SproutLoud | Terms of Service Between Us and Our Clients

SproutLoud Terms of Service

These terms of service are part of, and incorporated into, the SproutLoud services addendum between SproutLoud and Client (together, the “Addendum”). All capitalized terms not defined herein have their same meaning as set forth in the Addendum between SproutLoud and Client.

Software Terms of Use. All Holders are required to adhere to the terms and conditions detailed on www.sproutloud.com/terms. SproutLoud may, at its discretion, modify or change the terms and conditions set forth on www.sproutloud.com/terms. Holders will be provided with notice of any modifications or changes to the terms and conditions through the Engine and will be required to adhere to any such changes or modifications. Notwithstanding the forgoing, Client will have 30 days’ notice prior to any changes taking effect. All Sub-Marketing Services purchased through the Engine shall be subject the terms and conditions detailed on www.sproutloud.com/terms.
License Grant. Subject to and conditioned on Client’s compliance with the terms and conditions of the Addendum, the Agreement, and the applicable statement of work issued under the Agreement (the “SOW”), SproutLoud grants Client the rights and licenses to the Licensed Software as specified in the SOW.
Restrictions. Client shall not, and shall not permit others, to use the Licensed Software to: (i) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute or that does constitute a criminal offense or give rise to civil liability; (ii) transmit or upload any material through the Licensed Software containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing SproutLoud’, or any other person’s or entity’s, network, computer system, or other equipment; (iii) interfere with or disrupt the Licensed Software, networks, or servers connected to the SproutLoud systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Licensed Software; (iv) attempt to gain unauthorized access to the Licensed Software, other SproutLoud customers’ computer systems, or networks using the Licensed Software through any means; or (v) interfere with another party’s use of the Licensed Software. SproutLoud may monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable Law. Client shall be responsible for all acts and omissions of its Users as if such acts or omissions were its own.
Client Vendor. If Client pursues the use of Client Vendor, Client assumes all responsibility for any errors or omissions in the connection with Sub-Marketing Services provided by any Client Vendor. Client agrees that as a result of using Client Vendors, SproutLoud shall not be responsible for any related services provided by Client Vendors. Client shall be responsible for soliciting, negotiating and contracting directly with Client Vendors and remitting payment to Client Vendors for the services it provides to Client. Client acknowledges that SproutLoud did not participate in the selection of Client Vendors as a Vendor to provide production related services to Client and said decision was made solely by Client.
Ownership.
1. SproutLoud’s Materials. Client acknowledges that ownership of all right, title and interest to SproutLoud’s intellectual property, including but not limited to the Licensed Software (including, without limitation, each component thereof), SproutLoud’s trademark(s), the design, décor and image of SproutLoud’s marks, copyright materials, source code to any software provided by SproutLoud, and SproutLoud’s Confidential Information (collectively, the “SproutLoud Materials”), is and shall remain vested solely in SproutLoud. Client disclaims any right or interest therein or the good will derived therefrom. Except as expressly set forth in the Addendum or the Agreement, no right or implied license or right of any kind is granted to Client regarding the SproutLoud Materials, including any right to reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, or reverse engineer the SproutLoud Materials, any associated documentation thereof, or other technical material, or any portions thereof.
2. Client’s Materials. SproutLoud acknowledges that ownership of all right, title and interest to Client’s intellectual property, including but not limited to Client’s trademarks, the design, décor and image of Client’s marks, artwork, logos, graphics, video, text, data, copyright materials, marketing materials and documents provided to SproutLoud and/or uploaded on the Engine and Client’s Confidential Information is and shall remain vested solely in Client. SproutLoud disclaims any right or interest therein or the good will derived therefrom.
