These Platform Terms of Use (together with the Growth Channel Privacy Policy and any other policies, addenda and notices made available to you, collectively, the "Agreement") govern your (referred to throughout as the "Company") relationship with Growth Channel Inc. ("Growth Channel") relating to the Platform (as defined below) offered by Growth Channel on the Growth Channel web site (the "Site") or on any Growth Channel mobile application (the "App") owned and operated by Growth Channel (including but not limited to GrowthChannel.com and any and all web sites or mobile applications now or hereafter owned or operated by Growth Channel). The date on which you first log into your Account (as defined below) is hereinafter referred to as the "Effective Date".
Please read these Platform Terms of Use carefully and be sure you fully understand the terms and conditions. The Agreement constitutes a binding legal agreement between you and Growth Channel Inc.
Your use of the Platform constitutes your agreement to all such terms, conditions, and notices in effect at such time. You hereby represent and warrant that (i) you are lawfully able to enter into and perform a legally binding contract, (ii) if you are entering the Agreement on behalf of your employer and you are authorized to do so, and (iii) agree to be bound by the Agreement. Please retain a copy of the Agreement for your records.
You should also read the Growth Channel Privacy Policy, which is incorporated by reference into the Agreement and available on the Site. If you do not accept and agree to be bound by all of the terms of the Agreement, including the Growth Channel Privacy Policy, do not access the Platform through the Site or use the Platform.
Growth Channel may update or revise the Agreement (including the Growth Channel Privacy Policy, any other policies, addenda and notices made available relating to the Platform) from time to time. You agree that you will review the Agreement periodically. You are free to decide whether or not to accept a modified version of the Agreement, but accepting the Agreement, as modified, is required for you to continue using the Platform.
You may have to click "accept" or "agree" to show your acceptance of any modified version of the Agreement. If you do not agree to the terms of the Agreement or any modified version of the Agreement, your sole recourse is to terminate your use of the Platform, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Growth Channel any use of the Platform is subject to the version of the Agreement in effect at the time of use.
Growth Channel offers an advertising internet-accessible platform and associated services (the "Platform") that allows Company to buy, track and manage digital media ("Media") for the purposes of delivering Company's native, display, video, audio, Connected TV, in-game and DOOH advertisements ("Ads"). Based on Company's specified attributes, the Platform utilizes Growth Channel's proprietary technology to bid on Media on Company's behalf, and offers manual and automated methods for meeting Company's advertising objectives. All Ads are subject to Growth Channel's review and approval. Growth Channel, may, in its sole discretion, decide not to deliver an Ad that it deems to be of poor technical quality, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable.
2.1 Right to Use
Subject to the terms and conditions of the Agreement, including the payment of the applicable fees, commencing as of the Effective Date and for the duration of the Term (as defined below), Growth Channel hereby grants to Company a non-exclusive, non-transferable, revocable right to access and utilize the Platform in accordance with the terms of the Agreement, including on behalf of Company's clients.
2.2 Restrictions on Use
Any rights not granted herein are strictly reserved by Growth Channel. Company shall not, and shall not permit anyone to:
use the Platform, except in connection with performance of the Agreement;
re-license or sublicense, lease, loan or otherwise distribute the Platform to any third-party;
operate a service bureau that utilizes the Platform;
reverse engineer, decompile, disassemble or translate any software used by Growth Channel to deliver the Platform (the "Software"), or otherwise attempt to view, display or print the Software's source code;
remove, modify or obscure any copyright, trade-mark or other proprietary notices contained in the Software.
2.3 Reservation of Rights
Growth Channel shall retain ownership of all intellectual property rights associated with the Platform, all ancillary documentation and technology associated therewith, and any enhancements or modifications thereof. Neither party shall use the trademarks or trade names of the other without express consent.
2.4 Audit Rights
Growth Channel reserves the right to monitor and audit Company and its authorized users' usage of the Platform for the purpose of (among others) ensuring compliance with the terms of the Agreement. Any such audit may be carried out by Growth Channel or a third-party authorised by Growth Channel, at Growth Channel's expense.
