Subscription Services Agreement

THIS SUBSCRIPTION SERVICES AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BETWEEN GRIN TECHNOLOGIES INC. (“GRIN”) AND YOUR ORGANIZATION (“CUSTOMER”) AS OF THE EFFECTIVE DATE (AS DEFINED HEREIN). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. 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 AND MAY NOT ACCESS OR USE THE SERVICES.

1. DEFINITIONS

1.1 “Affiliate” means an entity controlling, controlled by, or under common control with a Party. 

1.2 “Documentation” means the online user guides, instructions, demos, manuals and other similar documentation Grin provides within the Services or at https://grin.co/, as may be updated or amended from time to time, as determined and provided by Grin to Customer. 

1.3 “Effective Date” means the Effective Date of the applicable Order Form. 

1.4 “Creator” means any influencer or content creator that Customer engages through or in connection with the Services.

1.5 “Order Form” means a mutually executed Grin Order Form document used to purchase the access to and use of the Services during the Subscription Term (as defined herein). In the event of a conflict between the terms of this Agreement and an Order Form, the Order Form shall control.

1.6 “Services” means the Grin cloud-based influencer marketing software as a service platform (the “Grin Platform” or “Platform”) which is available to Customer during the subscription term based on the subscription level selected by Customer (“Subscription Term”), including without limitation all software, information, Documentation, updates, modifications, releases, versions, and enhancements to such software, features or functionality that may hereafter be generally released by Grin, as well as all present and future intellectual property, and other data not owned by Customer or any Creator.

1.7 “User” and “Users” means either (i) employees, contractors, representatives, agents and consultants of Customer and its Affiliates, or (ii) Customer’s clients under a written services agreement, who are designated by Customer to access and use the Services under this Agreement. Customer is responsible for all activities conducted under its User’s logins to the Services.

2. SERVICES AND SUPPORT

2.1 During the Term of this Agreement, Grin agrees to host, maintain and support the Services and make them available to Users, pursuant to the terms of this Agreement, including the Grin Documentation and Support Terms located at https://grin.ai/legal-support-terms/. Grin may update the Services during the term, however, at no time will an update materially diminish the function of the Services.

2.2 Grin will adopt and implement commercially reasonable data protection systems and procedures in accordance with industry standards and comply with the Data Security Policy located at https://grin.ai/legal-data-security/.  

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Subject to the terms and conditions of this Agreement, Users may access and use the Services consistent with the Documentation during the Term for Customer’s business purposes.  Neither Customer nor Users shall sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Services except as expressly provided for by this Agreement. Customer and Users may not (i) decompile, disassemble, translate or reverse engineer the Services; (ii) interfere with the operation of the Services, circumvent its access restrictions or conduct any security or vulnerability test of the Services;  (iii) send or store in the Services any personal health data, credit card data, personal financial data or other such sensitive data; (iv) send or store in the Services any malicious code; (v) remove from the Services any language or designation indicating the confidential nature thereof or the proprietary rights, notices or labels of Grin or its suppliers; (vi) directly or indirectly use the Services for the purpose of building a competitive product, timesharing or otherwise for the benefit of a third party or (vii) post incomplete or inaccurate information on or through the Services. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

3.2 Customer will cooperate with Grin and provide information reasonably necessary to implement the Services for Customer.

3.3 Customer may not remove or export from the United States or allow the export or re-export of the Services or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  

4. SERVICE DATA AND CUSTOMER DATA; LICENSES  

4.1 “Service Data” means data, information, material or Documentation made available or transmitted to Customer or Users via the Services, or otherwise provided to Customer or Users by Grin, together with any derivative works made therefrom (but excluding any incorporated Customer Data). During the Term of this Agreement, Grin grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access, capture, copy, store, transmit, maintain and display the Service Data solely to the extent necessary to access and use the Services in accordance with this Agreement. 

4.2 Customer will use reasonable efforts to maintain the security and integrity of the Services and the Service Data and will inform Grin of any unauthorized access to the Service Data.