3. Holder’s Materials. The Parties acknowledge that ownership of any information or documents uploaded by a Sub-Account on the Engine is and shall remain vested solely in the Holder of such Sub-Account. SproutLoud will not release any of Sub-Account’s information or documents to Client unless (i) Sub-Account authorizes, in writing, the release of the information and documents to Client; (ii) Client is the Sub-Account; (iii) a contract exists between Client and Sub-Account which plainly states that ownership of any information or documents uploaded by Sub-Account on the Engine is and shall remain vested in Client; or (iv) Client provides documentation to SproutLoud which evidences Client’s ownership of any information or documents uploaded by Sub-Account on the Engine.
Confidentiality.
1. Non-Disclosure. Neither party will at any time, either during or subsequent to this Addendum, in any fashion, form or manner, either directly or indirectly, unless expressly consented to in writing by the non-disclosing party, use, divulge, disclose or communicate to any person or entity not a party to the Addendum or the Agreement any Confidential Information of any kind, nature or description concerning any matters affecting or relating to SproutLoud’s or Client’s business, other than to perform its obligations and exercise rights specifically granted hereunder.
2. Confidential Information. Confidential Information includes, but is not limited to, sales and marketing strategies, pricing data, sales data, buying habits or practices of Client or Client’s Holders, marketing methods, marketing programs, marketing data, Client contact information, Sub-Account lists, usernames and passwords granting access to the Engine or other Licensed Software, information and data entrusted to SproutLoud by Client or Sub-Account, site launch kit materials, proprietary software applications including any Licensed Software, the Engine, any source code, programming data, computer processes, e-mail lists, research and development data, production workflows, costs, engineering processes, profit or margin information, finances, future business plans, programming techniques, terms of any contractual relationships, written and any other information and records used in SproutLoud’s and Client’s business, or any other information of, about or concerning SproutLoud’s and Client’s business, manner of operations, or any other data of any kind, nature or description which is not readily available and known to the public at large.
3. Personnel. The disclosure of Confidential Information during the term of the Addendum shall be limited to those employees of the non-disclosing party to whom disclosure is necessary to the performance of the Addendum and who shall be bound by the terms hereof or to the extent that the non-disclosing party is required to disclose such information in the context of any administrative or judicial proceeding, provided that prior written notice of such disclosure and an opportunity to oppose or limit disclosure is given to the disclosing party.
4. Exceptions. Notwithstanding the foregoing, the non-disclosing party shall have no obligation under the Addendum with respect to any Confidential Information disclosed to which: (i) the non-disclosing party can demonstrate was already known to it at the time of its receipt hereunder; (ii) is or becomes generally available to the public other than by means of non-disclosing party’s breach of its obligations under the Addendum; or (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality.
5. Equitable Remedy. In the event of a breach of the above confidentiality provisions, the breaching party expressly waives the defense that an adequate remedy at law exists. The breaching party also expressly waives any requirement that the non-breaching party be required to post a bond to obtain injunctive relief or specific performance. The foregoing shall be in addition to any other rights or remedies that exist under statute, regulation or common law.
Warranty.
1. Client Warranties. Client warrants and represents to SproutLoud that any intellectual property, trademarks, copyright material, artwork, logos, graphics, video, text, data, marketing materials and any other information or documents provided to SproutLoud by Client or otherwise uploaded to or through the Licensed Software by Client or by SproutLoud at Client’s request, and the reproduction, distribution, exhibition, display and performance of same (and the creation of derivative works based thereon) in the intended manner will not in any way infringe or violate any copyright, patent, trademark, trade secret or other proprietary or personal rights of any third party.
2. Title. SproutLoud warrants and represents to Client that title and ownership of SproutLoud’s intellectual property, trademarks, copyright material, source code and the Engine is vested in SproutLoud.