2.5 Accounts
In order to use the Platform, Company must create an account (an "Account") and sign in using a corporate email address. Company will be allowed to create one or more administrator accounts (each an "Admin Account") for one or more designated administrators (each an "Administrator") to access the Platform. After initial registration, an Administrator may assign additional user access to other Company employees, directors, officers, contractors or agents (collectively, the "Representatives"). Growth Channel is not responsible for dissemination of additional user access, as all requests for additional user access must be routed to a designated Administrator.
2.6 Security
Growth Channel implements and maintains industry standard safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the Platform and Company's Ads. Company acknowledges and agrees that notwithstanding the security measures, such methods and procedures may not prevent unauthorized electronic intruders from accessing the Platform through the Internet or through other forms of electronic communication. Except for the maintenance of industry standard safeguards, which are designed to frustrate access from unauthorized electronic intruders, Growth Channel shall not be liable and disclaims responsibility to Company with respect to any action by any unauthorized electronic intruder.
2.7 Maintenance
From time to time, it will be necessary for Growth Channel to perform maintenance on its system. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of Growth Channel's system or upgrading, updating or enhancing its system. Growth Channel shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of its system to Company. To the extent Growth Channel is able, Growth Channel shall notify Company in advance of any scheduled maintenance by posting a message on its website or by sending an email to the designated Company representative of the scheduled maintenance time and the anticipated duration of such maintenance.
3.1 Company's Responsibilities
In addition to its other obligations contained in the Agreement, Company shall:
be responsible for operating, supporting and maintaining Company's systems, including computer hardware and software, necessary for Company to access the Platform;
be responsible for procuring and maintaining communication Platforms, including high speed Internet connections between Company's systems and Growth Channel's system;
assign, record and control the issuance and use of all authorized users;
use the Platform only in accordance with the terms of the Agreement;
comply, at all times, with all applicable legal and regulatory requirements and with Growth Channel's policies in respect of the use of the Platform and Ads delivered or served through the Platform, including without limitation:
ensuring that neither Company nor any entity of individual who owns, holds or controls (directly or indirectly) 25 percent or more of Company is listed or designated under the international economic sanctions adopted under applicable laws; and
ensuring that no dealings with Company are prohibited or restricted under applicable laws regarding human trafficking, modern slavery or anti-money laundering and terrorist financing; and
ensure that all Ads approved by Company for use with the Platform comply with all applicable legal and regulatory requirements.
3.2 Company's Negative Covenants
Company shall not:
use the Platform for improper or unlawful purposes;
take any action that imposes an unreasonable or disproportionately large load on Growth Channel's system;
use the Platform or the software to develop any derivative works or any functionally compatible or competitive software; or
copy or download any software used by Growth Channel to provide the Platform and which is contained within Growth Channel's system.
In the case of data which may be provided by or provisioned through Growth Channel, Company shall not:
resell, rent, lease, sublicense, or transfer such data to any third-party;
use such data in any manner except for marketing purposes and the delivery of online advertisements; or
merge or combine such data with personally identifiable information.
3.3 Representations and Warranties of Company
In addition, Company represents, warrants and covenants that:
Ads delivered or served through the Platform will not include any materials or links to materials that:
are unlawful, harmful, spam, threatening, harassing, tortious, defamatory, vulgar, obscene, invasive of another's privacy, hateful, discriminatory, prejudiced or otherwise objectionable; or
infringe or misappropriate the patents, copyrights, trademarks, trade secrets or other intellectual property rights of any person; and
none of the Ads will contain any viruses, Trojan horses, worms or other disabling devices or harmful components intended to damage, detrimentally interfere with, intercept, or expropriate any system.
3.4 Ownership of and License to Use Ads
Company shall retain ownership of all intellectual property rights to the Ads and any ancillary advertising materials provided to Growth Channel. Company hereby grants to Growth Channel the right and license to promote and market its Ads through the Platform. Company hereby authorizes and grants to Growth Channel a license to use Company's Ads and any of Company's trademarks, trade names, service marks, logos, character names, and other intellectual property provided by Company in connection with Company's use of the Platform.
3.5 Ownership of Ads Created by Growth Channel
Growth Channel assigns to Company ownership of all intellectual property rights to any Ads that may be created by Growth Channel on Company's instructions. Company hereby grants to Growth Channel the right and license to promote and market these Ads through the Platform. Company hereby authorizes and grants to Growth Channel a license to use these Ads and any of Company's trademarks, trade names, service marks, logos, character names, and other intellectual property provided by Company in connection with Company's use of the Platform.
