Last updated: September 27, 2021
This Service Subscription Agreement (“Agreement”) is by and between Sprout Social, Inc. and its Affiliates (collectively, “Sprout Social”) and the subscriber set forth on the applicable Service Order (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Sprout Social’s subscription services and professional services. The parties agree as follows:
- “Account” means a unique account created for Subscriber to access the Subscription Services.
- “Add-On Services” means additional services that may be added to 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.
- “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Services (if applicable).
- “Effective Date” means the date the Service Order is executed by both parties.
- “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, 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, Employee 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 time-and-materials services provided to Subscriber, such as consulting services, onboarding support, etc.
- “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 the Service Order.
- “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 license numbers, employment records, physical or mental health condition or information, any information that would classify as “Special Categories of Information” under EU data protection laws, 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, Add-On Services and Professional Services.
- “Service Order” means a document setting out the specific 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 and/or any additional sites through which the Services are accessible in the future, as applicable.
- “Subscriber Data” means the data inputted to the Services by or on behalf of the Subscriber or the Clients for the purpose of using the Services or facilitating the Subscriber’s use of the Services.
- “Subscription Services” means the subscription services provided by Sprout Social to Subscriber, as identified in one or more Service Orders. The Subscription Services include the use of web-based applications, Mobile Applications (if applicable), technical support, and documentation such as user manuals and online help files.
- “Subscription Term” means the Subscription Term set forth in the applicable Service Order for the Services.
- Service Orders. Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. 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; Groups. Subscriber is responsible for managing access to its Account and for all information, data, text, messages or other materials that Subscriber’s users and its Clients post or otherwise transmit via the Services. Subscriber may permit its agents, contractors or service providers to access the Services through its Account, provided that such third party is using the Services on behalf of Subscriber, Subscriber ensures that any person or entity using its Account complies with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. 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. With respect to Subscriber’s users and individuals that interact or engage with Subscriber’s social media pages or profiles (including, fans, followers, and other social media audience members) (each, a “Social Media User,” and collectively, “Social Media Users”), Subscriber shall be responsible for establishing the lawfulness of processing under Article 6 of the General Data Protection Regulation 2016/679 (“GDPR”) and complying with all applicable laws related to privacy and data protection in respect of its use of the Services, its processing of personal data, and any processing instructions it issues to Sprout Social.
- Use Restrictions. Subscriber may use the Services solely for its own internal business operations or on behalf of Subscriber’s Clients. If the Service Order permits usage by Clients, Clients may use the Services solely for their own internal business operations. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, Subscriber and Clients will not, and will not permit or authorize third parties to: (a) license, 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; (e) use the Services or any of Sprout Social’s Confidential Information (as defined below) to compete with the Services; (f) modify, adapt or hack the Services to falsely imply any sponsorship or association with Sprout Social, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (h) use the Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, harassing or discriminatory, promotes unlawful violence, facilitates illegal activity or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software or that is otherwise illegal or causes damage or injury to any person or property; (i) attempt to use any method to gain unauthorized access to any paid features of the Sites; (j) use automated scripts to collect information from or otherwise interact with the Sites or the Services; (k) deep-link to the Sites for any purpose (other than Sprout Social’s home page), unless expressly authorized in writing by Sprout Social; (l) impersonate any other user of the Services; or (m) use the Services in violation of any Third-party Service Terms (as defined in Section 4.1). 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 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 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 3.3. 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 7 of this Agreement.
- Compliance with Laws. Subscriber and its Clients 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 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 or Clients, 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.
- Right to Suspend Services. Sprout Social may suspend Subscriber’s or any Client’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 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 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 performance 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 and its Clients will not have any rights to the Services except as expressly granted in this Agreement. Sprout Social reserves to itself and its licensors all rights to the Services not expressly granted to Subscriber in accordance with this Agreement. Sprout Social and its licensors retain all Intellectual Property Rights in and to the Services.
