General Terms and Conditions

These General Terms and Conditions (“Terms”), together with the terms set forth on each order form that contains a reference to these Terms (each, an “Order Form”), all statements of work entered into in connection with an Order Form (each, a “Statement of Work”), and any schedules or exhibits attached to any of the foregoing, constitute a legally binding and enforceable services agreement (collectively, the “Agreement”) by and between SproutLoud Media Networks, LLC (“SproutLoud”), and the client listed on an Order Form (“Client”). SproutLoud and Client are each a “Party” and together the “Parties.” All capitalized terms not defined in an Order Form shall have their meaning as set forth in these Terms or a Statement of Work. These Terms shall be deemed incorporated by reference into each Order Form, including any Statement of Work.

To the extent of any conflict between the terms of an Order Form, these Terms, or any Statement of Work, the following order of precedence will apply: (1) these Terms; (2) an Order Form; and (3) any Statement of Work. Notwithstanding the foregoing, the terms and conditions contained in an Order Form may control over these Terms if the conflict between terms is expressly specified and the Order Form provides that its terms control to the extent of such conflict.

Section 1. Introduction

A. SproutLoud is the owner of certain trademarks including SproutLoud® which has been registered with the United States Patent and Trademark Office.

B. SproutLoud has developed a proprietary software/web-based application through its research, capital investment and engagement in the business of distributed marketing through an online application or web-based software as a service solution.

C. Client desires to utilize SproutLoud’s proprietary software/web-based application.

Section 2. Definitions

The following definitions shall apply to the Agreement:

A. “Account” means a password-protected account that enables access to the Engine, each of which is identified by a unique identification number, including Master Accounts and Sub-Accounts.

B. “Affiliate” means a person or entity directly or indirectly Controlling, Controlled by or under common Control with another person or entity.

C. “Authorized Representative” means: (i) with respect to Client, an employee of Client established as the primary point of contact with SproutLoud or holding a title not less than Director or Higher; and (ii) with respect to SproutLoud, an employee of SproutLoud holding a title not less than Senior Vice President. For the avoidance of doubt, no Order Form or other document or writing is, or will be, binding upon either Party until executed by an Authorized Representative of each Party.

D. “Client Vendor(s)” means all Vendors Client requires for SproutLoud to engage with in connection with the Agreement for the purpose of providing Sub-Marketing Services.

E. “Client Content” means all Marketing Materials, location data, and other information or content that is made available to SproutLoud by or on behalf of Client in connection with its or SproutLoud’s provision of its products or services.

F. “Confidential Information” has the meaning set forth in Section 7(D).

G. “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.

H. “Engine” means SproutLoud’s proprietary web-based distributed marketing software-as-a-service application.

I. “Fees” means the fees, charges and/or other amounts specified on an Order Form or, applicable, any Statement of Work.. For the avoidance of doubt, all Fees are in United States Dollars unless expressly noted otherwise.

J. “Holder” means the person or entity that is the primary User authorized to create and manage a Sub-Account.

K. “Law” means any applicable governmental or quasi-governmental statue, law, rule, regulation, ordinance, code, order and tariff in any country (whether federal, state, local, municipal or otherwise) as such may be amended from time to time.

L. “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, including, without limitation, the Engine.

M. “Marketing Materials” means Client’s marketing modules, marketing assets and marketing programs (including, without limitation, any creative materials uploaded to the Engine by Client or by SproutLoud at Client’s request).

N. “Master Account” means the Account provided by SproutLoud to Client that enables it to access and use the Engine to, among other things: (i) upload, compile, organize and/or distribute and manage Client’s Marketing Materials and any Marketing Collateral available to Sub-Accounts; and (ii) administer and manage access to the Engine and Marketing Materials thereon by Sub-Accounts.

O. “Professional Services” means the consulting and professional services set out in a Statement of Work. For clarity, Professional Services do not include hosting and making the Licensed Software available over the internet.

P. “Professional Services Rates” means the hourly rates for Professional Services obtained pursuant to an Order Form or a Statement of Work.

Q. “Reporting Data” means any and all performance data related to the products and/or services provided via the Master Account or any Sub-Account, including, without limitation, purchase history, call tracking, response rates and any other information relating to the Marketing Materials, marketing collateral and corresponding services.

R. “Service” or “Services” means and the Professional Services and Software Services as set forth in an Order Form or a Statement of Work. For clarity, Services do not include Sub-Marketing Services.