4.1 Fees
Company shall pay Growth Channel all fees, amounts and charges in relation to the cost of all Media purchased by the Company through the Platform (the "Fees"). The Fees do not include applicable taxes. Fees are in the currency specified by the Company in the Company's Account.
4.2 Invoices
If Company and Growth Channel have executed a Prompt Payment Agreement (a "PPA") pursuant to which Company has been approved by Growth Channel for a credit limit and monthly billing, Growth Channel shall send Company monthly invoices detailing Company's advertising campaign activities and amounts due for the previous month's advertising campaigns in accordance with Growth Channel's invoice terms set forth on the invoice. Growth Channel analytics system shall be the sole basis of measurement for the purpose of determining the Fees. All invoices will be considered accepted by Company unless Company notifies Growth Channel to the contrary in writing within 15 days after delivery of the applicable invoice. If Company has not entered into a PPA, Growth Channel will not provide a monthly invoice unless requested by Company.
4.3 Payment
Unless the Company has entered into a PPA, Company shall pay the Fees either:
with the credit card associated with Company's Growth Channel account and the Fees will be charged to Company's credit card at pre-determined amounts mutually agreed upon by Growth Channel and Company; or
by making a pre-payment of Fees which Growth Channel may apply to Company's media purchases, which pre-payment shall be promptly refunded by Growth Channel upon the request of the Company after payment of any outstanding Fees.
4.4 Currency
All currency rates are in the United States dollar currencies.
4.5 Taxes
Company shall pay any and all taxes, fees and duties that are paid or payable as a result of or otherwise in connection with the transactions contemplated in the Agreement including federal, provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof (collectively "taxes"), except for any taxes based on Growth Channel's net income and certain non-value add taxes based on Growth Channel's gross receipts.
Fees do not include any taxes which are or may be imposed by law on Growth Channel, Company or their affiliate, irrespective of whether Growth Channel needs to collect said taxes or Company is required to account for said taxes and remit them, by any taxing authority or jurisdiction occasioned by, relating to or as a result of the execution of the Agreement or any other matter, good or service provided for under or in connection with the Agreement.
4.6 Interest on Late Payments
Where Company fails to pay any amount in accordance with the Agreement, Growth Channel shall have the right, in addition to any other rights or remedies available to it, to charge, and Company shall pay, interest on such overdue amounts at the rate of one percent (1%) per month calculated daily, compounded monthly (12.68% per annum), both before and after any court judgement in respect of the same from the date such payment was due.
4.7 Credit
Company agrees and acknowledges that Growth Channel may obtain consumer or other credit reports containing factual information in connection with such application and that Company authorizes receipt and exchange of credit information.
5.1 Privacy
The Growth Channel Privacy Policy (available at https://growthchannel.io/privacy) applies to the collection, use and disclosure of any personal information that Company or users may provide to Growth Channel. The parties shall comply with any laws and regulations pertaining to the privacy protection of personal information. Each party shall reasonably cooperate with the other party's specific requests as necessary to facilitate such party's compliance with any applicable privacy laws and regulations.
5.2 Company's Responsibilities
Company is solely responsible for any data submitted or transferred by Company to Growth Channel and any data collected by Growth Channel from or for Company pursuant to or in connection with the Agreement, including personal information ("Company Data").
Company warrants that it will not transfer to Growth Channel any Company Data that has not been lawfully processed in accordance with applicable data privacy laws. For greater certainty, Company warrants that it will obtain opt-in consent from data subjects, where such consent is required by data privacy laws, to use any Growth Channel trackers, including, but not limited to, conversion pixels, retargeting pixels, or look-alike pixels.
Company shall also identify any Company Data originating in the European Union, the European Economic Area, Switzerland or the United Kingdom ("EU Company Data") to Growth Channel. Company acknowledges that failure to properly identify EU Company Data shall result in Growth Channel rejecting any bid request and receipt of the EU Company Data.