4.3 “Customer Data” means Customer’s information or electronic data that Customer or any User uploads into the Services or otherwise transmits to Grin with respect to the Services. Customer grants to Grin (i) a non-exclusive, non-sublicensable, non-transferable (except pursuant to this Agreement) license to use, access, capture, copy, store, transmit, maintain and display the Customer Data during the Term to provide the Services, and (ii) a non-exclusive, non-sublicensable, non-transferable (except pursuant to this Agreement), worldwide, fully-paid, perpetual license to use anonymized and de-identified Customer Data (as well as information and data derived therefrom) to improve the Services. Upon termination or expiration of the Agreement Grin will destroy all copies of the Customer Data (other than anonymized and de-identified Customer Data) in accordance with Grin’s data retention schedule except for Customer Data contained in automatic backups or historical archives that must be retained to fulfill obligations under this Agreement for regulatory, legal or audit purposes. Customer may submit a written request for the deletion of Customer Data at any time prior to Grin’s scheduled data retention destruction and Grin will certify the same in writing to Customer within a reasonable timeframe, if such timeframe is not proscribed by applicable law. Grin will handle Customer Data in accordance with this Agreement and its privacy policy (https://www.grin.ai/privacy) and will inform Customer of any third party who requests or obtains access to the Customer Data.

4.4 As between Grin and Customer, Grin will own all right, title and interest in and to the Services and Service Data, and Customer will own all right, title and interest in and to the Customer Data. This Agreement does not transfer or convey to either Party or any third party any right, title or interest in or to the Services, Service Data or Customer Data, or any associated intellectual property rights, but only the limited rights expressly set forth this Agreement. Upon termination of this Agreement, Customer will discontinue use of the Services.

5. TRIAL SERVICES; BETA PROGRAM AND GRIN AI

5.1 The following applies to any use of Services that Grin makes available to Customer without charging a fee (“Trial Services”). Unless otherwise set forth in an Order Form: (i) Trial Services for new Customers have a thirty (30) day term, and (ii) upon expiration of the Trial Services term, Customer’s access to the Grin Services will be subject to the annual Fees for the Grin “Essential” Services package (or similar entry-level package) in effect at the time of the Trial Services expiration (iii) Grin’s right to use Customer’s name and logo under Section 14.1 (Publicity) will not be in effect during the Trial Services term; (iv) the Grin Support Terms identified in Section 2.1, Section 3 (Support), and Section 11.2 (Grin Warranties) do not apply to Trial Services, and (v) Grin’s maximum liability for all Claims or Losses (as defined herein) under the Agreement is subject to a cumulative and aggregate cap of $1,000 USD.

5.2 If Customer is invited to and agrees to participate in Grin’s Evaluation Program or Beta Program (collectively, “Beta Services”), Customer acknowledges that Beta Services are prerelease versions of the Services and as such may contain errors, bugs, or other defects. Customer acknowledges and understands that its use of the Beta Services is not required and is at Customer’s own risk, and that Beta Services are made available on an “as is” basis without warranties of any kind, without updates and support, may be discontinued or modified at any time, and may be subject to other terms. Beta Services are not for production use, not supported, and not subject to availability or security obligations. Grin will have no liability for any harm or damage arising out of or in connection with Beta Services.

5.3 Grin may offer features or tools as part of the Services that are powered by artificial intelligence, machine learning or similar technologies (collectively, “Grin AI”). The Grin AI Terms of Use located at: https://grin.ai/legal-ai-terms/ govern your access to and use of the Grin AI within the Services.

6. 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). Proprietary Information of Grin includes non-public information regarding features, functionality and performance of the Service.  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 disclosure 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 its personnel and representatives are to be bound by confidentiality terms no less restrictive than those contained in this Agreement and that each Party be responsible for breach by its personnel and representatives. The Receiving Party acknowledges that disclosure of any Proprietary Information by it to an unauthorized third party may give rise to irreparable injury to the Disclosing Party or the owner of such information, and may not be adequately compensated by damages.  Accordingly, the Disclosing Party may seek injunctive relief against the breach or threatened breach of this Section 6, 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.

