Sprout Social, Inc. Service Subscription Agreement (UK)
Last updated: October 25, 2022
This Service Subscription Agreement (“Agreement”) is by and between Sprout Social, Inc. (“Sprout Social”) and the subscriber set forth on the applicable Service Order (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber and its Affiliates will be permitted to use and access certain of Sprout Social’s Services (as defined below), as may be applicable. The parties agree as follows:
- “Account” means a unique account created for Subscriber to access the Subscription Services.
- “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- “Claim” means any legal action, claim, demand, proceeding or suit.
- “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Services (if applicable).
- “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or to which the other party may have access, which: (a) a reasonable person would consider confidential or (b) is marked “confidential” or “proprietary” or some similar designation by the disclosing party.
- “Documentation” means the materials available for the use of the Services available to Subscriber at https://support.sproutsocial.com/hc/en-us, which may be updated from time-to-time.
- “DPA” means the Sprout Social Data Processing Addendum available at https://media.sproutsocial.com/uploads/Downloadable-Customer-DPA.pdf.
- “Effective Date” means the date the Service Order is executed by both parties.
- “Feedback” means any suggestions, enhancement requests, recommendations or other feedback Sprout Social receives from Subscriber.
- “Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc.
- “Intellectual Property Rights” means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade marks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights), rights in know-how and the ‘look and feel’ of any website or service, the right to sue for passing off or unfair competition, moral rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions.
- “Mobile Application” means each copy of the Sprout Social mobile application, Advocacy mobile application and/or any other mobile application provided by Sprout Social (as upgraded from time to time) downloaded by Subscriber’s users and installed on a mobile device approved by Subscriber for business use.
- “Professional Services” means services, as set forth in an applicable Service Order, such as implementation, training, or other consulting services related to Subscriber’s use of the Subscription Services.
- “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of users, social media profiles, brand keywords or such other limits as set forth in a Service Order and/or Documentation, as applicable.
- “Sensitive Information” means any passwords, credit card or debit card information, personal financial account information, personal health information, social security numbers, passport numbers, driver’s licence numbers, employment records, physical or mental health condition or information, information on racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation, or any other information that would be subject to Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information.
- “Services” means, collectively, Subscription Services and Professional Services.
- “Service Order” means a document with the details of one or more specific Services to be provided to Subscriber, which is agreed upon and signed by both parties.
- “Sites” means https://app.sproutsocial.com, https://advocacy.sproutsocial.com, and/or any additional sites through which the Subscription Services are accessible in the future, as applicable.
- “Subscriber Data” means the data inputted to the Services by or on behalf of the Subscriber for the purpose of using the Services or facilitating Subscriber’s use of the Services.
- “Subscription Services” means the proprietary subscription services, which include use of Sprout’s Social’s web-based applications, Mobile Applications (if applicable), technical support, and Documentation, each corresponding to the plan, features, and support package purchased by Subscriber per an applicable Service Order. Subscription Services do not include Professional Services or any Third-party Services.
- “Subscription Term” means the Subscription Term set forth in the applicable Service Order for the Services.
- “Taxes” means taxes, duties, and other governmental charges.
- “Third-party Content” means content that Sprout Social collects on Subscriber’s behalf from Third-party Services.
- “Third-party Service” means any third-party product, service or software provided under separate terms and conditions used in conjunction with the Services, including certain social media networks and other integration partners.
- Service Orders. Each Service Order incorporates the terms of this Agreement. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order. Sprout Social will provide, and Subscriber will pay for, all Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.
USE OF THE SERVICES
Access and Users; Affiliates, Clients and Groups.
- Subscriber is responsible for managing access to its Account and for all information, data, text, messages or other materials that Subscriber’s users post or otherwise transmit via the Subscription Services. Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. Subscriber may permit its Affiliates, Clients, agents, contractors or service providers to access the Subscription Services through its Account, provided that (i) Subscriber has obtained all necessary authorizations and consents from such parties, (ii) such parties are using the Subscription Services on behalf of Subscriber, (iii) Subscriber ensures that any person or entity using its Account complies with the terms of this Agreement, and (iv) Subscriber remains responsible for any action taken using its Account.
- Subject to this Agreement, Subscriber’s Affiliates may access and use the Subscription Services per the Scope Limitations specified in Subscriber’s Service Order. Any separate billing or Accounts for any Affiliates of Subscriber will require a separate purchase and Service Order between the Affiliate and Sprout Social.
- If Subscriber uses the Services on behalf of its Clients or if it grants access to the Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent.