Company understands and acknowledges that Growth Channel is relying on Company fulfilling its obligations under data privacy laws in order for Growth Channel to fulfill its obligations under the Agreement. Company shall notify Growth Channel if Company determines, or suspects, an issue or violation with its obligations outlined in this section.
5.3 Processing and Sub-processing
In respect of Company Data, Growth Channel and Company acknowledge that Company is a data controller and Growth Channel is a data processor.
Growth Channel shall process Company Data on behalf of Company in accordance with the Growth Channel Privacy Policy. Growth Channel will comply with Company's reasonably given and documented instructions regarding the processing of Company Data. Where Growth Channel receives an instruction from Company that, in Growth Channel's reasonable opinion, violates applicable data privacy laws, Growth Channel will inform Company, though a failure to inform the Company shall not constitute a waiver by Growth Channel of any of Growth Channel's remedies against the Company.
Growth Channel shall be entitled to use sub-processors to process Company Data on behalf of Growth Channel.
5.4 Data Subject Rights
Growth Channel will use commercially reasonable efforts to assist Company fulfill Company's obligations to respond to requests from data subjects to exercise the data subject's rights under data privacy laws in Company Data concerning the data subject, to the extent that such assistance is legally permitted and technically possible in the circumstances.
5.5 Security Measures
Growth Channel will implement and maintain appropriate technical, administrative and organizational measures to prevent unauthorized and unlawful processing of Company Data appropriate to the nature and sensitivity of the Company Data.
5.6 Aggregated Data
Company grants Growth Channel a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated and anonymized Company Data ("Aggregated Data") and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for Growth Channel's own business purposes. Growth Channel shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third-party.
5.7 System Data
Company understands that the Platform collects aggregated and non-personally identifiable data relating to users' use of the Platform, including non-personally identifiable information provided by users in response to an Ad ("System Data"). System Data, including all modifications thereto, is and shall be the sole and exclusive property of Growth Channel, and Growth Channel shall have the right to use System Data to improve the Platform; develop new products, services and features; understand usage; and generally for any purpose related to Growth Channel's business without further obligation to Company. Growth Channel may transfer or assign any of its rights in the System Data to any third-party.
For purposes of the Agreement, "Confidential Information" means any information related to or contained within the Platform, non-public information, know-how and trade secrets, whether provided in written or oral form, that is designated as being confidential, or that a reasonable person knows or reasonably should understand to be confidential; provided, however, that the following shall not be considered Confidential Information: information that is, or becomes, publicly available without a breach of the Agreement, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, is independently developed, or is a comment or suggestion one party volunteers about the other's business, products or services. The parties agree to use the Confidential Information solely for the purpose of performing their obligations hereunder. Both parties will refrain from disclosing any Confidential Information to any third-party, except to the extent that:
such disclosure is necessary to perform its obligations or exercise its rights under the Agreement;
such disclosure is required by applicable law or other regulatory guidance, provided that the party required to make such disclosure must use reasonable efforts to give the other party advance notice thereof so as to afford that party an opportunity to seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure and the Confidential Information is only disclosed to the extent required by law;
such disclosure is made with the consent of the disclosing party;
such disclosure is to Representatives of the disclosing party who have a need to know such confidential information in order to assist the disclosing party in carrying out its obligations hereunder; or
such disclosure is:
to legal counsel of the parties; or
in confidence, to accountants, banks, proposed investors, acquirers and financing sources and their advisors.
The Platform is provided "as is" with no warranty of any kind and Growth Channel expressly disclaims any and all warranties of merchantability, fitness for a particular purpose, availability, security, title and non-infringement. Under no circumstances will Growth Channel be liable for the results of Company use or misuse of the Platform, including any use contrary to law.
Company agrees to indemnify, defend and hold harmless Growth Channel and its Representatives from and against any third-party claims, liabilities, damages, losses and expenses (the "Claims"), including, without limitation, reasonable legal fees, arising out of or in connection with any of the following acts or omissions by the Company:
misuse of the Platform;
fraud, wilful misconduct, or gross negligence;
violation of legal and regulatory requirements applicable to Company;
breach of the Agreement;
any claim that Company's Ads violate applicable laws or regulations; or
any violation of the rights of another person or entity, including without limitation, any intellectual property rights.
