Service Subscription Agreement

This Service Subscription Agreement (“Agreement”) is entered into by and between Sprout Social, Inc. (“Sprout Social”) and the subscriber set forth on the applicable Service Order (“Subscriber”). This Agreement and the applicable Service Order set forth the terms pursuant to which Subscriber and its Authorized Users will be permitted to use and access certain Services (as defined below), as such Services may be set forth in a Service Order. The parties agree as follows:

1. DEFINITIONS

1. 1.1. “Account” means a unique account created for Subscriber to access the Subscription Services.

2. 1.2. “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.

3. 1.3. “Authorized User(s)” means an individual who is authorized by Subscriber to use the Services under its Account, and who was provided a user identification and password by Sprout Social as directed by Subscriber. Authorized User(s) may include Subscriber’s Affiliates, agents, contractors, consultants, service providers, each as may be applicable.

4. 1.4. “Beta Services” means certain services, features, or functionalities in the Subscription Services made available to subscribers for internal evaluation and testing purposes only, which at Sprout Social’s sole discretion, may or may not be made generally available thereafter.

5. 1.5. “Claim” means any legal action, claim, demand, proceeding or suit.

6. 1.6. “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Services (if applicable).

7. 1.7. “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.

8. 1.8. “Documentation” means the online materials pertaining to the use of the Services available to Subscriber as specified in the Product-Specific Terms, which may be updated from time-to-time.

9. 1.9. “DPA” means the applicable Data Processing Addendum specified in the Product-Specific Terms.

10. 1.10. “Effective Date” means the date the Service Order is executed by both parties.

11. 1.11. “Feedback” means any suggestions, enhancement requests, recommendations or other feedback Subscriber provides to Sprout Social regarding the Services.

12. 1.12. “Group” means a unit of usage rights for the Subscription Services, if applicable. If applicable, Groups may be set for individual Clients, specific campaigns, etc.

13. 1.13. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, in each case, for their full term and together with any renewals or extensions.

14. 1.14. “Product-Specific Terms” means the additional terms and conditions required for Subscriber to access and use the respective Subscription Services. The Product-Specific Terms for the Sprout Social Subscription Services are located at sproutsocial.com/legal/sprout-product-terms/. The Product-Specific Terms for the Tagger Subscription Services are located at sproutsocial.com/legal/tagger-product-terms/.The Product-Specific Terms are incorporated into this Agreement to the extent they apply to the Services procured by Subscriber per an applicable Service Order.

15. 1.15. “Professional Services” means the services, as set forth in an applicable Service Order and/or statement of work, such as implementation, training, or other consulting services related to Subscriber’s use of the Subscription Services.

16. 1.16. “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services as specified in one or more applicable Service Orders and the applicable Documentation. Scope Limitations may include, but are not limited to, limits on the volume of data processed by or downloaded from the Subscription Services, and/or a maximum number of users, social media profiles, Groups, and/or brand keywords as set forth in a Service Order and/or Documentation, as applicable.

17. 1.17. “Services” means, collectively, the Subscription Services and Professional Services provided to Subscriber, as set forth in an applicable Service Order.

18. 1.18. “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.

19. 1.19. “Sites” means https://app.sproutsocial.com, https://advocacy.sproutsocial.com, https://app.taggermedia.com and/or any additional sites through which the Subscription Services are accessible in the future, as applicable.

20. 1.20. “Sprout Social Subscription Services” means the proprietary subscription services provided by Sprout Social, which include use of Sprout 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.

21. 1.21. “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.

22. 1.22. “Subscription Services” means the Sprout Social Subscription Services and/or the Tagger Subscription Services purchased by Subscriber per an applicable Service Order. Subscription Services do not include Professional Services or any Third-party Services.

23. 1.23. “Subscription Term” means the Subscription Term set forth in the applicable Service Order for the Services.

24. 1.24. “Tagger Subscription Services” means the proprietary subscription services provided by Tagger Media, Inc., an Affiliate of Sprout Social, which include use of Tagger’s web-based applications, technical support, and Documentation, each corresponding to the plan, features, and support package purchased by Subscriber per an applicable Service Order.

25. 1.25. “Taxes” means taxes, duties, and other governmental charges including, but not limited to, state and local sales, use, excise and value-added taxes (but excluding any taxes due on Sprout Social's income, property or employees).