- Use Restrictions. Subscriber may use the Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, Subscriber will not, and will not permit or authorise third parties to: (a) licence, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Services; (d) reverse engineer any element of the Services, or use the Services or any of Sprout Social’s Confidential Information to compete with the Services; (e) modify, adapt or hack the Services to falsely imply any sponsorship or association with Sprout Social, or otherwise attempt to gain unauthorised access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorised access to any paid features of the Sites; (i) use automated scripts to collect information from or otherwise interact with the Sites or the Services; (j) deep-link to the Sites for any purpose (other than Sprout Social’s home page), unless expressly authorised in writing by Sprout Social; (k) impersonate any other user of the Services; or (l) use the Services in violation of any Third-party Service Terms. Subscriber agrees not to use, and not to knowingly display, distribute, or otherwise make content or information derived from the Services available to any entity for the purpose of: (i) conducting or providing surveillance or gathering intelligence, including but not limited to investigating or tracking individual social media users or their content; (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (iii) conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual for any unlawful or discriminatory purpose or in a manner that would be inconsistent with the individual social media users’ reasonable expectations of privacy; or (iv) targeting, segmenting, or profiling individuals based on sensitive personal information, including health (e.g., pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law. Sprout Social shall have the right to terminate this Agreement and any Service Order immediately if Sprout Social reasonably suspects that Subscriber has violated any of the restrictions in this Section 3. If Subscriber is a government entity or an entity performing services on behalf of a government entity whose primary function or mission includes conducting surveillance or gathering intelligence, Subscriber may not access Twitter content through the Services unless otherwise expressly pre-approved by Sprout Social and Twitter. Sprout Social and Twitter reserve the right to approve each of Subscriber’s (or Subscriber’s Clients’ or Subscriber’s Affiliates’) use cases for the Services if Subscriber is a government entity or an entity performing services on behalf of a government entity, and failure to obtain such approval may result in suspension and potential termination pursuant to this section and Section 6 of this Agreement.
- Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
- Prohibition on Sensitive Information. Subscriber represents and warrants that neither Subscriber nor Subscriber’s users will transmit, upload, collect, manage, or otherwise process any Sensitive Information through the Services. Subscriber acknowledges and agrees that Sprout Social will not be liable for any damages that may result from Subscriber’s use of the Services in transmitting, uploading, collecting, managing, or otherwise processing any Sensitive Information.
- Protection Against Unauthorised Use. Subscriber will use reasonable efforts to prevent any unauthorised use of the Services and immediately notify Sprout Social in writing of any unauthorised use that comes to Subscriber’s attention. If there is unauthorised use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorised use. Subscriber will cooperate and assist with any actions taken by Sprout Social to prevent or terminate unauthorised use of the Services. The Services support log-ins through two-factor authentication. Subscriber acknowledges that Sprout Social will not be responsible for any damages, losses, or liability that would have been prevented by the implementation of such two-factor authentication by Subscriber or Subscriber’s users.
- Right to Suspend Services. Sprout Social may suspend Subscriber’s or any Client’s or Affiliate’s use of the Services if Sprout Social reasonably and in good faith believes such suspension is necessary to prevent unauthorised use of the Services or to prevent an ongoing violation of any applicable laws or regulations. Sprout Social will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorised use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, Sprout Social may, without limitation to any of its other rights or remedies, suspend use of the Services until it receives all amounts due.
- Intellectual Property Rights. Sprout Social grants to Subscriber a limited right to use the Services under this Agreement. Subscriber will not have any rights to the Services except as expressly granted in this Agreement. Sprout Social and its licensors retain and reserve all rights, including, but not limited to, Intellectual Property Rights, in and to the Services. As between the parties, the Subscriber shall own all right, title and interest in and to all of the Subscriber Data. Subscriber shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data and the means by which it acquired the Subscriber Data. Subscriber hereby represents and warrants that any Subscriber Data has not been collected, stored, and transferred to Sprout Social in violation of any law, regulation, or contractual obligation applicable to Subscriber.
- Feedback. If Subscriber chooses to provide Feedback, Sprout Social shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to incorporate into the Services or otherwise use any Feedback.
- Inbox Export and Link Sharing. Should Subscriber choose to export a copy of Subscriber’s inbox or share any public or private links via the Subscription Services, Subscriber acknowledges and agrees that Sprout Social is not responsible for, and shall have no liability related to: (a) the security of the information contained in (i) any exported copy of Subscriber’s Sprout Social inbox or (ii) any public or private link shared through the Subscription Services; or (b) compliance with any applicable law of any federal, state, local, or foreign government or political subdivision thereof, including applicable privacy law, as a result of fulfilling Subscriber’s request to (i) export a copy of Subscriber’s Sprout Social inbox or (ii) share any public or private link through the Subscription Services.