S. “Service Data” means any and all information processed or stored by SproutLoud in connection with use of the Engine and shall exclude Reporting Data.

T. “Software Services” means hosting and making the Licensed Software available to Client over the internet in accordance with this Agreement.

U. “SproutLoud’s Personnel” means any and all members, managers, officers, directors, employees, independent contractors, agents and/or representatives of SproutLoud and/or its Affiliates, and any other person(s) and/or entity(ies) under the direction, supervision or control of SproutLoud and/or its Affiliates.

V. “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.

W. “Sub-Marketing Services” means any and all products and/or services requested, ordered and/or purchased by a Holder via its Sub-Account.

X. “User(s)” means any person or entity that is authorized to use a Sub-Account, including Holders.

Y. “Vendor(s)” means any and all third party person(s) and/or entity(ies) selected by SproutLoud that provides products and/or services to Users via such Holder’s Sub-Account to access the Engine. For clarity, all Client Vendors shall be excluded from this definition. For purposes of the Agreement, a Vendor will only be deemed SproutLoud’s Personnel if, and to the extent that, such Vendor is providing any Professional Services to Client and/or its Affiliates, directly or indirectly, on behalf of SproutLoud; as compared to providing Sub-Marketing Services solely to Users of Sub-Accounts.

Section 3. The Engine and Services

A. License Grant. SproutLoud hereby grants to Client and Client’s Affiliates the nonexclusive, royalty-free, worldwide rights and license to access and use the Licensed Software for Client’s and Client’s Affiliates’ business purposes. At all times during the term, SproutLoud shall make the Engine available to Client via its Master Account, and shall ensure that Client has any and all login and password information necessary to access its Master Account in the Engine.

B. Restrictions. Client shall not, and shall not permit others, to use the Licensed Software to: (1) 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; (2) 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’s, or any other person’s or entity’s, network, computer system, or other equipment; (3) interfere with or disrupt the Licensed Software, networks, or servers connected to SproutLoud’s 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; (4) attempt to gain unauthorized access to the Licensed Software, other SproutLoud customers’ computer systems, or networks using the Licensed Software through any means; (5) interfere with another party’s use of the Licensed Software; (6) share login credentials to access the functionality of the Engine and will use commercially reasonable efforts to secure such credential from loss or theft; or (7) provide marketing services to individuals or entities located outside of the United States, unless agreed upon in an Order. 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 activity occurring using its login credentials and acts and omissions of its Users as if such acts or omissions were its own.

C. Holders Terms of Use

1. All Users are required to agrees to the terms and conditions detailed on www.sproutloud.com/terms (the “User Terms”) before being granted access to the Software Services. SproutLoud may, at its discretion, modify or change the User Terms. Users will be provided with notice of any modifications or changes to the User Terms through the Software Services and will be required to agree to any such changes or modifications. Notwithstanding the forgoing, Client will have 30 days’ notice prior to any changes taking effect. In the event of a conflict between the terms of this Agreement and the User Terms, where the User is Client or Client’s employees or contractors acting on behalf of Client, the terms of this Agreement shall take precedence and control.
2. All Sub-Marketing Services purchased through the Engine shall be subject the terms and conditions detailed on www.sproutloud.com/terms.

D. Engine Networking and Permissions

1. SproutLoud agrees to provide Sub-Accounts access to Client’s modules, marketing collateral, marketing assets and corresponding services.
2. Client is responsible for self-managing Holders of Sub-Accounts networked to its Master Account. Client is solely responsible for ensuring that, at all times, Holders are authorized to access Sub-Accounts. Client may sever and terminate its relationship with any Sub-Account at its discretion and for any reason permitted by law.
3. SproutLoud’s relationship with Client is non-exclusive. SproutLoud provides access to the Engine to other clients and their Sub-Accounts.
4. The identity of Client’s Sub-Accounts and Users is deemed Confidential Information as defined herein.

E. Services

1. Services. SproutLoud shall provide the Services to Client and Client’s Affiliates in accordance with the terms and conditions set forth in the Agreement. Services will be limited to those identified in an Order Form, including any associated Statement of Work issued under such Order Form.
2. Order Forms. Client hereby orders all Services, at associated Fee schedules, as identified in the initial Order Form or any subsequent Order Form, including as further specified in any Statements of Work attached to or issued under an Order Form. From time to time and at any time, additional products and/or services (including custom development services) may be provided pursuant to an Order Form executed by Authorized Representatives of the Parties.
3. Change Orders. Client may, at any time and from time to time, request modifications to the Services set forth in an Order Form. If SproutLoud is willing and capable of providing such modifications to Client, then SproutLoud shall provide Client with a fee estimate. If Client accepts the fee estimate, then SproutLoud shall execute and deliver the modifications set forth in the fee estimate via a Statement of Work. In the event of a conflict between Order Forms (including any Statements of Work associated with an Order Form), the latest in the series of Order Forms shall prevail.