26. 1.26. “Third-party Content” means content that the Services collect on Subscriber’s behalf from Third-party Services.

27. 1.27. “Third-party Service” means any third-party product, service, or software provided under separate terms and conditions used in conjunction with the Services, including but not limited to certain social media networks and other integration partners.

28. 1.28. “Third-party Service Terms” means the terms and conditions, acceptable use policies, privacy policies, or any other similar policies or terms of any Third-party Service as further defined in the Usage Policy.

29. 1.29. “Usage Policy” means Sprout Social’s Usage Policy applicable to the Services located at www.sproutsocial.com/legal/usage-policy/.

2. SERVICE ORDERS

1. 2.1. 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 is 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.

3. USE OF AND ACCESS TO THE SERVICES

1. 3.1. Use of the Services.

   1. (a) Right to Use Services. Subject to Subscriber’s compliance with this Agreement, which includes the applicable Product-Specific Terms and the terms of an applicable Service Order (including any Scope of Limitations set forth therein), Sprout Social grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term of each applicable Service Order to use the Services solely for its own internal business operations or on behalf of Subscriber’s Clients, if applicable. If the Service Order permits usage by Clients, such Clients may use the Services in accordance with the terms of this Agreement. Subscriber agrees that Sprout Social and its Affiliates (as applicable) can access Subscriber’s Account as necessary to provide Subscriber with the Services and any related support.

   2. (b) Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and immediately notify Sprout Social in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Sprout Social to prevent or terminate unauthorized 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.

2. 3.2. Access and Authorized Users.

   1. (a) Authorized Users. Subscriber is responsible for managing access to its Account, all activity conducted under its Account (regardless of knowledge or intent), and for all Subscriber Data that its Authorized Users post or otherwise transmit via the Subscription Services. Subscriber will ensure that each Authorized User is issued its own unique user identification and password and that credentials are not shared by more than one Authorized User. Subscriber: (i) will ensure that Subscriber has obtained all necessary permissions and authorizations required to provide its Authorized Users with access to the Services, (ii) agrees that its Authorized Users are using the Subscription Services on behalf of Subscriber, (iii) is responsible for its Authorized Users’ compliance with this Agreement, and (iv) remains responsible for any action taken using its Account.

   2. (b) Affiliates. Subject to this Agreement, Subscriber’s Affiliates may access and use the Subscription Services per the Scope Limitations specified in Subscriber’s Service Order. However, if Subscriber requires any separate billing or Accounts for any of its Affiliates, the Affiliate will need to purchase its own subscription to the Services by signing a separate Service Order between the Affiliate and Sprout Social for its own billing, access to, and use of the Services.

   3. (c) Clients; Groups. 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. If applicable, 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.

3. 3.3. Use Restrictions. Subscriber must use the Services in accordance with the terms herein, the applicable Product-Specific Terms, and the Usage Policy.

4. 3.4. Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations.

5. 3.5. 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 unauthorized use of the Services (including but not limited to a violation of any of the restrictions in this Section 3) or to prevent an ongoing violation of any applicable laws or regulations. Sprout Social will use commercially reasonable efforts to notify Subscriber prior to such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized 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 Subscriber’s use of the Services until it receives all amounts due.

6. 3.6. Intellectual Property Rights. Subject to the limited rights expressly granted in this Agreement, Sprout Social and its Affiliates and its and their 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 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 Subscriber has not collected, stored, or transferred any Subscriber Data to Sprout Social or its Affiliates in violation of any law, regulation, or contractual obligation applicable to Subscriber.

7. 3.7. Data Use. Subscriber acknowledges and authorizes Sprout Social’s and its Affiliates’ use of de-identified or de-identified and aggregated data: (a) to compile usage and performance information related to the Services; (b) to operate, improve, and support the Services; (c) to develop and publish benchmarks and similar informational reports; or (d) for any other lawful purpose. Sprout Social and its Affiliates will not disclose such data externally unless such data is de-identified so that it does not identify Subscriber, Subscriber’s users, or any other person. Sprout Social and its Affiliates will own all Intellectual Property Rights in such de-identified or de-identified and aggregated data and any data derived therefrom.