7. PRIVACY

The data processing addendum (“DPA”) available at https://grin.ai/legal-dpa/ is incorporated by reference into the Agreement. Customer agrees that Grin may update the DPA if and when required by changes to applicable law, regulations, or regulatory guidance. 

8. PAYMENT OF FEES

8.1 Customer agrees to pay all Fees for the Grin Services as set forth in the Services section of each Order Form (“Fees”).  Except as otherwise specified in this Agreement, all payment obligations are non-cancelable and Fees paid are non-refundable.  If Customer has chosen a monthly or quarterly billing frequency, Customer must be enrolled in Grin’s automatic payment program and agrees to submit and maintain an active credit card on file with Grin at all times during this Agreement. Customer’s credit card on file will be automatically charged for all monthly or quarterly billing intervals. Customers who have chosen an annual billing frequency may choose to be invoiced by Grin. If Fees are to be invoiced to Customer, such invoice will be provided electronically and will be due and payable as stated in the invoice or in the Payment Terms portion of each Order Form.  Grin does not accept payment by paper check. Any invoiced amounts not timely paid will accrue interest at the rate of one and a half percent (1.5%) per month. If any undisputed amount owed by Customer is thirty (30) days or more overdue, Grin may, with three (3) days’ prior notice to Customer, without limiting Grin’s other rights and remedies, suspend Customer’s access to the Services until such amounts are paid in full. Customer may monitor its use of the Services at any time by accessing its dashboard within the Platform. If Customer’s use of the Services exceeds the subscription level set forth in the applicable Order Form, Customer will receive a notification via the Platform and be prevented from further use of the Platform until the Parties mutually agree in writing on a subscription level that accounts for Customer’s required expanded capacity. Grin reserves the right to change the Fees or other applicable charges and to institute new charges and Fees which will not take effect until the expiration of the Initial Term or any Renewal Term, upon sixty (60) days prior notice to Customer (which may be sent by email). Customer agrees to provide Grin notice of any good faith invoice dispute no later than thirty (30) days after receipt, with all supporting information.

8.2 All Fees and Charges are Exclusive of Taxes.  Customer agrees to be responsible for the payment of all Taxes related to the Services.  To the extent Grin is required to collect any Taxes, Grin shall separately state the amount of tax due on its invoices to Customer and such invoices will include either Grin’s sales tax or use tax permit number.  “Tax” or “Taxes” means any sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of this Agreement. For the avoidance of doubt, each Party agrees to be responsible for its own income, unemployment, social security, and other payroll or wage taxes.

8.3 Third Party Payment Processing. If Customer, in its sole discretion, elects to pay Creators (or other third parties) through the Platform, Customer shall pay all applicable Creator fees to Grin by depositing a corresponding amount of funds in Customer’s dedicated funds account used for the purpose of issuance of payments to Creators (“Creator Funds Account”), and, upon payment by Customer to Grin of all Creator fees and payment initiation by Customer, Grin shall cause such Creator to be paid within fifteen (15) days thereafter.  Grin shall not be obligated to pay any Creator in advance of receiving all necessary funds from Customer. As of the Effective Date, processing fees for Customer fund deposits are three percent (3%) for credit card payments and a $50 flat fee for wire transfer, provided that such transaction fees are subject to change by Grin upon thirty (30) days’ prior written notice to Customer. No processing fee is charged for Creator Funds Account deposits via ACH transfer.  Customer may maintain a balance in Customer’s funds account with Grin for the payment to Creators, in which case payments to Creators shall be made within fifteen (15) days following Grin’s notice via the Platform of completion of such Creator services on behalf of Customer.  Any unused funds in the Creator Funds Account will be returned within ten (10) business days of written request by Customer including Customer ACH information; Grin may charge a $50 processing fee in connection with any such return of Customer funds.