F. Integrations

1. Third-Party Services. The Engine enables linking between various online third-party services such as third-party email, cloud storage, social and similar services (“Third-Party Services”). SproutLoud may provide connections to these Third-Party Services without the need for software development (“Connectors”), and Client may choose to make these available to Users. Should Client make these capabilities available, Users may be required to authenticate, register for, or log into Third-Party Services through the Engine or on the websites of their respective providers. In the event Client is User, by linking Holder’s account on the Engine to Customer’s account on a Third-Party Service, Client is authorizing SproutLoud to access Client’s Third-Party Service account (and any information, content, materials and features included therein) and use such Third-Party Service (with read and/or write privileges) on Client’s behalf for the purpose of integrating the Engine with such Third-Party Service. Client’s use of the Third-Party Services is governed solely by the agreement between Client and the provider of such Third-Party Service, and the Third-Party Services provider, and not SproutLoud, is solely responsible for such Third-Party Service. As between Client and SproutLoud, Client is solely responsible for securing and backing up data stored on Third-Party Services, including any data that is used to create or that is the basis of any client content. The Third-Party Service may provide, or third parties may provide, links or other access to third-party sites and resources on the internet (including without limitation Third-Party Services). Client acknowledges and agrees that SproutLoud does not endorse such sites or resources including Third-Party Services and Connectors and that SproutLoud will not be responsible or liable, directly or indirectly, for any damage or loss caused by Client’s use of or reliance on any content, events, goods or services made available through any such Third-Party Service or Connector. Client agrees that SproutLoud is not responsible for the security of any Third-Party Service or Connector. SproutLoud does not make any warranty as to the availability or performance of any Third-Party Service or Connector, nor the continued future support of any connection to a Third-Party Service or Connector.
2. WebHooks. If provided in an Order Form, Client may use SproutLoud’s event broadcaster and webhooks to send data to other platforms. Client is responsible for such use and how it exposes data from SproutLoud to other systems.
3. API. Notwithstanding the foregoing contents of this Section, SproutLoud shall, at all times during the course of this Agreement, be responsible for the security and performance of its APIs.

Section 4. Fees and Payment Terms

A. Services Fees.

1. Fees for services provided by SproutLoud under the Agreement will be as set forth in an Order Form or applicable Statement of Work. Unless otherwise set forth in an Order Form or Statement of Work, all Fees for the Services will be invoiced to Client monthly, and Client shall pay such fees within thirty (30) days from the date of the invoice. Fees and expenses due from Client under the Agreement may not be withheld or offset by Client against other amounts for any reason.
2. If SproutLoud has a replacement product for all or part of the Services that SproutLoud supplies, SproutLoud will provide Client with a migration path and license to any new and generally commercially available replacement product or online service which contains equivalent or substantially the same functionality as the Services already in use. If a new product or online service is supplied by SproutLoud is an upgrade to existing Services already in use or made available to other customers under a similar licensing plan of the Client, then Client shall be entitled to all modules free of additional charge.
3. Client shall ensure all documentation required by its internal policies for payment to SproutLoud, such as purchase orders, are available and ready so that invoices may be sent by SproutLoud, and paid by Client, in accordance with this Agreement. Client’s failure to issue purchase orders or other necessary documentation does not affect its payment obligations or their timing. Client acknowledges that SproutLoud has no obligation to perform any Services or Sub-Marketing Services if the terms of a purchase order are inconsistent with any applicable Order Form.