8. 3.8. Beta Services. From time to time, Sprout Social may offer Subscriber the opportunity to use and test Beta Services. Subscriber, at its sole discretion, may accept or decline to use Beta Services as presented in the Services. Beta Services are solely for internal, non-commercial evaluation and testing purposes and are not required to use the Services. Subscriber acknowledges and agrees that Subscriber is bound by any additional terms applicable to the Beta Services as provided by Sprout Social. Subscriber agrees that, as between Subscriber and Sprout Social, the Beta Services constitute Sprout Social’s Confidential Information. Sprout Social provides no warranties for any of the Beta Services and has no obligation to correct or repair any Beta Services. Sprout Social reserves the right to fully or partially discontinue Beta Services at any time and for any reason, temporarily or permanently, with or without notice. Sprout Social shall have no liability to Subscriber or any third party for any harm or damage arising out of or in connection with any of the Beta Services.

4. THIRD PARTY SERVICES

1. 4.1. Integrations with Third-party Services. The Services may contain links to, or otherwise may allow Subscriber to connect to and use, certain Third-party Services. To take advantage of such Third-party Services, Subscriber will be required to register for or log into such Third-party Service on their respective websites. By accessing or enabling a Third-party Service within the Services, Subscriber is authorizing a secure authentication token to pass from the Third-party Service to the Services for this express purpose.

2. 4.2. Use of Third-party Services. Subscriber acknowledges that any use of such Third-party Services 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 availability or content or the manner in which such Third-party Service handles Subscriber 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 practices or policies of such Third-party Service. Subscriber acknowledges that Sprout Social does not control the availability, features, or functionality of any Third-party Service and that such Third-party Service may change its availability, features, or functionality without any notice to Sprout Social or Subscriber. Sprout Social shall not be liable to Subscriber for any refunds or any damage or loss arising from, or in connection with, any unavailability or changes made by a Third-party Service or any resulting changes to the Services.

3. 4.3. Third-party Content. In providing Subscriber with the Services, Subscriber acknowledges and agrees that: (a) with respect to any Third-party Content, Subscriber acts as a data controller and Sprout Social and its Affiliates, as applicable, act as a data processor; (b) Subscriber authorizes and instructs Sprout Social and its Affiliates 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 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.

5. FEES AND PAYMENT

1. 5.1. 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 during an existing Subscription Term per a Service Order, then: (a) the fees for such additional or changed services will be charged at the price in such Service Order, or, if no price is stated in that Service Order, the then-current pricing generally available for Sprout Social customers for such additional or changed services will apply; and (b) the additional or changed Services will commence on the activation date listed in a new or amended Service Order. Any resulting change in fees shall be reflected in future invoices. Unless otherwise specified on a Service Order, all amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. 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.

2. 5.2. Renewal. 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.

3. 5.3. 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 Subscriber in good faith, any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month (determined and compounded daily from the date due until the date paid) or the highest rate permitted by applicable usury 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.

4. 5.4. Taxes. Subscriber is responsible for the payment of any 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 billingteam@sproutsocial.com before an invoice is generated. For Subscribers located outside of the United States, all amounts payable by Subscriber hereunder shall be grossed up for any withholding taxes imposed by any applicable foreign government on Subscriber’s payment of amounts to Sprout Social.

6. TERM AND TERMINATION

1. 6.1. 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.

2. 6.2. 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.

3. 6.3. 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 becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit 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, its Affiliates, or its current or prospective partners or customers.

4. 6.4. 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 Services will remain on said Third-party Services pursuant to the applicable Third-party Service Terms ).

7. CONFIDENTIALITY

1. 7.1. 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.

2. 7.2. 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.

3. 7.3. 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.

8. WARRANTIES AND DISCLAIMER

1. 8.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed by an authorized 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.

2. 8.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, SPROUT SOCIAL MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SPROUT SOCIAL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR LICENSORS. SPROUT SOCIAL AND ITS AFFILIATES RELY ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DO 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. SPROUT SOCIAL DOES NOT WARRANT THAT SUBSCRIBER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SPROUT SOCIAL DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES RELATED TO INAPPROPRIATE EQUIPMENT, INTERRUPTIONS, OR OTHER ISSUES RELATED TO THE INTERNET AND ELECTRONIC COMMUNICATIONS SERVICE PROVIDERS, OR ANY OTHER DELAY, ERROR, OMISSION, INTERRUPTION, DELETION, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, OR LOSS OF PERSONAL CONTENT ON THE SITES, ALL OF WHICH ARE NOT WITHIN SPROUT SOCIAL’S REASONABLE CONTROL. SPROUT SOCIAL DOES NOT PROVIDE ANY WARRANTIES, INDEMNITIES, OR REMEDIES FOR ANY BETA SERVICES OR ANY FEATURE OF THE SERVICES IN BETA. BETA SERVICES ARE OPTIONAL AND ARE USED AT SUBSCRIBER’S OWN RISK.

