance obligations affected by such Force Majeure Event, other than any payment obligations due hereunder, for as long as such Force Majeure Event continues and the Non-performing Party continues to use commercially reasonable efforts to resume performance. Except as expressly excused in this Section 12, each party will continue to perform its respective obligations under this Agreement during a Force Majeure Event.

13. MISCELLANEOUS

13.1 Each party will comply with all laws and regulations with regard to meeting its obligations, and the exercise of its rights, under this Agreement. The Professional Services and any deliverables provided hereunder may be subject to export laws of the United States or other jurisdictions and as such each party represents that it is not named on any U.S. government denied-party list. Customer further acknowledges and agrees it shall not permit the export or re-export of any deliverables provided as a result of such Professional Services to a U.S. embargoed country or region, Designated National or in violation of any other U.S. export law or regulation. “Designated National” shall mean any person or entity on the U.S. Department of Treasury’s List of Specially Designated nationals or the U.S. Department of Commerce’s Table of Denial Orders.

13.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. All waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein.

13.3 All provisions of this Agreement that by their nature should survive termination will survive termination including, without limitation, the sections titled “Term and Termination,” “Payment of Fees,” “Confidentiality,” “Warranty Disclaimer,” “Limitations of Liability,” and “Miscellaneous.”

13.4 No party may assign any of its rights under this Agreement or delegate its performance under this Agreement without the prior written consent of the other party; except that either may assign its rights and delegate its performance under this Agreement to: (i) any entity that acquires all or substantially all of its assets; (ii) any affiliate that controls, is controlled by, or is under common control with the party; and (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization; provided that, in each instance, all Fees owed and due have been paid and the assignee agrees to be bound by all the terms of this Agreement.  

13.5 This Agreement, along with any Order that incorporates this Agreement by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other document will be incorporated into or form any part of this Agreement, and all such terms are void and rejected by GRIN. To the extent of a conflict as between the following documents, such conflict shall be resolved in the following order of precedence: (i) an Order; (ii) this Agreement unless the parties explicitly agree otherwise as evidenced in a writing executed by the parties’ authorized representatives.

13.6 The relationship of GRIN and Customer is that of independent contractors. There is no relationship of agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.

13.7 All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if in writing and sent by: (a) hand delivery, (b) certified mail, return receipt requested, (c) overnight carrier to the parties at the addresses set forth below, or (d) electronic mail, or to such other address as the party to receive the notice has designated by notice to the other party.  Notices to Grin shall be sent to: GRIN Technologies Inc. 400 Capitol Mall Suite 900, Sacramento, CA 95814, with copy to: legal@grin.co. Notices to Customer shall be sent to the email address set forth on during Customer’s registration for the Subscription Services or to an updated email address provided by Customer for notice purposes.

13.8 This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The federal and state courts sitting in Sacramento, California, will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the parties with respect to this Agreement and the transactions contemplated hereby.