B. Sub-Marketing Services Fees.

1. SproutLoud will charge each Holder’s credit card for any portion of all orders and/or purchases of Marketing Materials or Sub-Marketing Services by such Holder that Client has not previously agreed to pay. Client may determine and set, via the Master Account, in Client’s sole and absolute discretion, Client’s maximum proportional share of the cost of any Marketing Materials or Sub-Marketing Services that may be paid for using co-op funds, if any. If Client has not elected to pay any such proportional share of such fees and expenses, the Holder is solely liable for its purchases of Marketing Materials and Sub-Marketing Services.
2. Should Client choose to pay a proportional share of the cost of Marketing Materials or Sub-Marketing Services, Client may be invoiced each week during the Term for fees and expenses relating to such purchases (the “Sub-Marketing Fees). Client shall pay to SproutLoud the Sub-Marketing Fees upon receipt of the applicable invoice. .
3. Regardless of whether it is a Holder’s, Client’s or both of their responsibilities to pay for the Marketing Material or Sub-Marketing Services, Client acknowledges that any failure to timely make payments in full for the Marketing Materials or Sub-Marketing Services may result in delays or failure to provide the Sub-Marketing Services. Further, in such cases, SproutLoud has no responsibility or liability to Client or any Holder.
4. 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.

Section 5. Schedule and Deliverables

A. Custom Development.

Client may consider ad-hoc changes to the Engine that require custom development. Any such custom development work will be as set forth and agreed to in a Statement of Work. Unless otherwise agreed in writing, all custom development commissioned and performed by SproutLoud on behalf of Client shall remain the exclusive ownership of SproutLoud, and shall be subject to the Confidentiality provisions set forth in Section 7(D).

B. Deliverables Schedule

• SproutLoud agrees to use commercially reasonable efforts to provide deliverables according to all details or any Statement of Work attached to an Order Form.

Section 6. Term; Termination

A. Term

The Agreement shall commence on the Effective Date set forth in the applicable Order Form and, unless sooner terminated pursuant to these Terms, will remain in effect until the expiration or termination of each Order Form.

B. Termination for Cause

Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party, provided that such cure period shall be 10 days with respect to Client’s failure to pay any outstanding amount owed hereunder. A material breach by Client includes but is not limited to a failure to pay any outstanding amount owed hereunder, failure to pay taxes, regulatory fees or surcharges levied on products or services provided by SproutLoud to Client, or the conviction of Client in a court of competent jurisdiction of an indictable offense punishable by a term of imprisonment in excess of one (1) year directly related to the conduct of its business. In addition, SproutLoud may immediately terminate this Agreement if Client breaches Section 7(D) and no cure period shall apply. Without limiting SproutLoud’s right to terminate or any other rights or remedies, in any event where a right to terminate has arisen under this Section 6(B), SproutLoud may also suspend the Services to Client (in whole or in part) or deactivate Client’s Master Account preventing any access to the Engine.

C. Termination for Convenience

Client may terminate for convenience this Agreement and/or any Order Form after at least ninety (90) days prior written notice to SproutLoud, however, Client shall remain obligated to pay all Fees for the remainder period of the relevant Order Form as if no such termination had occurred.

D. Effect of Termination

1. Upon termination of the Agreement, (i) Client’s right to use SproutLoud’s proprietary software/web-based application, including the Engine, shall terminate; (ii) SproutLoud shall cease using Client’s name, logos, and brand in any manner; and (iii) SproutLoud shall no longer provide any further Services and/or products to Client. Each party shall be responsible for satisfying and paying for all services, products, orders and purchases up through the effective date of termination. Client shall not have access to nor will SproutLoud make available to Client any Reporting Data generated by SproutLoud’s proprietary software/web-based application, including but not limited to the Engine, after termination or expiration of the Agreement.
2. Upon termination of an Order Form or any Statement of Work, Client’s right to use the Licensed Software contained in an Order Form or Statement of Work, as applicable, will terminate and SproutLoud shall no longer provide any further Services and/or products to Client with respect to such Order Form or Statement of Work.
3. Upon termination of the Agreement, SproutLoud shall maintain all information, marketing materials and documents provided by Client and stored on SproutLoud’s computer servers for ninety (90) days. SproutLoud, during this period of time, and at its discretion, will either (i) provide Client with limited access to the Engine to enable it to retrieve any information (including any and all reporting provided for under the Agreement), marketing materials and documents stored on SproutLoud’s computer servers which have not been archived; or (ii) upon written request by Client, provide to it electronic copies of all information, marketing materials and documents maintained on SproutLoud’s computer servers that have not been archived. After the ninety (90) days has lapsed, SproutLoud may permanently delete all of Client’s information, marketing materials and documents stored on SproutLoud’s computer servers.
4. If Client terminates the Agreement or any Order Form pursuant to Section 6(C), Client will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination but will remain obligated to pay all Fees attributable to the period prior to the effective date of termination. If SproutLoud terminates the Agreement or any Order Form pursuant to Section 6(B), or Client terminates the Agreement or any Order Form pursuant to Section 6(D), all Fees that would have become payable had the Agreement or Order Form remained in effect until the natural expiration of the applicable term will become immediately due and payable, and Client shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of SproutLoud’s invoice.
5. The foregoing shall be in addition to any other rights or remedies of a party that exist under statute, regulation or common law.