THIRD PARTY SERVICES
- Use of Third-party Services. The Services may contain links to, or otherwise may allow Subscriber to connect to and use, certain Third-party Services. Subscriber acknowledges that any use of such Third-party Service is governed solely by the applicable Third-party Service Terms, and Sprout Social does not endorse, is not responsible for, and makes no representations as to such Third-party Service, its content or the manner in which such Third-party Service handles Subscriber’s data. Sprout Social is not liable for any damage or loss arising from or in connection with Subscriber’s access or use of any such Third-party Service, or Subscriber’s reliance on the privacy practices or other policies of such Third-party Service. Subscriber acknowledges that Sprout Social does not control the features and functionality of any Third-party Service and that such Third-party Service may change its features and functionality without any notice to Sprout Social. Sprout Social shall not be liable to Subscriber for any refunds or any damage or loss arising from or in connection with any changes made by a Third-party Service or any resulting changes to the Services.
- Third-party Content. In providing Subscriber with the Services, Subscriber acknowledges and agrees that: (a) Subscriber acts as a data controller and Sprout Social acts as a data processor with respect to any Third-party Content; (b) Subscriber authorises and instructs Sprout Social to enable integrations with Third-party Services, to enter into Third-party Service Terms for the purpose of enabling such integrations and to process any personal data accessed via such integrations on Subscriber’s behalf; and (c) Subscriber is responsible for complying with any applicable Third-party Service Terms (including, but not limited to, any applicable developer policies) and any applicable privacy laws in the creation or use of Third-party Content.
- Integration. The Services contain features that enable various Third-party Services to be directly integrated into Subscriber’s Account. To take advantage of these features, Subscriber will be required to register for or log into such Third-party Service on their respective websites. By accessing/enabling a Third-party Service within the Services, Subscriber is authorising a secure authentication token to pass from the Third-party Service to the Services for this express purpose.
FEES AND PAYMENT
- Fees. Subscriber will pay Sprout Social the fees for the Services as specified in each applicable Service Order. If Subscriber orders additional Services or changes the Services it is receiving, the fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and commence on the activation date listed in the Service Order. Any resulting change in fees shall be reflected in future invoices. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars, unless otherwise stated in a Service Order. Except as otherwise provided in this Agreement, fees are non-refundable. There are no refunds or credits for partial months of Services, plan downgrades, or refunds for unused time if Subscriber closes its Account before the end of the Subscription Term of any Service Order. Unless otherwise specified in the Service Order, the Services purchased by Subscriber during the Subscription Term will automatically renew for additional periods equal to the length of the Subscription Term, unless either party provides written notice to the other party at least thirty (30) days prior to the expiration of the Subscription Term. Sprout Social reserves the right to increase fees upon renewal; provided, however, that such increase shall not exceed 7% over the fees related to the immediately preceding Subscription Term unless Sprout Social provides notice of different pricing at least sixty (60) days prior to the applicable renewal Subscription Term.
- Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that: (a) Subscriber notifies Sprout Social of any such dispute in writing prior to the date such amounts would otherwise be due; (b) Subscriber pays any undisputed amounts in accordance with this Section; and (c) Subscriber cooperates with Sprout Social in promptly resolving such dispute. Except for any amounts disputed by the Subscriber in good faith, if any amount is not paid when due, the Subscriber will pay interest on the overdue sum from the due date until payment of the overdue sum whether before or after judgement, and interest will accrue each day at three percent (3%) a year over the Bank of England’s base rate from time to time or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Sprout Social to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
- Taxes. Other than net income taxes imposed on Sprout Social, Subscriber will bear all applicable Taxes resulting from its purchase or use of the Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order or invoice. Applicable taxes will be presented on an invoice unless Subscriber provides a current and valid applicable tax exemption certificate to firstname.lastname@example.org before an invoice is generated.
TERM AND TERMINATION
- Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are in effect, unless this Agreement is terminated earlier as permitted herein.
- Service Order Term. Each Service Order will be valid for the term specified on such Service Order unless the Service Order is terminated earlier as permitted herein.
