Last updated March 30, 2022.
These WSCinME Terms of Service, along with any applicable Subscription and Cancellation terms (collectively “Terms”) govern your use of our websites, customer support, services, mobile/web/desktop/home applications, source code, executables, and related documentation (collectively “Software”).
If you have entered into another agreement with us concerning specific Services or Software, then the terms of that agreement control where it conflicts with the Terms.
Background
OneHat Technologies LLC (hereinafter, “Vendor”) with its principal address at 1218 E F St, Moscow, ID 83843 is in the business of developing software.
Any party using the WSCinME software (hereinafter, “Customer”) desires that Vendor make such software available to Customer under this Terms of Service. Each order taken on an Order Form whether in writing or through an online form on our website will be performed under these Terms.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
As used in this Agreement and in orders taken on an Order Form in writing, or through an online form on our website, the following terms shall have the following meaning:
“Agreement” means these Terms of Service, any Order or Authorization Forms, any Rate Freeze Agreements, whether written or submitted online, and any materials available on the Vendor website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Vendor from time to time in its sole discretion.
“Content” means the audio and visual information, documents, software, products, and services contained or made available to Customer in the course of using the Service.
“Customer Data” means any data, information, or material provided or submitted by Customer or its clients to the Service in the course of using the Service.
“Effective Date” means the earlier of either the Start Date listed on the Order Form or the date Customer begins using the Service.
“Initial Term” means the initial period during which Customer is obligated to pay for the Service equal to one month, or as otherwise mutually agreed upon in a Rate Freeze Agreement, commencing on the Effective Date.
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Administrator(s)” means those Users designated by Customer who are authorized to purchase licenses, create User accounts, and otherwise administer Customer’s use of the Service.
“License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s).
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
“Vendor Technology” means all of Vendor’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Vendor in providing the Service.
“Service(s)” means the online web app(s), mobile app(s), home apps(s), billing, data analysis, or other services identified during the ordering process, developed, operated, and/or maintained by Vendor, accessible via https://growme.coach or https://growme.app, or ancillary online or offline products and services provided to Customer by Vendor, to which Customer are being granted access under this Agreement, including the Vendor Technology and the Content.
“User(s)” means Customer employees, clients, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Vendor at Customer’s request).
2. License Grant and Restrictions
Our Services and Software are licensed, not sold, to Customer.
Vendor hereby grants Customer a nonexclusive, nontransferable, worldwide right to use the Service, solely for Customer’s own internal business purposes, subject to the Terms of this Agreement. All rights not expressly granted to Customer are reserved by Vendor and its licensors.
Customer may not access the Service if Customer is a direct competitor of Vendor, except with Vendor’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Customer licenses cannot be shared or used by more than one corporate entity.
Customer shall not allow sharing of user accounts among multiple people. Each person using the Software must have his or her own user account.
Customer may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Customer Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (i) notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Vendor immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer Users; and (iii) not impersonate another Vendor customer or provide false identity information to gain access to or use the Service.
4. Account Information and Data
Vendor does not own any Customer Data. Customer, not Vendor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), Vendor will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Vendor reserves the right to withhold, remove, and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Vendor shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
Vendor (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Vendor Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Vendor Technology or the Intellectual Property Rights owned by Vendor. Vendor’s name, Vendor’s logo, and the product names associated with the Service are trademarks of Vendor or third parties, and no right or license is granted to use them.
6. Charges and Payment of Fees
Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the Setup Fee currently in effect. Monthly charges will be equal to the Subscription Fee currently in effect.
All payment obligations are non-cancelable and all amounts paid are nonrefundable. Customer is responsible for paying for all Setup Fees and Subscription Fees ordered for the entire License Term, whether or not the Services are actively used. Customer must provide Vendor with valid credit card or ACH information as a condition to signing up for the Service.
7. Billing and Renewal
Vendor charges and collects Setup Fees in advance of the Services being provided.
Vendor charges and collects Subscription Fees on a monthly basis for Services already rendered. Invoices will be automatically sent out on the first of each month, for Services rendered in the previous month. Invoice amounts will reflect the pricing tier of the number of coaches in the system on the last day of the previous month. Automatic payments will be processed on the tenth of each month. Vendor will provide Customer at least 30 days prior written notice of any increases to the subscription fee rates for all tiers.
Fees for other services will be charged on an as-quoted basis.
If Customer believes its bill is incorrect, Customer must contact Vendor in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Vendor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Vendor’s income.
Customer agrees to provide Vendor with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Vendor reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
8. Nonpayment and Suspension
In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent. Delinquent invoices and accounts are subject to interest of 1.0 percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for Initial Setup and monthly Subscription fees during any period of suspension. If Customer or Vendor initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with Section 8 above. Customer agrees that Vendor may bill Customer for such unpaid fees.
Vendor reserves the right to impose a Reconnection fee in the event Customer is suspended and thereafter requests restored access to the Service. Customer agrees and acknowledges that Vendor has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more past due.
9. Termination
This Agreement commences on the Effective Date. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive terms at Vendor’s then-current fees.
Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the term. If customer submits a “Cancel Subscription” request through Vendor’s online support portal (https://support.growme.app/), this shall constitute notification in writing.
In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.
In the event this Agreement is terminated (other than by reason of Customer’s breach), Vendor will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
10. Termination for Cause
Any breach of Customer’s payment obligations or unauthorized use of the Vendor Technology or Service will be deemed a material breach of this Agreement. Vendor, in its sole discretion, may terminate Customer’s password, account or use of the Service if Customer breaches or otherwise fails to comply with this Agreement. In addition, Vendor may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
11. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that Customer has not falsely identified Customer nor provided any false information to gain access to the Service and that Customer’s billing information is correct.
12. Mutual Indemnification
Customer shall indemnify and hold Vendor, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; or (iii) a claim arising from the breach by Customer or Customer Users of this Agreement, provided in any such case that Vendor (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Vendor of all liability and such settlement does not affect Vendor’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
Vendor shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Vendor of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Vendor; provided that Customer (a) promptly give written notice of the claim to Vendor; (b) give Vendor sole control of the defense and settlement of the claim (provided that Vendor may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Vendor all available information and assistance; and (d) have not compromised or settled such claim. Vendor shall have no indemnification obligation, and Customer shall indemnify Vendor pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer products, service, hardware or business process(s).
13. Disclaimer of Warranties
VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. VENDOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VENDOR AND ITS LICENSORS.
14. Internet Delays
VENDOR’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply to Customer.
17. Local Laws and Export Control
Vendor provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer acknowledges and agrees that the software and Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or 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 (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The software and Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Vendor and its licensors make no representation that the Service is appropriate or available for use in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to U.S., Swiss, or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.
18. Notice
Vendor may give notice by means of a general notice on the Service, email to Customer address on record in Vendor’s account information, or by written communication sent by first class mail or pre-paid post to Customer address on record in Vendor’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Vendor (such notice shall be deemed given when received by Vendor) at any time by email to info@growme.coach.
19. Modification to Terms
Vendor reserves the right to modify the Terms of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer’s consent to such changes.
20. Assignment; Change in Control
This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned without Customer’s consent by Vendor to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Vendor directly or indirectly owning or controlling 50 percent or more of Customer shall entitle Vendor to terminate this Agreement for cause immediately upon written notice.
21. General
This Agreement shall be governed by Moscow, Idaho law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Moscow, Idaho.
No text or information set forth on any other purchase order, preprinted form, or document (other than an Order Form, if applicable) shall add to or vary the Terms of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this agreement or use of the Service. The failure of Vendor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.