Section 7.  General Terms

B. Service Levels. SproutLoud will provide the Software Services in accordance with the services levels set out at http://www.sproutloud.com/legal/SiteServiceLevelAgreements.

C. Proprietary Rights.

1. SproutLoud’s Property. 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, any components thereof), SproutLoud’s trademark(s), the design, décor and image of SproutLoud’s marks, copyright materials, source code and SproutLoud’s Confidential Information, is and shall remain vested solely in SproutLoud.
2. Client’s Property.
   i. SproutLoud acknowledges that ownership of all right, title and interest to Client Content and 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.
   ii. Client acknowledges and agrees that (i) certain products or services may involve distribution of Client Content, including but not limited to business listing information (e.g. store location, hours of operation, and contact information) and/or other interactions with third parties (the “Publishers”) that own or operate online business directories, search web sites, social media web sites, mobile apps or other online properties (each, a “Publisher Site”). Client grants SproutLoud and its third party providers, their affiliates and their respective Publishers (together “Third Party Providers”) a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display and distribute the Client Content in connection with the provision of products and services to Client. The licenses granted herein shall be limited to the rights contractually required by such party and the licenses shall be granted to each Third Party Provider only when SproutLoud and/or Client uses products or services to, directly or through such Third Party Provider, distribute Client Content to such Third Party Provider or otherwise interact with such Third Party Provider. Where such a Third Party Provider identifies any Client Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with applicable formatting guidelines (e.g. use of unsupported special characters), such Third Party Provider may (but is not required to), in addition to its other available rights and remedies, modify the Client Content to correct the error or bring it into compliance with the applicable formatting guidelines. Certain Client Content may be subject to the Publishers’ character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified at any time to comply with such policies. SproutLoud does not guarantee that any Client Content will be displayed on any Publisher Site and the appearance and/or location of any Client Content placement may change at any time.
3. Holder’s Property. The Parties acknowledge that ownership of any information or documents uploaded by a Holder on the Engine is, and shall remain, vested solely in the Holder of such Sub-Account. SproutLoud will not release any of Holder’s information or documents to Client unless (i) the Holder authorizes, in writing, the release of the information and documents to Client; (ii) Client is the Holder; (iii) a contract exists between Client and Holder that plainly states that ownership of any information or documents uploaded on the Engine by Holder 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 Holder on the Engine.
4. Service Data. SproutLoud may, for internal purposes only, use Service Data in an identifiable form, to provide and improve the Services. SproutLoud may use Service Data in an aggregated and anonymized form to derive statistical and performance information related to the Services (the “Statistics”) pursuant to the terms herein. SproutLoud may use and disclose the Statistics, provided that they do not include any data that would reveal the identification of any individual, Client, User or Holder or other Customer Confidential Information. Customer grants SproutLoud a perpetual, non-revocable worldwide royalty free license to use the Service Data to the extent it is incorporated into the Statistics.

