These Terms and Conditions (“Terms”) constitute the agreement between Sparrow Marketing, Inc, a Delaware corporation (“Company”) and the customer (“Customer”) that is identified in the quote or proposal to which these Terms are attached (“Proposal”) (the Proposal and the Terms shall be collectively referred to as the “Agreement”). Acceptance of the Proposal of the Services (as defined below) or payment of an invoice shall constitute acceptance of the Terms by the Customer and no additional or differing terms, conditions or limitations of liability shall have any effect unless agreed to, in writing, by the Company.
1. Services. Company hereby agrees to provide the services described in the Proposal (the “Services”).
2. Prices and Taxes. Customer agrees to pay the Company the prices set forth in the Proposal. Customer may not set-off disputed amounts owed to the Company against undisputed amounts payable to the Company under this Agreement or any other agreement with the Company. In the event that taxes, tariffs or duties are assessed against the Company as a result of the Services, Customer shall reimburse the Company for any such amounts paid by Company or provide the Company with valid tax exemption certificates with respect thereto.
3. Payment Terms. Each invoice shall be due and payable in full within thirty (30) days of the date of such invoice. In the event any invoice is not paid when due, the Company may, at its sole discretion and without limitation as to its other remedies, suspend furnishing any further goods or services. All past due invoices shall accrue interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by law. Customer shall pay the Company for all of the Company’s costs and expenses, including, but not limited to, reasonable attorneys’ fees, in connection with collection or pursuit of any monies owed to the Company hereunder.
4. License. Certain portions of the Services will be provided via use of the Company’s websites, applications, services and/or mobile applications (collectively, the “Program”). Subject to Customer’s compliance with these Terms, this Agreement grants Customer a revocable, non-exclusive, non-transferable license (without the right to sublicense) to access, participate in and use the Program. Customer agrees that it obtains no rights other than the rights and licenses expressly granted in this Agreement.
5. Accounts and Security. In connection with the Services and use of the Program, Customer may be required to provide certain information related to Customer or other user online accounts (each, an “Account”). Customer represents that all Account information will be current, complete and accurate. By entering Account information, Customer represents and warrants that Customer has the authority to use such Account information and provide it to Company. Customer shall be responsible for maintaining the confidentiality of any user names and passwords that are used in connection with each Account. Customer will not permit any use of the Program that would damage, interfere with or unreasonably overload the Program.
6. No Guaranty of Results. In providing the Services, Company does not provide any representation or warranties related to the quality or acceptability of the results. Customer acknowledges that, in connection with the Services, Customer may receive results (in the form of new online followers or other online connections) that are undesirable to Customer (“Undesirable Connections”). Customer shall be solely responsible for monitoring all Account results and shall take any and all steps desired by Customer to disconnect from all Undesirable Connections. Notwithstanding the foregoing, in the event that Customer notifies the Company of Undesirable Connections, the Company will use reasonable efforts to work with the Customer to obtain results that are more consistent with Customer’s desired goals.
7. Intellectual Property. Notwithstanding the license rights granted to Customer pursuant to this Agreement, Customer acknowledges that all intellectual property rights, including logos, trademarks, service marks, names, patents, copyrights, trade secrets and other confidential information, together with goodwill associated therewith (collectively, “Intellectual Property Rights”) in and to the Program and any work product or other materials related thereto are owned by, and shall remain the property of, the Company. Customer shall not claim any interest in the Intellectual Property Rights. Customer further represents and warrants to the Company that: (i) it is free to disclose, without any obligation to, or violation of any right of, any third party, all information and data disclosed to the Company through the Services covered by this Agreement including but not limited to, information related to any and all Accounts.
8. Force Majeure. In the event that the Company is prevented from performing, or is unable to perform, any of its obligations under this Agreement by circumstances beyond its reasonable control, including, without limitation, fire, explosion, power outages, Internet outages, cyber attacks or viruses, acts of God, war or other hostilities, civil commotion, and domestic or foreign governmental acts, orders or regulations (“Force Majeure Event”), and if the Company has used commercially reasonable efforts to avoid such occurrence and minimize its duration and has given prompt written notice to Customer thereof, then the Company’s failure to perform hereunder shall be equitably excused and the time for performance shall be equitably extended for the period of delay or inability to perform due to such Force Majeure Event.
9. Limitation of Liability. THE COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES THAT CUSTOMER HAS ACTUALLY PAID TO THE COMPANY UNDER THE APPLICABLE PROPOSAL. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR PUNITIVE DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES OR FOR DAMAGES RESULTING FROM LOSS OF PROFITS, LOSS OF DATA, OR INTERRUPTION OF BUSINESS REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE) AND REGARDLESS OF WHETHER THE COMPANY WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10. Independent Contractor Status. The Company will provide services as an “independent contractor” as that term is defined by the U.S. Internal Revenue Code. The parties are not partners. Neither party is an agent of the other and neither may bind the other party to contracts with third parties.
11. Indemnification. The Customer shall indemnify, defend and hold the Company harmless from any and all actual costs or expenses (including, but not limited to reasonable attorneys’ fees and amounts paid in settlement of claims) related to any actual or threatened claim which may be made against the Company as a result of the Customer not actually being authorized by the Account owner to participate in the Program. The indemnification requirements in this section shall not apply if such liability arises as a direct result of, and then, only to the extent of, the gross negligence or willful misconduct of the Company or its employees.
12. Termination. Once accepted, Proposals are not cancelable without the prior written consent of the Company. Notwithstanding the foregoing, both Customer and Company shall have the right to terminate the Agreement by providing no less than thirty (30) days notice to the other party. Upon termination, Customer shall immediately pay Company all outstanding amounts due under the Agreement for Services provided up to the date of termination.
13. Miscellaneous. This Agreement contains the entire agreement between the parties with respect to the subject matter herein and supersedes all prior or contemporaneous agreements, discussions or representations, oral or written with respect to such subject matter. The Company hereby rejects any terms on Customer’s website or printed documents that add to, vary from or conflict with this Agreement. In the event of a conflict between the terms of a Customer document and this Agreement, the Customer and the Company agree that this Agreement shall control. No waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. If for any reason any provision hereof is determined by a court of competent jurisdiction to be unenforceable or invalid, such provision shall be deemed severed from this Agreement and the remaining provisions shall be carried out with the same force and effect as if the severed provision or part thereof had not been a part of this Agreement. There are no third party beneficiaries to this Agreement. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to the choice of law provisions thereof. The parties consent to the personal jurisdiction and exclusive venue of the state and federal courts located in Hennepin County, Minnesota with respect to all disputes arising hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. The descriptive headings for the several sections of this Agreement are inserted for convenience only and not to confine or limit any of the terms or provisions hereof.