- Statistical Data. Subscriber acknowledges and agrees that Sprout Social may aggregate Subscriber Data and information resulting from Subscriber’s use of the Services in a manner that does not identify Subscriber (“Statistical Data”). On creation, Sprout Social shall own all Intellectual Property Rights in the Statistical Data and Sprout Social may use the Statistical Data for any lawful purpose, without a duty of accounting to Subscriber. Subscriber further acknowledges and agrees that Sprout Social may evaluate data and information resulting from Subscriber’s use of the Services in non-aggregated form (“Usage Data”) in order to provide the Services, including, but not limited to, for product improvement and customer service purposes. Any Usage Data that is considered “personal data” under the GDPR or “personal information” under the California Consumer Privacy Act shall be subject to the data processing addendum referenced in Section 8.3.
- Feedback. Sprout Social shall have a royalty-free, worldwide, transferable, sub- licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Sprout Social receives from Subscriber and Clients.
- Inbox Export Feature. With Sprout Social’s Inbox Export feature, Subscriber can export a copy of its Inbox from the Services (“Inbox Export”). The Inbox Export available on the Services may contain Confidential Information (as defined in Section 8) and/or personal information. By initiating an Inbox Export, Subscriber acknowledges and agrees that Sprout Social is not responsible for, and shall have no liability related to, the security of the information contained in the Inbox Export or 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 send the Inbox Export.
- Link Sharing. With Link Sharing, Subscriber can share content from Sprout Social via a private or publicly accessible link (“Link Sharing”). Link Sharing may contain certain features or functionality that enable Subscriber to export information, which may include Confidential Information (as defined in Section 8) and/or personal information, and send links to third-party recipients to access data from the Services. By enabling Link Sharing, Subscriber acknowledges and agrees that Sprout Social is not responsible for, and shall have no liability related to, the confidentiality and security of the information contained in such export or link or compliance with any applicable law of any federal, state, local, or foreign government or political subdivision thereof, including applicable privacy and data protection laws, as a result of fulfilling Subscriber’s request to send such export or link.
THIRD PARTY SERVICES
- Integration. The Services may contain features that enable various Third-party Services (such as a social media service like Facebook and Twitter) to be directly integrated into Subscriber’s Account. To take advantage of these features, Subscriber or Clients 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 and Clients are allowing Sprout Social to pass Subscriber and Client log-in information to the Third-party Service for this purpose.
- Ownership of Subscriber Data. As between the parties, the Subscriber and its licensors 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.
- Back-up of Subscriber Data. Sprout Social shall follow its archiving procedures for Subscriber Data as set out in its internal back-up policies as such policies may be amended by Sprout Social in its sole discretion from time to time. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy against Sprout Social shall be for Sprout Social to use commercially reasonable endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by Sprout Social in accordance with the archiving procedure described in its internal back-up policies or, where applicable, to reconstitute such Subscriber Data from the data made available by the relevant Third-party Service from which it was originally obtained. Sprout Social shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by Sprout Social to perform services related to Subscriber Data maintenance and back-up for which it shall remain fully liable under Section 14.3).
FEES AND PAYMENT
- Fees. Subscriber will pay Sprout Social the fees 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 term of any Service Order. Unless otherwise specified in the Service Order, the Services and any Add-On 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.
- 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: (i) Subscriber notifies Sprout Social of any such dispute in writing prior to the date such amounts would otherwise be due; (ii) Subscriber pays any undisputed amounts in accordance with this Section; and (iii) Subscriber cooperates with Sprout Social in promptly resolving such dispute. Apart from 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 judgment, interest will accrue each day at three percent (3%) 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. All fees stated or referred to in this Agreement or any Service Order are exclusive of VAT and any other sales tax, which shall be payable by the Subscriber at the applicable rate. Other than net income taxes imposed on Sprout Social, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “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.
TERM AND TERMINATION
- Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
- Service Order Term. Each Service Order will be valid for the term specified on such Service Order unless the Service Order is terminated earlier in accordance with the terms of this Agreement or the relevant Service Order.