D. Confidentiality.

1. Definition. 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 any Licensed Software, information and data entrusted to SproutLoud by Client or Sub-Account, site launch kit materials, proprietary software applications including the Engine, 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.
2. Non-Disclosure; Limited Use. Neither party will at any time, either during or subsequent to the Agreement, 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 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. The disclosure of Confidential Information during the term of the Agreement shall be limited to those employees of the non-disclosing party to whom disclosure is necessary to the performance of the Agreement 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. 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.
3. Exceptions. The non-disclosing party shall have no obligation under the Agreement 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 Agreement; or (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality.
4. Regulated Data. SproutLoud has no control over the information or data that is uploaded to, stored on, or otherwise processed by the Licensed Software or the underlying hardware or software used to provide the Services, and where the type, character, properties, content, and/or origins of any such information or data requires that the parties enter into a data processing addendum, business associate agreement, or take other additional or different steps or actions to remain compliant with applicable laws and regulations (collectively, “Regulated Data”), Client shall be responsible for its Regulated Data so that it may comply with all applicable laws.Other than the names, mailing addresses, phone numbers and email addresses of of individuals for which SproutLoud may need to perform the Services, Client shall not provide Regulated Data without expressly disclosing such data on an Order Form. Notwithstanding the forgoing, Client agrees that at all times during this Agreement it shall not disclose or otherwise make available any sensitive personal, financial or healthcare data to SproutLoud (“Sensitive Personal Information”). Sensitive Personal Information includes but is not limited to any of the following relating to an individual: (i) government-issued identification number (including social security number, driver’s license number or state-issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information; (iii) any security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (iv) biometric data or records or genetic code; (v) Personal Data (as defined under the European Union’s General Data Protection Regulations, as amended); (vi) Protected Health Information (as defined under Health Information Portability and Accountability Act of 1996, as amended); (vii) any information, except age or gender, that relates to: (a) the past, present or future physical, mental or behavioral health or condition of any individual; (b) the provision of health care to any individual; or (c) payment for the provision of health care to any individual; or (viii) race, religion, ethnicity, sex life or practices, political or philosophical beliefs, political party or trade union membership, background check information, judicial data such as criminal records or information on other judicial or administrative proceedings. If any such Sensitive Personal Information is sent to SproutLoud, SproutLoud shall have the right, but not obligation, to extract, delete, remove and otherwise remediate such information from its systems. SproutLoud has the right, but undertakes no obligation, to monitor the Services for Sensitive Personal Information, and SproutLoud shall have no obligation whatsoever with respect to any information transmitted in violation of the foregoing.

E. Data Security.

1. Security Program. During the Term, SproutLoud shall maintain a reasonable security program, including SOC 2 Type II certification in accordance with industry standards that is designed to protect the security of Client’s Confidential Information and prevent unauthorized access to such information, which shall be provided to Client upon written request at [email protected]. Such security program shall include implementation of appropriate administrative, technical and physical safeguards.
2. Security Incident. If either party believes that there has been a Security Incident (as defined below), such party must promptly notify the other party to the extent permitted by law. Each party will reasonably assist the other party to mitigate any potential damages. For purposes of this Agreement, “Security Incident” shall mean any unauthorized use of, access to, or disclosure of Client Confidential Information. If the Security Incident is caused by SproutLoud’s breach of its security obligations in 7 (E) (1), SproutLoud shall pay the following expenses incurred by Client to the extent such expenses are reasonable and documented: (i) the costs of providing notifications to the extent such notifications are required by applicable law and (ii) credit monitoring costs to the extent providing such credit monitoring services are required by law. SproutLoud shall also pay for the costs of a reasonable forensic investigation to determine the cause of the Security Incident. SPROUTLOUD SHALL NOT BE RESPONSIBLE FOR ANY COSTS OR EXPENSES RELATED TO A SECURITY INCIDENT THAT IS CAUSED BY THE ACTS OR OMISSIONS, MISCONDUCT, NEGLIGENCE, OR FRAUD BY OR OF CLIENT OR ANY OF ITS HOLDERS, USERS, EMPLOYEES, AGENTS, OR CONTRACTORS.
3. Data Processing Agreement. Client and SproutLoud agree to abide by their respective obligations specified in the Data Processing Agreement, attached hereto as Attachment A.

F. Business Continuity

1. SproutLoud will ensure it has fully documented, prepared for, and can implement, at any time and upon request, its business continuity plan to achieve business continuity, minimizing or avoiding disruption to Services. SproutLoud will ensure it has appropriately backed-up Client Content to ensure prompt recovery following a Security Incident.