In no event will Growth Channel, its affiliates or their respective agents be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages. Notwithstanding any other provisions of the Agreement, in no event will Growth Channel's aggregate liability to Company and any third-party in connection with the Agreement or Company's access to and use of the Platform exceed the total amount paid by Company to Growth Channel in the six month period preceding the claim or action.
10.1 Term
The Agreement shall commence on the Effective Date, and will remain in full force and effect until and unless terminated as set forth herein ("Term").
10.2 Termination
Subject to Section 10.3, Growth Channel may terminate the Agreement:
by providing Company with no less than thirty (30) days' notice;
immediately upon notice if Company materially breaches any of its obligations hereunder and fails to cure such breach within seven (7) days following written notice; or
immediately upon notice in the event of the suspension of business, insolvency, institution of bankruptcy or liquidation proceedings by or against Company.
Following any termination for convenience pursuant to subsection (a) above, both parties shall endeavor in good faith to honor any existing campaigns or open orders known to exist on the date of notice of termination.
10.3 Immediate Suspension/Termination
Notwithstanding the foregoing, Growth Channel may suspend or terminate the Agreement and the rights granted hereunder, including with respect to any existing campaigns or open orders known to exist on the effective date of termination, without prejudice to enforcement of any other legal right or remedy: (a) immediately and without notice if Company fails to pay in full any sum owing by it under the Agreement by the due date; or (b) upon giving written notice of such termination, (i) if Company infringes the intellectual property rights of Growth Channel; or (ii) if Growth Channel has reason to believe that Company is using the Platform for any improper or unlawful purpose, or that Company's Ads violate any Platform policy, or applicable laws or regulations.
10.4 Effect of Termination
Upon termination of the Agreement, subject to Section 11.12:
all rights of Company under the Agreement will terminate; and
Growth Channel's obligations relating to the Platform will terminate.
11.1 Notice
All notices and other information to be given by one of the parties to the other shall be given by hand delivery or e-mail to the other party at the coordinates set forth on the signature page. Notices sent by e-mail shall be deemed to have been received by the party to whom it was addressed on the date of transmission or receipt, or if sent on a day that is not a business day or after normal business hours, on the first business day following transmission or receipt. Notices sent by hand delivery shall be deemed to have been received on the date of delivery. Any notice of change of address by a party shall be effective only upon receipt of a notice provided to the other party in accordance with the provisions of this Section 11.1.
11.2 Marketing and Publicity
Without Growth Channel's prior written consent, Company shall not release any information regarding any Ads or Company's relationship with Growth Channel or its customers, including in press releases or promotional or merchandising materials. Growth Channel shall have the right to refer to its work for and relationship with Company for marketing and promotional purposes. No stand-alone press releases or general public announcements shall be made without the mutual consent of Growth Channel and Company.
11.3 Force Majeure
In no event shall Growth Channel be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that Growth Channel shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.
11.4 Entire Agreement
The Agreement, together with any other documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the parties.
11.5 Severability
If any provision of the Agreement is deemed illegal, invalid or unenforceable, the parties will endeavor to replace it by another provision that will as closely as possible reflect their original intention. The validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired.
11.6 Further Assurances
Each party shall take such action (including the execution, acknowledgement and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of the Agreement.
11.7 Relationship
The parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either party as an agent, representative or employee of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other party. Neither party will have the authority or right to represent nor obligate the other party in any way except as expressly authorized by the Agreement.
11.8 Governing Law
The Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario. The parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario.
11.9 Waiver
The waiver by either party of a breach or default of any provision of the Agreement by the other party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege by such party shall constitute a waiver.
11.10 Assignment
Company may not assign the Agreement, in whole or in part, by operation of law or otherwise without Growth Channel's prior written consent, and any such purported assignment shall be void.
11.11 Remedies
Company acknowledges that its breach of any confidentiality or proprietary rights provision of the Agreement may cause Growth Channel irreparable damage, which monetary damages would be inadequate to remedy. Consequently, Growth Channel may seek injunctive or other equitable relief to enforce the Agreement and prevent any and all acts in violation of those provisions. The exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.
11.12 Survival
Sections 6, 7, 8, 9 and 11 shall survive the expiration or termination of the Agreement.
These Terms of Use are effective as of November 2023.