- Termination for Cause. Either party may terminate a Service Order or this Agreement: (a) upon thirty (30) days written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period, or (b) immediately upon written notice if the other party (i) ceases or threatens to cease to carry on business, (ii) is unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, (iii) has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, or (iv) enters any composition with creditors generally (or a meeting of creditors of that person is held or an arrangement or composition with or for the benefit of its creditors is proposed), or an order is made or resolution passed for that person to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction), or that person undergoes any similar or equivalent process in any jurisdiction or undergoes any other arrangement which affects the rights of creditors. If Subscriber terminates this Agreement or a Service Order for cause pursuant to this Section 6.3, Subscriber will not be obligated to pay any unpaid amounts specified in the Service Order following the effective date of termination, and Sprout Social shall provide Subscriber with a prorated refund of any prepaid fees for unused Services under the applicable Service Order. Sprout Social shall have the right to terminate a Service Order or this Agreement if Sprout Social reasonably determines that Subscriber is acting or has acted in a way that could present substantial reputational harm to Sprout Social or its current or prospective partners or customers.
- Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason: (a) Subscriber will pay to Sprout Social any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; (c) Subscriber’s access to and use of the Services will cease; and (d) except in the event that Subscriber terminates pursuant to Section 6.3(a) or Sprout Social terminates pursuant to Section 9.2, Subscriber will not be entitled to a refund of any prepaid fees for unused Services, and any and all unpaid fees that are outstanding under the applicable Service Order will remain due and payable. Upon termination of this Agreement or any Service Order, Sprout Social shall have the right to remove Subscriber’s Account information and Account settings after thirty (30) days, and Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites will remain on said third-party websites pursuant to those website’s terms and conditions).
- Protection of Confidential Information. The receiving party shall: (a) not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information for any purpose outside of the scope of this Agreement and (b) take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
- Exclusions to Confidential Information. Confidential Information shall not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (c) the receiving party rightfully knew or possessed prior to receipt from the disclosing party under this Agreement; (d) is obtained by the receiving party from a third party without a breach of confidentiality obligations; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- Compelled Disclosure. The receiving party shall not be in violation of its confidentiality obligations for disclosing Confidential Information as required by applicable law or regulation, or in response to a valid order by a court or other governmental body, as long as the receiving party provides the disclosing party (to the extent legally permissible) with prior written notice of the disclosure to permit the disclosing party to seek confidential treatment of that information and will limit such disclosure to what is required by law or legal order.
WARRANTIES AND DISCLAIMER
- Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed by an authorised representative and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, ALL WARRANTIES, TERMS, CONDITIONS AND UNDERTAKINGS, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION BY STATUTE, CUSTOM OR USAGE, A COURSE OF DEALING, OR COMMON LAW) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. SPROUT SOCIAL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. SPROUT SOCIAL RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPROUT SOCIAL DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORISED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITES NOT WITHIN SPROUT SOCIAL’S REASONABLE CONTROL.
INTELLECTUAL PROPERTY INFRINGEMENT
- Sprout Social Indemnification. Sprout Social will, at its expense, defend Subscriber and Subscriber’s officers, directors, employees, agents, permitted successors and assigns from or settle any Claim brought by a third party against Subscriber alleging that Subscriber’s use of the Services as permitted herein infringes or misappropriates any Intellectual Property Rights of such third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim.
- Infringement Remedy. If Subscriber is enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party Intellectual Property Rights (including a Claim), or if Sprout Social reasonably determines that such prohibition is likely, then Sprout Social will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If Sprout Social determines that the foregoing remedies are not commercially reasonable, then Sprout Social may terminate the impacted Service Order, or a portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by Sprout Social for any Services that have not yet been used or provided upon the effective date of termination.
- Exclusions from Obligations. Sprout Social will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Subscriber for purposes not intended or outside the scope of the rights granted to Subscriber under this Agreement; (d) Subscriber’s failure to use the Services in accordance with this Agreement or any written instructions provided by Sprout Social, if the infringement or misappropriation would not have occurred but for such failure; (e) Subscriber Data, Third-party Content or the Third-party Services; or (f) any modification of the Services not made or authorised in writing by Sprout Social where such infringement or misappropriation would not have occurred absent such modification.
- Limited Remedy. This Section 9 states Sprout Social’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party Intellectual Property Right by the Services.
- Subscriber Indemnification. Subscriber will defend Sprout Social and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon: (a) Subscriber’s breach of any of its obligations under this Agreement; (b) Subscriber’s use of a Third-party Service; or (c) any of the exclusions stated in Section 9.3, and indemnify Sprout Social and its Affiliates from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim.