9. FORM 1099-MISC COMPLIANCE

To the extent Customer elects in its sole discretion to pay Creators or other service providers through the Platform, Grin shall be responsible for issuing the Form 1099-Misc to such service providers who are located in the United States and who have been paid at least $600 through the Services.  Upon written request by Customer no more than once per calendar year, Grin shall promptly notify Customer of the amount of fees that are included Forms 1099-Misc issued by Grin to service providers that represent payments for services provided to the Customer.

10. TERM AND TERMINATION

10.1 Agreement Term.  Subject to earlier termination as provided in Section 10.4 below, this Agreement is effective as of the Effective Date and ends on the date of termination or expiration of the final Subscription Term.  

10.2 Order Form Term.  Customer’s initial Subscription Term as set forth in the applicable Order Form (“Initial Term”) is twelve (12) months, which begins on the Effective Date and ends on the first anniversary of the Effective Date, unless the Order Form specifies a different term period. 

10.3 Automatic Renewal.  At the end of each Subscription Term, the subscription shall automatically renew for an additional twelve (12) month period (each a “Renewal Term”) unless either Party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-existing Subscription Term

10.4 Termination for Breach.  Either Party may terminate this Agreement where the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice. In the event Customer terminates this Agreement pursuant to this Section 10.4, Customer will pay all Fees and charges incurred prior to the date of termination, provided that, Grin will refund Customer a pro-rata portion of any prepaid Fees for the remainder of the applicable Term after the effective date of such termination.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

11. WARRANTIES AND DISCLAIMERS

11.1 Mutual Warranties. Each Party represents and warrants that:

(i)   it is a business entity duly organized and validly existing under the laws of the jurisdiction in which it is organized;

(ii)  the individual signing below it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and obligate Customer to perform its obligations hereunder;

(iii)  this Agreement is legally binding upon it and enforceable in accordance with its terms;

(iv) it shall comply with all applicable laws in connection with its performance hereunder (including laws relating to personal and health information and privacy); and

(v) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.  

11.2 Grin Warranties. 

(I) Conformity with Documentation: Grin warrants that the Services will perform substantially in accordance with the applicable Documentation when used in accordance with this Agreement for the Subscription Term. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Services has resulted from installation, deployment, use, maintenance, or support not in accordance with this Agreement or the Documentation, modification by Customer, a User, or a third party not authorized by Grin, force majeure, or any breach of this Agreement by Customer or a User. In the event of a Services warranty claim, Customer’s sole and exclusive remedy and Grin’s entire obligation and liability shall be, at Grin’s sole option, to either (i) provide a correction, update or upgrade of the Services, (ii) correct or replace the Services, or (iii) refund Customer a pro-rated amount of the applicable Fees pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination and terminate this Agreement. All warranty claims must be made to Grin in writing within such warranty period. 

(II) Malicious Code: Grin warrants that the Services are regularly tested for all known software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”). As of the Effective Date, the Services do not contain Malicious Code. 

11.3 Disclaimer. EXCEPT TO THE EXTENT SET FORTH IN THIS SECTION 11, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND SUPPORT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, GRIN EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. GRIN MAKES NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. 