E. Warranty.

1. Client Warranties. Client warrants and represents to SproutLoud that: (i) it will comply with all applicable laws, rules and regulations related to its access to and use of the Licensed Software and Services, including but not limited to the Americans with Disabilities Act, Health Insurance Portability and Accountability Act of 1996, Health Information Technology for Economic and Clinical Health Act, Gramm–Leach–Bliley Act, General Data Protection Regulation, Children’s Online Privacy Protection Act, Federal Trade Commission Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, and Canadian Anti-Spam Law of 2014; (ii) it owns or has rights in the Client Content and data uploaded to the Licensed Software or provided to SproutLoud that are sufficient for SproutLoud to perform hereunder; and (iii) 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 and uploaded on the Engine 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. SproutLoud Warranties. SproutLoud further warrants and represents that (i) the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards and (ii) the Software Services shall include the functionality set out in the applicable Order in all material respects. 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 re-performance with respect to the Professional Services and the services credits for the Software Services. If SproutLoud is unable to re-perform the Professional Services as warranted within thirty (30) days of receipt of notice of breach, Client shall be entitled to terminate the applicable Statement of Work for cause and to recover the fees paid to SproutLoud for the deficient Professional 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.
3. Beta Features. In the course of using the Services, Client may be offered an opportunity to trial beta features and functionality. For clarity, beta features are offered on an as-is and as-available basis. SproutLoud makes no warranties, express or implied, and hereby disclaims all implied warranties with respect to any beta features. Beta features will be document by Order Form with Client.
4. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, SPROUTLOUD AND ITS PROVIDERS PROVIDE THE SERVICES AND LICENSED SOFTWARE “AS-IS”, “AS-AVAILABLE”, FURTHER AND MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE CONTAINED IN THIS AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE OR OTHER IMPLIED OR STATUTORY WARRANTIES REGARDING THE SERVICES OR LICENSED SOFTWARE TO BE PROVIDED TO CLIENT, INCLUDING IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, COMPLIANCE WITH ANY APPLICABLE LAW, RULE, REGULATION, JUDGMENT, ORDER OR DECREE OF ANY GOVERNMENT, GOVERNMENTAL INSTRUMENTALITY, NONINFRINGEMENT, TITLE, AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. SPROUTLOUD DOES NOT WARRANT THAT (I) THE SERVICES OR LICENSED SOFTWARE COMPLIES WITH ANY LAWS APPLICABLE TO CLIENT’S BUSINESS, INCLUDING BUT NOT LIMITED TO THE AMERICAN DISABILITIES ACT, OR (II) ITS USE OF THE SERVICES OR LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING BUT NOT LIMITED ERRORS IN CONTENT OR TEMPLATE DESIGNS, WHICH ARE CLIENT’S SOLE OBLIGATION TO REVIEW. SPROUTLOUD SHALL HAVE NO LIABILITY FOR ANY PUBLISHER SITES, INCLUDING THEIR AVAILABILITY OR ANY CHANGE IN THE PUBLISHER SITES, FOR ANY DECISION BY A PUBLISHER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT

H. Taxes and Regulatory Fees. Amounts due under 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 Agreement.

I. Indemnification.

1. SproutLoud. 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, payable to a third party bringing a claim against Client to the extent such claim arises out of:
   i. any allegation that Client is infringing on a third party’s intellectual property rights through Client’s use of the Engine in accordance with the Agreement. 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. This provision shall also not apply if the alleged infringement is based upon results from : (i) use of the Services (A) in combination with any other computer programs not licensed by SproutLoud to Client, (B) other than as permitted under this Agreement or (C) other than in accordance with its applicable Documentation; (ii) any act or omission of any party other than SproutLoud; or (iii) any third-party software or equipment that is used in connection with the Software Services.
   ii. 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.
   iii. Violations in law by SproutLoud that is not based upon Client’s use of the Engine or violates any other unauthorized uses in this Agreement.
2. Client. 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, payable to a third party bringing a claim against SproutLoud to the extent such claim arises out of:
   i. Client’s violation of any applicable law, rule or regulation, including but not limited to the Americans with Disabilities Act, Health Insurance Portability and Accountability Act of 1996, Health Information Technology for Economic and Clinical Health Act, Gramm–Leach–Bliley Act, General Data Protection Regulation, Children’s Online Privacy Protection Act, Federal Trade Commission Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, and Canadian Anti-Spam Law of 2014.
   ii. 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.
   iii. the operation of Client’s business and Client’s use of the Engine.
   iv. any claims against SproutLoud by Sub-Account relating to Client’s decision to sever and terminate its relationship with Sub-Account.
   v. 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.
3. Procedures. 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 Party’s right to indemnity under the Agreement 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.
4. SproutLoud Mitigation Right. If the Licensed Software, or any part thereof, becomes, or in the opinion of SproutLoud may become, the subject of a claim of infringement or misappropriation, SproutLoud may, at its option: (i) obtain a license for Client’s continued use of the License Software in accordance with this Agreement; (ii) replace or modify the Licensed Software so that they are no longer claimed to infringe or misappropriate; or if neither of (i) or (ii) are available on commercially reasonable terms in SproutLoud’s discretion, (iii) terminate this Agreement and refund to Client a pro-rated refund for the unused remaining portion of the term set out in the applicable Order Form.