9. INDEMNIFICATION

1. 9.1. 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 expenses (including reasonable attorneys’ fees) finally awarded in any such Claim or paid to any third party to settle any such Claim.

2. 9.2. 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.

3. 9.3. 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 not contemplated in the Documentation 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 authorized in writing by Sprout Social where such infringement or misappropriation would not have occurred absent such modification.

4. 9.4. Limited Remedy. Sections 9.1 and 9.2 state Sprout Social’s (including its Affiliates) 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 Rights by the Services.

5. 9.5. 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 expenses (including reasonable 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.

6. 9.6. Indemnification Procedure. Each indemnifying party’s respective indemnification 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 defense 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.

10. LIMITATIONS OF LIABILITY

1. 10.1 Exclusion of Consequential and Related Damages. NEITHER PARTY NOR 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.

2. 10.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE MAXIMUM AGGREGATE LIABILITY OF SPROUT SOCIAL (INCLUDING ITS AFFILIATES) TO SUBSCRIBER (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 THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY SUBSCRIBER TO SPROUT SOCIAL UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL SETTLEMENT OR JUDGMENT IN AN ACTION). THE FOREGOING LIABILITY LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.

3. 10.3. 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 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

4. 10.4. State Prohibition of Limitation of Liability and Disclaimer of Implied Warranties. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

11. GENERAL

1. 11.1. Export Compliance and Anti-Corruption. The Services may be subject to export laws and regulations of the United States and other jurisdictions. 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).

2. 11.2. Federal Government End Use Provisions. If Subscriber is a U.S. federal government end user, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are provided to Subscriber with only those rights as provided under the terms and conditions of this Agreement.

3. 11.3. Data Processing Addendum. The DPA applicable to the Services is specified in the applicable Product-Specific Terms and shall be deemed incorporated by reference into this Agreement.

4. 11.4. 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 fulfill all of the assigning party’s obligations under this Agreement.

5. 11.5. Subcontractors. Sprout Social may utilize 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.

6. 11.6. Notices. Any notice under this Agreement must be sent to Sprout Social by email to legal@sproutsocial.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.

7. 11.7. 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.

8. 11.8. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Illinois, U.S.A., 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 federal, state, and local courts in Cook County, Illinois in connection with any action arising out of or in connection with this Agreement.

9. 11.9. 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.

10. 11.10. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach of this Agreement. 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.

11. 11.11. 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.

12. 11.12. Entire Agreement. This Agreement incorporates the applicable Product-Specific Terms, DPA, and Service Orders, and 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. Subscriber agrees to the terms and conditions of this Agreement by signing the Service Order that references this Agreement or it may be executed in multiple counterparts via electronic or handwritten signature.

13. 11.13. Amendment to this Agreement. Sprout Social may amend this Agreement (which may include modifications or updates to the Product-Specific Terms) from time to time, in which case the new Agreement will supersede the prior version. Sprout Social will notify (notice in accordance with Section 11.6 or within the application to be deemed sufficient) Subscriber of any material changes and direct Subscriber to the latest version of this Agreement or Product-Specific Terms. Sprout Social will not be bound by, and expressly 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, procurement portal, confirmation, correspondence, or otherwise, regardless of Sprout Social’s failure to object to such terms, provisions or conditions.

14. 11.14. Feedback. Subscriber may voluntarily provide Sprout Social with Feedback in connection with its use of the Services, but it has no obligation to do so. If Subscriber chooses to provide Feedback regarding the Services, Subscriber grants Sprout Social a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use the Feedback to develop and improve the Services or otherwise use the Feedback. All Feedback is provided “AS IS” and Sprout Social will not publicly identify Subscriber as the source of Feedback without Subscriber’s permission.

15. 11.15. Future Functionality. Subscriber agrees that its purchase and subscription hereunder is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Sprout Social or its Affiliates regarding future functionality or features.

16. 11.16. Survival. Section 3 (Use of and Access To 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 (Indemnification), Section 10 (Limitation of Liability), and Section 11 (General) will survive any termination of this Agreement.