11.4 No legal advice. GRIN IS NOT A LAW FIRM AND IS NOT REGULATED AS ONE. GRIN’S EMPLOYEES ARE NOT OUR USERS’ LAWYERS AND DO NOT GIVE LEGAL ADVICE NOR PURPORT TO GIVE LEGAL ADVICE ON WHICH USER OR ANY OTHER PERSON CONNECTED TO USER THROUGH PROFESSIONAL OR PERSONAL RELATIONSHIPS CAN RELY. ANY INFORMATION ON CREATOR-MARKETING TERMS, LICENSES FOR USER-GENERATED CONTENT, AND BEST PRACTICES IN NEGOTIATING WITH CREATORS IS FOR GENERAL INFORMATION PURPOSES ONLY AND MAY NOT BE RELIED UPON AS LEGAL ADVICE. USE OF GRIN’S PRODUCTS AND SERVICES DOES NOT CREATE AN  ATTORNEY-CLIENT RELATIONSHIP. AI FEATURES EMBEDDED IN GRIN’S PRODUCTS AND SERVICES MAY PRODUCE INCORRECT AI OUTPUT THAT DOES NOT ACCURATELY REFLECT REAL PEOPLE, PLACES, FACTS, OR LAWS (INCLUDING LEGAL AUTHORITIES). EACH USER MUST USE HUMAN REVIEW TO IDENTIFY AND CORRECT ERRORS IN THE AI OUTPUT, INCLUDING IN CREATOR-CONTRACT TERMS, TEMPLATES, OR CONTRACTS GENERATED USING GRIN’S SERVICES, BEFORE USING OR RELYING ON THE AI OUTPUT FOR ANY PURPOSE. EACH USER IS OBLIGATED TO REVIEW EACH CONTRACT GENERATED FOR ACCURACY. GRIN IS NOT RESPONSIBLE FOR ANY ERROR IN THE CONTENT OF ANY CONTRACT(S) GENERATED USING GRIN’S SERVICES. GRIN WILL NOT BE LIABLE FOR ANY ALLEGED LOSS ARISING FROM ANY ERROR IN THE CONTENT OF ANY CONTRACT(S) GENERATED USING GRIN’S SERVICES. 

12. LIMITATION OF LIABILITY

12.1 LIMITATION OF LIABILITY.  Except for (i) each Party’s indemnity obligations under Section 13 (Indemnification), or gross negligence, willful misconduct, or fraud, and (ii) Customer’s obligations to pay Fees,

(a) EACH PARTY’S LIABILITY FOR ALL CLAIMS OR LOSSES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO GRIN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES; and

(b)  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR GRIN’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, GRIN’S MAXIMUM LIABILITY FOR ANY CLAIMS, LOSSES OR OTHER LIABILITY RELATED TO THE UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA SHALL NOT EXCEED $1,000,000 USD.

13. INDEMNIFICATION

13.1 General Indemnity.  To the fullest extent allowed by applicable law, a Party (the “Indemnitor”) shall defend the other Party, its Affiliates, and its and their officers, directors, agents and employees (collectively, the “Indemnified Party) against any and all claims, demands, suits, or actions by a third party (“Claims”), and shall release, indemnify, and hold harmless the Indemnified Party for and from any and all liabilities, obligations, losses, damages, deficiencies, penalties, levies, fines, judgments, settlements, costs and expenses, including interest, litigation costs, and reasonable attorney’s fees resulting from such Claims (“Losses”), to the extent such Claims or Losses arise out of or result from the (i) fraud or willful misconduct of Indemnitor or any Affiliate, or their officers, directors, agents or employees, or (ii) material breach of this Agreement by Indemnitor, or any Affiliate, or their officers, directors, agents or employees. Losses may include, but are not limited to, injury to or death of any person, or damage to or destruction of any property, real or personal.  

13.2 Grin IP Infringement Indemnification. Grin shall defend Customer and its Affiliates against any Claim that the Services infringe any patent, trademark, copyright or other intellectual property rights of the third party (the “Infringing IP”) and shall release, indemnify and hold harmless Customer and its Affiliates for and from all resulting Losses.  Regarding any Infringing IP Claim, Grin shall, at Grin’s option after consulting with Customer (in each case, without any cost or expense to Customer), either: (i) procure the right for Customer to continue to use the Infringing IP; (ii) modify or replace the Infringing IP so that it is no longer infringing, provided however that such modification or replacement shall not degrade the functionality, operation or performance of the Services; or (iii) if subsections (i) and (ii) are deemed commercially unreasonable by Grin in its sole discretion, Customer shall have the option to terminate this Agreement and receive a pro rata refund of pre-paid Fees.  This Section 13.2 shall not apply to the extent that the Infringing IP arises from (x) Customer's modification of the Infringing IP or use thereof in a manner not contemplated by this Agreement, (y) the failure of Customer to use any reasonable corrections or modifications to Infringing IP made available by Grin (provided use of such corrections or modifications does not materially degrade the Service, or (z) the use of Infringing IP in combination with any product or data not provided by Grin.