H. Limitation of Liability.

1. Damages Exclusion. EXCEPT WITH RESPECT TO A PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 7(G) (INDEMNIFICATION), DAMAGES ARISING FROM CLIENT’S UNAUTHORIZED USE OF THE ENGINE OR BREACH OF SECTION 7(D) (CONFIDENTIALITY), OR TO THE EXTENT OF EITHER PARTY’S GROSS NEGLIGENCE OR MORE CULPABLE CONDUCT (INCLUDING BUT NOT LIMITED TO FRAUD), 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. Damages Cap. EXCEPT WITH RESPECT TO THE FEES PAYABLE BY CLIENT HEREUNDER, A PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 7(G) (INDEMNIFICATION), DAMAGES ARISING FROM CLIENT’S UNAUTHORIZED USE OF THE ENGINE OR BREACH OF SECTION 6(D) (CONFIDENTIALITY), OR TO THE EXTENT OF EITHER PARTY’S GROSS NEGLIGENCE OR MORE CULPABLE CONDUCT (INCLUDING BUT NOT LIMITED TO FRAUD), 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.

K. Subcontractors. Unless otherwise expressly set out in this Section, SproutLoud may subcontract any portion of the Services or Sub-Marketing Services provided that it remains responsible to Client for such subcontractor’s performance to the same extent as if carried out by SproutLoud. SproutLoud utilizes subcontractors for Software Services to host and deliver the Engine (“Hosting Subcontractor”). . Should SproutLoud wish to change its Hosting Subcontractor, SproutLoud will inform Client of the new Hosting Subcontractor in advance of any such change. Should Client reasonably object to such changes based on the Hosting Subcontractor Criteria, Client’s sole remedy will be to terminate this Agreement and all Orders and Statements of Work within thirty (30) days of SproutLoud informing Client of such change. SproutLoud will ensure that its Hosting Subcontractor (i) is at least SSAE 16 Type II SOC2 compliant or any comparable or successor standard, and (ii) has non-disclosure and limited-use obligations that are substantially as protective as SproutLoud’s material obligations under this Agreement with respective to Client’s Confidential Information (the “Hosting Subcontractor Criteria”), except where Client waives of any such criteria.

L. Assignment. The Agreement (including any Order Form or any Statement of Work) and license herein are personal to Client, and Client may not sell, assign or transfer any of the foregoing, in whole or in part, or any right or interest in this Agreement or the license granted herein, 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.

M. 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.

N. Export. Client shall not: (i) permit authorize any third party to access or use the Software Services in violation of any U.S. law or regulation; or (ii) export any software provided by SproutLoud or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit authorize any third party, other than Users through the Portal, to access or use the Engine or SproutLoud Software Services, hardware, systems or networks, or export SproutLoud’s software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

O. Interpretation. The introduction shall be considered a part of the Agreement. Headings and captions are used only for convenience and are in no way to be construed as part of the Agreement or as a limitation of the scope of the particular paragraphs to which they refer.

P. Non-Waiver. The failure of SproutLoud to exercise any right or option given to it under the Agreement, or to insist upon strict compliance by Client with the terms of the Agreement, shall not constitute a waiver of any terms or conditions of the Agreement nor a waiver by SproutLoud of its right at any time to require exact and strict compliance with the terms of the Agreement.

Q. Governing Law. The Agreement shall become valid when executed and accepted by SproutLoud at Sunrise, Florida; it 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.

R. Entire Understanding. The Agreement 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. Unless otherwise referenced and mutually agreed upon in a future Addendum to this Agreement or Order Form, neither Party shall be responsible for any click-through terms.

S. Severability. The provisions of the Agreement are severable and the Agreement shall be interpreted and enforced as if all completely invalid or unenforceable provisions were not contained in the Agreement, and partially valid and enforceable provisions shall be enforced to the extent that they are valid and enforceable.

T. Survival. All provisions of the Agreement which impose an obligation on either party after termination of the Agreement shall survive the termination of the Agreement and be binding on the parties.

U. 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 Agreement. In the event of any litigation to enforce or regarding a breach of the terms of the Agreement, the prevailing party shall be entitled to receive from the other reasonable attorneys’ fees and costs.

V. 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 Client must be sent to the address provided on page 1 of the initial Order Form and directed to the individual who executes the Agreement. Either party can change their address by providing written notice to the other party.

W. 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.

X. Execution. The Agreement, any Order Form or any Statement of Work may be executed in one or more counterparts. All of such counterparts shall constitute one and the same agreement and shall become effective when one or more of the counterparts of the Agreement have been signed by Client and delivered to SproutLoud. The Parties may execute the Agreement or any Statement of Work in any number of actual or telecopied counterparts, each of which when so executed and delivered to SproutLoud shall be an original.