3. Performance. SproutLoud further warrants and represents that the services being provided will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Client must report any deficiencies in the services to SproutLoud in writing in order to receive warranty remedies. For any breach of the warranty in this section, Client’s exclusive remedy, and SproutLoud’s entire liability, shall be the re-performance of the services. If SproutLoud is unable to re-perform the services as warranted within thirty (30) days of receipt of notice of breach, Client shall be entitled to terminate the Addendum for cause and to recover the fees paid to SproutLoud for the deficient services. NOTWITHSTANDING THE ABOVE, SPROUTLOUD MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE SERVICES BEING PROVIDED BY CLIENT VENDORS. CLIENT SHALL NOT BE ENTITLED TO ANY WARRANTY REMEDIES FROM SPROUTLOUD FOR ANY DEFICIENT SERVICES PROVIDED BY CLIENT VENDORS.
Disclaimer. SPROUTLOUD MAKES NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THOSE CONTAINED IN THE ADDENDUM, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER IMPLIED WARRANTIES REGARDING THE PRODUCTS AND SERVICES TO BE PROVIDED TO CLIENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
Taxes and Regulatory Fees. Amounts due under the Addendum or the Agreement are exclusive of all applicable federal, state and local sales, use, excise, communication service and any other taxes and regulatory fees and surcharges which may be levied or assessed upon any equipment or services. Client shall be solely responsible for payment of any and all such taxes and regulatory fees. Any calculation errors in assessment and/or tax rate changes requiring adjusted tax computations by SproutLoud as necessary to accurately and properly collect taxes does not relieve Client of its responsibility to remit tax payments fully when billed. Any failure to pay such taxes or regulatory fees or surcharges shall constitute a material default under the Addendum.
Indemnification.
1. SproutLoud Indemnity. SproutLoud agrees to indemnify, defend and hold harmless Client, its parent, subsidiaries and affiliated corporations, successors and assigns, officers, directors and agents from and against all liability, damages, loss, cost or expense, including but not limited to attorneys’ fees and costs, arising out of or in connection with:
  1. any claims that Client is infringing on a third party’s intellectual property rights through Client’s use of SproutLoud’s Engine. This provision shall not apply to any third party claims arising out of or in connection with any artwork, logos, graphics, video, text, data, marketing materials and any other information or documents provided to SproutLoud by Client and/or uploaded on the Engine either by Client or by SproutLoud at Client’s request.
  2. any claims against Client by a Sub-Account relating to SproutLoud’s alleged delivery of any defective product to Sub-Account. Notwithstanding the above, SproutLoud shall not indemnify, defend and hold harmless Client if a Client Vendor provided the services that resulted in a defective product.
  3. any claim, demand, suit or proceeding claiming that Client caused injury or damage to a third party as a consequence of SproutLoud’s, its suppliers’ or agents’ unintentional disclosure of your Confidential Information.
2. Client Indemnity. Client agrees to indemnify, defend and hold harmless SproutLoud, its parent, subsidiaries and affiliated corporations, successors and assigns, officers, directors and agents from and against all liability, damages, loss, cost or expense, including but not limited to attorneys’ fees and costs, arising out of or in connection with:
  1. any artwork, logos, graphics, video, text, data, marketing materials and any other information or documents provided to SproutLoud by Client and/or uploaded on the Engine either by Client or by SproutLoud at Client’s request. This provision includes but is not limited to any claims of infringement and piracy of trademarks, service marks and copyright material.
  2. the operation of Client’s business and Client’s use of the Engine.
  3. any claims against SproutLoud by Sub-Account relating to Client’s decision to sever and terminate its relationship with Sub-Account.
  4. any claim, demand, suit or proceeding claiming that SproutLoud caused injury or damage to a third party which resulted from the actions and/or inactions of Client Vendor in the rendering of services to Client and/or a Sub-Account, including but not limited to, the disclosure of Confidential Information, the delivery of defective product, and the inability to timely deliver its products and/or services.