- Indemnification Procedure. The indemnifying party’s obligations herein are subject to receiving: (a) prompt notice of the Claim (provided that the indemnified party’s failure to provide such prompt notice will not release the indemnifying party from its indemnification obligations except to the extent the indemnifying party is materially prejudiced thereby); (b) sole control over the defence and settlement of the Claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnified party may participate in the Claim with its own counsel and at its own expense.
LIMITATIONS OF LIABILITY
- Exclusion of Consequential and Related Damages. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
- Cap on Liability. SUBJECT TO SECTION 11.4, UNDER NO CIRCUMSTANCES (INCLUDING UNDER SPROUT SOCIAL’S INDEMNITY AT SECTION 9.1) WILL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY (INCLUDING ITS AFFILIATES) TO THE OTHER PARTY (INCLUDING ITS AFFILIATES) OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED AN AMOUNT EQUAL TO THE ANNUAL CHARGES PAID OR PAYABLE UNDER THE APPLICABLE SERVICE ORDER AT THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIABILITY LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SPROUT SOCIAL TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Liability that cannot be excluded or limited. Nothing in this Agreement and any Service Order shall limit the Subscriber’s liability under Section 10.1 (Subscriber Indemnification) or either party’s liability for fraud, death or personal injury arising from that party’s negligence or for any other liability to the extent it cannot be excluded under applicable law.
- Additional Mobile Application Terms. Use of a Mobile Application requires a compatible mobile device. Sprout Social does not warrant that the Mobile Applications will be compatible with any mobile device. Subscriber acknowledges and agrees that Sprout Social may from time to time issue upgraded versions of the Mobile Applications and may automatically electronically upgrade the version of the Mobile Applications. Subscriber consents to such automatic upgrading. Standard carrier data charges may apply to use of the Mobile Applications. The additional terms and conditions set forth here shall apply with respect to any Mobile Application that Sprout Social provides for use.
- Export Compliance and Anti-Corruption. The Services may be subject to export laws and regulations of the United States and other jurisdictions. The Subscriber shall comply with all applicable export control and trade embargo laws, rules and regulations. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users (including Clients or Affiliates) to access or use the Services in a U.S.-embargoed country or in violation of any U.S. or other applicable export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
- Third Party Rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Data Processing Addendum. The parties agree to enter into the DPA, which shall be deemed incorporated by reference into this Agreement.
- Assignability. Neither party may assign its right, duties, or obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed; provided that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfil all of the assigning party’s obligations under this Agreement.
- Subcontractors. Sprout Social may utilise a subcontractor or other third party to perform its duties under this Agreement so long as Sprout Social remains responsible for the acts and omissions of such subcontractors and for all of Sprout Social’s obligations under this Agreement.
- Notices. Any notice under this Agreement must be sent to Sprout Social by email to email@example.com, with a duplicate copy sent via registered mail (return receipt requested) to: Sprout Social, Inc., Attention: Legal Department; 131 S. Dearborn Suite 700, Chicago, Illinois 60603. Any notices under this Agreement that are sent to Subscriber shall be sent via email to the current Account owner named under Subscriber’s Account. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier or sending an email.
- Force Majeure. Neither party will be liable for, or be considered to be in breach of or default of this Agreement on account of, any delay or failure to perform as required by this Agreement (except for Subscriber’s obligations to make payments to Sprout Social hereunder) as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of England, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the courts of England and Wales in connection with any action arising out of or in connection with this Agreement.
- Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Subscriber and Sprout Social as a result of this Agreement or use of the Services.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any use of the Services under this Agreement is found to be illegal or invalid, Sprout Social may immediately terminate Subscriber’s use of the affected Services.
- Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous representations and oral and written communications regarding these matters. Sprout Social may amend this Agreement from time to time, in which case the new Agreement will supersede the prior version. Sprout Social will notify (notice in accordance with Section 13.6 or within the application to be deemed sufficient) Subscriber of material changes and direct Subscriber to the latest version of this Agreement. Sprout Social will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of Sprout Social’s failure to object to such terms, provisions or conditions. This Agreement may be executed in multiple counterparts and may be signed electronically or via facsimile.
- Survival. Section 3 (Use of the Services), Section 4 (Third Party Services), Subscriber’s payment obligations under Section 5 (Fees and Payment), Section 6 (Term and Termination), Section 7 (Confidentiality), Section 8 (Warranties and Disclaimer), Section 9 (Intellectual Property Infringement), Section 10 (General Indemnification), Section 11 (Limitation of Liability), and Section 13 (General) will survive any termination of this Agreement.