- Termination for Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other party ceases or threatens to cease to carry on business, is unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, 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. 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, and (c) Subscriber will discontinue all use of the Services. If Subscriber terminates this Agreement or a Service Order for cause pursuant to Section 7.3, Subscriber will not be obligated to pay any additional 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 unused fees under the applicable Service Order. Except as otherwise provided herein, in all other instances of termination, Subscriber will not be entitled to a refund of any unused prepaid fees, and any and all unpaid fees that are outstanding under the applicable Service Order will become immediately due and payable. Upon termination of this Agreement or any Service Order, Sprout Social shall have the right to remove Subscriber’s Account information (including Subscriber Data) 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, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
CONFIDENTIALITY AND DATA PROTECTION
- Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of Sprout Social or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which (i) a reasonable person would consider confidential or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) 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; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
- Protection of Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall 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.
- Data Protection. Each of the parties will comply with the Sprout Social data processing addendum, available here, which is hereby incorporated into this Agreement.
WARRANTIES AND DISCLAIMER
- Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered 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 SET OUT IN THIS AGREEMENT, 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, FITNESS FOR A PARTICULAR PURPOSE, 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 UNAUTHORIZED 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
- Defense and Indemnification. Sprout Social will, at its expense, either defend Subscriber, Clients and their respective officers, directors, employees, agents, permitted successors and assigns from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber or any Client alleging that the use of the Services in accordance with this Agreement and any relevant Service Order infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify Subscriber and any Client from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. Sprout Social’s obligation under this section is contingent on : (a) Subscriber giving Sprout Social prompt written notice of the Claim; (b) Subscriber and the Clients granting Sprout Social full and complete control over the defense and settlement of the Claim; (c) Subscriber and the Clients providing assistance in connection with the defense and settlement of the Claim as Sprout Social may reasonably request, at Sprout Social’s cost; and (d) Subscriber and the Clients not taking any step involving any payment or admission of liability in relation to the Claim without Sprout Social’s prior written consent.
- 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 Right (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 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 performed at the time of termination.
- Exclusions from Obligations. Sprout Social will have no obligation under this Section 10 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 written instructions provided by Sprout Social, if the infringement or misappropriation would not have occurred but for such failure; or (e) 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.
- Limited Remedy. This Section 10 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 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 10.3, and indemnify Sprout Social 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. Subscriber’s obligation under this section is contingent on: (a) Sprout Social giving Subscriber prompt written notice of the Claim; (b) Sprout Social granting Subscriber full and complete control over the defense and settlement of the Claim; (c) Sprout Social providing assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request, at Subscriber’s cost; and (d) Sprout Social not taking any step involving any payment or admission of liability in relation to the Claim without Subscriber’s prior written consent.
LIMITATIONS OF LIABILITY
- Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 12.4, NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES INCLUDING UNDER SPROUT SOCIAL’S INDEMNITY AT SECTION 10.1, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY SERVICE ORDER OR FOR LOST PROFITS, REVENUE, BUSINESS, OR DATA (EXCEPT AS SET OUT IN SECTION 5.2); BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, IN EACH CASE WHETHER DIRECT OR INDIRECT AND 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 12.4, UNDER NO CIRCUMSTANCES INCLUDING UNDER SPROUT SOCIAL’S INDEMNITY AT SECTION 10.1, WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY SERVICE ORDER, (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 LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 6 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 12 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 11 (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 mobile device that is compatible with the mobile service. Sprout Social does not warrant that the Mobile Applications will be compatible with any mobile device. Subscriber acknowledges 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 (“Export Control Laws”). Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users 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).
- Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except 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.
- 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 all of Sprout Social’s obligations under this Agreement.
- Notices. Any notice under this Agreement must be sent to Sprout Social by email to firstname.lastname@example.org, 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 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 under 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 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.
- 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 material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
- 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 renders of no legal effect, all previous oral and written communications regarding these matters, all of which shall be governed by this Agreement. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract. Nothing in this Section 14.9 shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
- Variations. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. 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.
- Counterparts. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile.
- Third Party Rights. Other than, where applicable, in relation to the parties’ successors and permitted assigns and as expressly set out here, this Agreement is not intended to create any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person (including, Clients) who is not a party to this Agreement. The parties may vary or rescind this Agreement without the written consent of any person other than Sprout Social and the Subscriber.