  5. Indemnification Procedure. The indemnitee shall immediately notify the indemnitor, in writing, of any claims or the commencement of any suit or proceeding in which it seeks to enforce the aforementioned indemnification provisions, and indemnitor shall be given the opportunity to assume the defense of the matter at its own expense and with counsel of its own selection. If indemnitor fails to assume the defense, the indemnitee may defend the action in the manner it deems appropriate, and indemnitor shall pay to indemnitee all costs, including attorneys’ fees, incurred by indemnitee in effecting such defense, in addition to any sum which indemnitee may pay by reason of any settlement or judgment against indemnitee. A parties right to indemnity under the Addendum shall arise notwithstanding that joint or concurrent liability may be imposed on indemnitee by statute, ordinance, regulation or other law. The indemnitee shall cooperate with the indemnitor and shall at all times have the right to fully participate in such defense at its own expense.
Limitation of Liability.
1. Exclusions. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OF THIRD PARTY CLAIMS, ANY DAMAGES ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT, AND ANY DAMAGES ARISING FROM CLIENT’S UNAUTHORIZED USE OF THE ENGINE AND/OR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY, AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
2. Monetary Liability. EXCEPT WITH RESPECT TO THE FEES PAYABLE BY CLIENT HEREUNDER, THE INDEMNIFICATION OF THIRD PARTY CLAIMS, DAMAGES ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT, AND DAMAGES ARISING FROM CLIENT’S UNAUTHORIZED USE OF THE ENGINE AND/OR BREACH OF CONFIDENTIALITY, EACH PARTY’S LIABILITY TO THE OTHER FOR ANY CAUSE WHATSOEVER, WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO SPROUTLOUD (WHICH, FOR CLARITY, SHALL NOT INCLUDE ANY REFUNDS, CREDITS, PAYMENTS FOR SUB-MARKETING SERVICES OR ANY CO-OP PAYMENTS PAID BY CLIENT OR DUE TO BE PAID BY CLIENT UNDER THIS AGREEMENT) WITHIN THE ONE YEAR PRECEDING THE EVENT, OR LAST IN A SERIES OF EVENTS, WHICH GAVE RISE TO THE CLAIM.
3. Data Breach. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, EXCEPT FOR ANY LIABILITIES ARISING FROM SPROUTLOUD’S INDEMNIFICATION OBLIGATIONS, SPROUTLOUD SHALL HAVE NO LIABILITY FOR DAMAGES (INCLUDING, FOR CLARITY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES) TO CLIENT ARISING FROM A FAULTLESS DATA SECURITY BREACH. “FAULTLESS DATA SECURITY BREACH” MEANS`, FOR PURPOSES OF THIS AGREEMENT, A RELEASE OF CONFIDENTIAL INFORMATION OF CLIENT, A HOLDER, OR HOLDER’S CUSTOMER THAT: (i) IS NOT EXPRESSLY PERMITTED BY THIS AGREEMENT; (ii) IS NOT OTHERWISE AUTHORIZED IN WRITING BY CLIENT; (iii) DOES NOT ARISE FROM A FAILURE BY SPROUTLOUD TO COMPLY WITH SPROUTLOUD’S SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT (E.G., WITHOUT LIMITATION, A BUG, VIRUS OR HACKER THAT OBTAINS ACCESS TO CONFIDENTIAL AND/OR PERSONAL INFORMATION NOTWITHSTANDING SPROUTLOUD’S COMPLIANCE WITH SUCH SECURITY OBLIGATIONS); AND (iv) DOES NOT ARISE FROM SPROUTLOUD OR SPROUTLOUD’S PERSONNEL’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD.
General Provisions.
1. Assignment. This Addendum and license are personal to Client, and Client may not sell, assign or transfer the Addendum or any right or interest in the license granted, nor permit any such assignment or transfer to occur directly, indirectly or contingently by agreement or operation of law without the prior written consent of a Managing Member of SproutLoud.
2. Force Majeure. SproutLoud shall not be liable for any failure or delay in performance due to circumstances beyond its reasonable control, which shall include, without limitation, acts of God, earthquakes, labor disputes, changes in law, regulation or governmental policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or any other such occurrences.
3. Interpretation. Headings and captions are used only for convenience and are in no way to be construed as part of the Addendum or as a limitation of the scope of the particular paragraphs to which they refer.