13.3 Indemnification Procedure.  The Indemnified Party shall promptly give the Indemnitor notice of any Claim or Loss asserted by a third party for which the Indemnified Party seeks indemnity under this Section 13 (each a “Third Party Claim”).  The Indemnitor shall have reasonable control over the defense and settlement of Third Party Claims; provided however, that the Indemnitor shall not enter into any Claim settlement requiring payment of money or other affirmative act (or inaction) by the Indemnified Party without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.

14. MISCELLANEOUS

14.1 Publicity.  Grin may use in advertising, publicity or marketing communications the name and logo of Customer. Grin agrees that any such use shall be subject to Grin complying with any written guidelines that Customer may deliver to Grin regarding the use of its name or logo. Customer may revoke the foregoing use right at any time upon written notice to Grin.

14.2 Successors and Assigns; No Third Party Beneficiaries.  This Agreement is legally binding upon and inures to the benefit of the Parties and their permitted successors and assigns.  There are no third party beneficiaries under or intended to benefit from, nor may any third party seek to enforce, any of the terms of this Agreement.

14.3 Relationship of the Parties.  Grin is furnishing the Services as an independent contractor. Nothing contained in this Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the Parties, or to grant either Party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other Party.

14.4 Complete Agreement.  This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty, or agreement by or from the other Party except for those expressly contained in this Agreement.

14.5 Modification.  The terms of this Agreement may not be modified or amended other than by a writing executed by both Parties by their duly authorized representatives.

14.6 Counterparts.  This Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitutes a single enforceable agreement.

14.7 Notice. 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.

901 H St Ste 120, Sacramento, CA 95814

With copy to:  legal@grin.co

Notices to Customer shall be sent to the email address set forth on the applicable Order Form, during Customer’s registration for the Services or to an updated email address provided by Customer for notice purposes, unless a mailing address was otherwise previously specified in writing by Customer for notice purposes.  

14.8 Insurance. Grin agrees to have in force for the Term the following policies of insurance issued by insurers with an A.M. Best Rating of A- VII or better: (i) General Liability with per occurrence and aggregate limits of at least $1 million / $2 million; (ii) Workers’ Compensation insurance at least to the applicable statutory limits; (iii) Errors & Omissions insurance with per occurrence and aggregate limits at least $1 million / $2 million; (iv) Technology Professional Liability/Cyberliability insurance with per occurrence and aggregate limits of at least $1 million / $5 million.

14.9 Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the state of California, without regard to its principles of choice of law. A Party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in Sacramento, California. Each of Customer and Grin hereby expressly and irrevocably submits to the personal jurisdiction of such courts for the purposes of any such action. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to the Parties’ rights or obligations under this Agreement.

14.10 Assignment. 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.  

14.11 Savings Clause; Waiver. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable. Any delay by a Party in exercising its rights hereunder shall not constitute a waiver of its rights or its entitlement to enforce any provision of this Agreement.

14.12 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement as a result of natural disasters, actions or decrees of governmental bodies, communication line failures not the fault of the affected Party, civil disturbances, extreme weather conditions, war, invasions, military or usurped power, sabotage, epidemics or pandemics, fires or other casualty, acts of God, or any other delay or failure which arises from causes beyond a Party’s reasonable control (hereafter referred to as a “Force Majeure Event”), the Party whose performance has been so affected shall immediately give notice to the other Party and shall do everything reasonably possible to resume performance.  Upon receipt of such notice, those obligations that cannot be performed through commercially reasonable diligence shall be suspended.  If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement.

14.13 Remedies. Unless otherwise specified in this Agreement, each Party’s rights and remedies (including but not limited to termination) are cumulative and not exclusive, are in addition to any other rights and remedies provided at law, in equity, or under this Agreement, and may be pursued separately or concurrently as such Party determines. Termination of this Agreement will not relieve any party from any liability for any obligation or breach of this Agreement occurring prior to termination.