End User Access Agreement

Last Modified: March 1, 2019

PLEASE READ THIS END USER ACCESS AGREEMENT CAREFULLY.

This document constitutes a contract between you (the User) and BGI and its affiliates and governs your Use of BGI Software. By clicking the acceptance button or accessing or using any part of the service contemplated by this agreement, User expressly agrees to and consents to be bound by the terms and conditions of this agreement. If User does not agree to the terms and conditions of this agreement, then user may not access or use any part of the service.

1. Background
2. Definitions
3. Acceptance of Terms
4. Access and Use
5. Ownership
6. Limitations or Restrictions
7. Assumption of Risk, Limited Warranty and Disclaimer
8. Indemnification, Limitations and Exclusions of Liability
9. Term and Termination
10. Transferability
11. US Government End Users
12. Export
13. Survival
14. Governing Law, Jurisdiction, Venue and Waiver of Jury Trial
15. Integration

***CURRENTLY HIDDEN***

Last Modified: March 1, 2019

PLEASE READ THIS END USER ACCESS AGREEMENT CAREFULLY.

This document constitutes a contract between you (the User) and BGI and its affiliates and governs your Use of BGI Software. By clicking the acceptance button or accessing or using any part of the service contemplated by this agreement, User expressly agrees to and consents to be bound by the terms and conditions of this agreement. If User does not agree to the terms and conditions of this agreement, then user may not access or use any part of the service.

We periodically update these terms. You can find archived versions of the terms here.

1. Background
2. Definitions
3. Acceptance of Terms
4. Access and Use
5. Ownership
6. Limitations or Restrictions
7. Assumption of Risk, Limited Warranty and Disclaimer
8. Indemnification, Limitations and Exclusions of Liability
9. Term and Termination
10. Transferability
11. US Government End Users
12. Export
13. Survival
14. Governing Law, Jurisdiction, Venue and Waiver of Jury Trial
15. Integration

1. Background

a. BGI has provided this online Growth Group Software (“Growth Group Software”) as a service to the User as part of the BGI Contract between BGI and our Customer. The Growth Group Software allows any company that uses it (our customers, resellers, distributors and BGI itself) to create self-facilitated peer advisory groups. BGI provides the Subscription Service to our Customers for their own peer advisory group formation and communication needs. Our Customers use the Growth Group Software to create peer advisory groups within a community of Users that is related to their company such as employees, customers, service providers, members, alumni and/or associates.

2. Definitions

a. “Approved Source” means any BGI Customer or BGI itself.

b. “Contract” means a legally binding agreement established between BGI and a Customer that references a Terms of Service, Privacy Policy and Product Disclosures (see https://gogrowthgroups.com/legal).

c. “Customer” means (i) the BGI authorized reseller, distributor or systems integrator, or (ii) the BGI Customer from whom You acquired access to the Software.

d. “Documentation” means the BGI user or technical manuals, training materials, specifications or other documentation applicable to the Software and made available to You by an Approved Source.

e. “Software” means the BGI computer programs and any Upgrades made available to You by an Approved Source and accessed by the User.

f. “Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software and backup copies thereof.

g. “Use” or “Using” means to activate, access or otherwise use the Software.

h. “Us”, “We”, “BGI” and “Our” means the legal entity providing access to the Software to the User under this EUAA.

i. “User”, “You” and “Your” means the individual or legal entity accessing the Software under this EUAA.

3. Acceptance of Terms

a. By Using the Software, You agree to be bound by the terms of the EUAA. If you are entering into this EUAA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EUAA, neither you nor the entity may Use the Software.

b. By Using this Software, You agree that you have reviewed and agree to the BGI Privacy Policy (https://gogrowthgroups.com/legal/privacy_policy). If you do not agree to the terms of the Privacy Policy, you may not Use the Software.