4. Non-Waiver. The failure of SproutLoud to exercise any right or option given to it under the Addendum, or to insist upon strict compliance by Client with the terms of the Addendum, shall not constitute a waiver of any terms or conditions of the Addendum nor a waiver by SproutLoud of its right at any time to require exact and strict compliance with the terms of the Addendum.
5. Governing Law. The Addendum shall be deemed made and entered into in the State of Florida and shall be governed and construed under and in accordance with the laws of the State of Florida.
6. Entire Understanding. This Addendum constitutes the entire understanding and agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements (written or oral) and cannot be modified or amended except in writing signed by both parties.
7. Severability. The provisions of the Addendum are severable and the Addendum shall be interpreted and enforced as if all completely invalid or unenforceable provisions were not contained in the Addendum, and partially valid and enforceable provisions shall be enforced to the extent that they are valid and enforceable.
8. Survival. All provisions of the Addendum which impose an obligation on either party after termination of the Addendum shall survive the termination of the Addendum and be binding on the parties.
9. Venue. The parties agree that U.S. District Court for the Southern District of Florida, or if such court lacks jurisdiction, the 17th Judicial Circuit (or its successor) in and for Broward County, Florida, shall be the venue and exclusive proper forum in which to adjudicate any case or controversy arising, either directly or indirectly, under or in connection with the Addendum. In the event of any litigation to enforce or regarding a breach of the terms of the Addendum, the prevailing party shall be entitled to receive from the other reasonable attorneys’ fees and costs.
10. Notices. Anytime a party is required to notify the other, the notice must be in writing, and sent by registered or certified mail, postage prepaid, with a return receipt requested or by prepaid nationally recognized overnight delivery service. Notices to either SproutLoud or Client must be sent to the address provided on page 1 of the Addendum and directed to the individual who executes the Addendum. Either party can change their address by providing written notice to the other party.
11. Waiver of Jury Trial. THE PARTIES EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
Definitions.
1. “Affiliate” means a person or entity directly or indirectly Controlling, Controlled by or under common Control with another person or entity.
2. “Client Vendor(s)” means all Vendors Client requires for SproutLoud to engage with in connection with this Agreement for the purpose of providing Sub-Marketing Services. If Client is pursuing the use of Client Vendors, an Exhibit B will then be provided with definitions.
3. “Control”, “Controlled”, or “Controlling” mean, with respect to an entity: (i) beneficial ownership, whether direct or indirect, of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities; (ii) direct or indirect ownership of a fifty percent (50%) or greater interest in the net assets or profits of a partnership or other business organization without voting securities; or (iii) the possession, direct or indirect, of the power to direct or cause the direction of the management or policies of another legal entity through other ownership interest, by contract, or otherwise.
4. “Engine” means SproutLoud’s proprietary web-based distributed marketing software-as-a-service application.
5. “Holder” means the person or entity that is authorized to create and manage a Sub-Account.
6. “Licensed Software” means any executables, objects, scripts, plug-ins, application program interface(s), subroutines, programs, applications, applets, modules, components, scripts or other applications, work products or other material whether in object, source or other form, and whether delivered in encrypted or unencrypted form, provided to Client and/or its Affiliates by or on behalf of SproutLoud pursuant to the Agreement and the SOW, including, without limitation, the Engine.
7. “Sub-Account” means an Account of a Holder networked to the Master Account in the Engine such that the Holder may access Client’s Marketing Materials and/or any other products and/or services approved by Client for use and access by such Holder.
8. “Sub-Marketing Services” means any and all products and/or services requested, ordered and/or purchased by a Holder via its Sub-Account.
9. “Service” or “Services” means any and all products and/or services provided by SproutLoud to Client pursuant to the Agreement and the SOW. For clarity, Services do not include Sub-Marketing Services.
10. “User(s)” means any person or entity that is authorized to use a Sub-Account, including Holders.