4. Access and Use

a. Subject to payment of the applicable fees and compliance with this EUAA by the Approved Source, BGI grants You access to Use the Software and the Documentation to Use the Software and the Documentation solely for Your internal operations and in accordance with the Contract established with our Customer and the Documentation.

b. You are granted the right to Use only the Software You acquire from an Approved Source.

c. BGI does NOT grant any license to You.

d. If the Contract with our Customer is for a specified term, Your access is valid solely for the applicable term in the Contract. Your right to Use the Software begins on the date the Software is made available to Users associated with our Customer and continues until the end of the specified term, unless otherwise terminated in accordance with this Agreement.

e. User may use the Growth Group Software only as expressly provided in, or contemplated by, this Agreement and the Contract with the Approved Source. User shall not use the Growth Group Software in any way that violates any applicable law, rule, or regulation.

f. User shall be solely responsible for providing, maintaining, and ensuring compatibility with the Growth Group Software, all hardware, software, electrical, and other physical requirements for User’s use of the Growth Group Software, including, without limitation, telecommunications and internet access connections and links, web browsers, or other equipment, programs, and services required to access and use the Growth Group Software.

5. Ownership

a. BGI retains ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Your rights to Use the Software are limited to those expressly granted by this EUAA. No other rights with respect to the Software or any related intellectual property rights are granted or implied.

6. Limitations or Restrictions

a. You will not and will not allow a third party to:
i. Transfer or assign Your rights under this Agreement to any other person or entity, unless expressly authorized by BGI in writing;

ii. modify, adapt or create derivative works of the Software or Documentation;

iii. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;

iv. make the functionality of the Software available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis unless expressly authorized by BGI in writing;

v. Use Software that is authorized for a specific device, whether physical or virtual, on another device, unless expressly authorized by BGI in writing;

vi. remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software;

7. Assumption of Risk, Limited Warranty and Disclaimer

a. Assumption of Risk
i. User expressly agrees that use of the Growth Group software is at User’s own risk.

b. Limited Warranty
i. BGI warrants that the Software will substantially conform to the applicable Documentation for the longer of (i) ninety (90) days following the date the Software is made available to You. This warranty does not apply if the Software, BGI product or any other equipment upon which the Software is authorized to be used: (i) has been altered, except by BGI or its authorized representative, (ii) has not been maintained in accordance with instructions supplied by BGI, (iii) is made available for beta, evaluation, testing or demonstration purposes or other circumstances for which the Approved Source does not receive a payment of a purchase price; or (iv) has not been provided by an Approved Source. BGI will use commercially reasonable efforts to deliver to You Software free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the Software or Your data.

c. Disclaimer
i. Except as expressly set forth above, BGI provides Software “as is” and expressly disclaim all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. BGI does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, BGI does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.

8. Indemnification, Limitations and Exclusions of Liability

a. User agrees to indemnify and hold harmless BGI and the BGI Affiliates from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) User’s access to or use of the Growth Group Software; (ii) any actual or alleged violation or breach of any representation, warranty, or covenant that User has made; or (iii) User’s acts or omissions. User agrees to fully cooperate with BGI in the defense of any claim that is the subject of Users obligations hereunder.

b. In no event will BGI be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if a party been advised of the possibility of such damages: (i) indirect, incidental, exemplary, special or consequential damages; (ii) loss or corruption of data or interrupted or loss of business; or (iii) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of BGI, its affiliates, officers, directors, employees, agents, suppliers collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the fees paid by the Approved Source for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.

9. Term and Termination

a. This EUAA shall remain effective until terminated or until the expiration of the Contract in place between BGI and the Customer. You may terminate the EUAA at any time by ceasing use of Software. This EUAA will immediately terminate if You breach its terms, or if Customer fails to pay any portion of the applicable Contract fees.

10. Transferability

a. You may not transfer or assign these rights to another person or entity. Any attempted transfer or, assignment shall be void and of no effect.

11. US Government End Users

a. The Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EUAA may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this EUAA. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

12. Export

a. BGI Software, products, technology and services are subject to local and extraterritorial export control laws and regulations. You and BGI each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses.

13. Survival

a. Sections 5, 6, the warranty limitation in 7(a), 7(b), 8, 9, 11, 12, 13, 14 and 15 shall survive termination or expiration of this EUAA.

14. Governing Law, Jurisdiction, Venue And Waiver Of Jury Trial

a. BGI currently does business only with Customers physically located in the United States. Subsequently, our Customers are contracting with BGI and this Agreement is governed by the laws of the state of Missouri, U.S.A. without reference to conflicts of law principles. All parties consent to the exclusive jurisdiction and venue of the courts in St. Louis, Missouri, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.

b. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

15. Integration

a. If any portion of this EUAA is found to be void or unenforceable, the remaining provisions of the EUAA shall remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the EUAA constitutes the entire agreement between the parties with respect to the license of the Software and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.