Sparrow Charts General Terms and Conditions
- Services. Company hereby agrees to provide the services described in the Proposal (the “Services”) which Services include the use of Company’s analytics and reporting services (the “Product”).
- Prices and Taxes. Customer agrees to pay the Company the fees set forth in the Proposal. Customer may not set-off disputed amounts owed to the Company against undisputed amounts payable to the Company under this Agreement or any other agreement with the Company. In the event that taxes, tariffs or duties are assessed against the Company as a result of the Services, Customer shall reimburse the Company for any such amounts paid by Company or provide the Company with valid tax exemption certificates with respect thereto.
- Payment Terms. Each invoice shall be due and payable in full within thirty (30) days of the date of such invoice. In the event any invoice is not paid when due, the Company may, at its sole discretion and without limitation as to its other remedies, suspend furnishing any further goods or services. All past due invoices shall accrue interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by law. Customer shall pay the Company for all of the Company’s costs and expenses, including, but not limited to, reasonable attorneys’ fees, in connection with collection or pursuit of any monies owed to the Company hereunder.
- License. Certain portions of the Services will be provided via use of the Company’s websites, applications, services and/or mobile applications (collectively, the “Program”). Subject to Customer’s compliance with these Terms, this Agreement grants Customer a revocable, non-exclusive, non-transferable license (without the right to sublicense) to access, participate in and use the Program. Customer agrees that it obtains no rights other than the rights and licenses expressly granted in this Agreement.
- Accounts and Security. In connection with the Services and use of the Program, Customer may be required to provide certain information related to Customer or other user online accounts (each, an “Account"). Customer represents that all Account information will be current, complete and accurate. By entering Account information, Customer represents and warrants that Customer has the authority to use such Account information and provide it to Company. Customer shall be responsible for maintaining the confidentiality of any user names and passwords that are used in connection with each Account. Customer will not permit any use of the Program that would damage, interfere with or unreasonably overload the Program.
- No Responsibility for Content. In providing the Services, Company is simply reporting on online activity that is being undertaken by the Customer and/or Customer’s clients. Accordingly, the Company does not accept any responsibility for the content of any activity that is summarized in the reporting product. Customer shall be solely responsible for monitoring all Accounts and for any content posted by Customer.
- Intellectual Property. Notwithstanding the license rights granted to Customer pursuant to this Agreement, Customer acknowledges that all intellectual property rights, including logos, trademarks, service marks, names, patents, copyrights, trade secrets and other confidential information, together with goodwill associated therewith (collectively, "Intellectual Property Rights") in and to the Program and any work product or other materials related thereto are owned by, and shall remain the property of, the Company. Company grants Customer a limited license to use the Product, including the right to attach Customer’s own intellectual property marks to the reports created by the Product so that Customer can deliver customized reports to its clients. Except for the limited license rights granted herein, Customer shall not claim any interest in the Intellectual Property Rights. Customer further represents and warrants to the Company that: it is free to disclose, without any obligation to, or violation of any right of, any third party, all information and data disclosed to the Company through the Services covered by this Agreement including but not limited to, information related to any and all Accounts.
- Force Majeure. In the event that the Company is prevented from performing, or is unable to perform, any of its obligations under this Agreement by circumstances beyond its reasonable control, including, without limitation, fire, explosion, power outages, Internet outages, cyber attacks or viruses, acts of God, war or other hostilities, civil commotion, and domestic or foreign governmental acts, orders or regulations (“Force Majeure Event”), and if the Company has used commercially reasonable efforts to avoid such occurrence and minimize its duration and has given prompt written notice to Customer thereof, then the Company’s failure to perform hereunder shall be equitably excused and the time for performance shall be equitably extended for the period of delay or inability to perform due to such Force Majeure Event.
- Limitation of Liability. THE COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES THAT CUSTOMER HAS ACTUALLY PAID TO THE COMPANY UNDER THE APPLICABLE PROPOSAL. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR PUNITIVE DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES OR FOR DAMAGES RESULTING FROM LOSS OF PROFITS, LOSS OF DATA, OR INTERRUPTION OF BUSINESS REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE) AND REGARDLESS OF WHETHER THE COMPANY WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS, THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
- Independent Contractor Status. The Company will provide services as an “independent contractor” as that term is defined by the U.S. Internal Revenue Code. The parties are not partners. Neither party is an agent of the other and neither may bind the other party to contracts with third parties.
- Indemnification. The Customer shall indemnify, defend and hold the Company harmless from any and all actual costs or expenses (including, but not limited to reasonable attorneys’ fees and amounts paid in settlement of claims) related to any actual or threatened claim which may be made against the Company alleging (i) that the Services provided under this Agreement infringe upon the patent, copyright or other intellectual property rights of any third party; or (ii) that the Account owner did not actually authorize participation in the Program. The indemnification requirements in this section shall not apply if such liability arises as a direct result of, and then, only to the extent of, the gross negligence or willful misconduct of the Company or its employees.
California Residents: you expressly waive CA Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
- Termination. Once accepted, Proposals are not cancelable without the prior written consent of the Company. Notwithstanding the foregoing, both Customer and Company shall have the right to terminate the Agreement by providing no less than thirty (30) days notice to the other party. Upon termination, Customer shall immediately pay Company all outstanding amounts due under the Agreement for Services provided up to the date of termination.
- Miscellaneous. This Agreement contains the entire agreement between the parties with respect to the subject matter herein and supersedes all prior or contemporaneous agreements, discussions or representations, oral or written with respect to such subject matter. The Company hereby rejects any terms on Customer’s website or printed documents that add to, vary from or conflict with this Agreement. In the event of a conflict between the terms of a Customer document and this Agreement, the Customer and the Company agree that this Agreement shall control. No waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. If for any reason any provision hereof is determined by a court of competent jurisdiction to be unenforceable or invalid, such provision shall be deemed severed from this Agreement and the remaining provisions shall be carried out with the same force and effect as if the severed provision or part thereof had not been a part of this Agreement. There are no third party beneficiaries to this Agreement. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without giving effect to the choice of law provisions thereof. The parties consent to the personal jurisdiction and exclusive venue of the state and federal courts located in Kent County, Delaware with respect to all disputes arising hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. The descriptive headings for the several sections of this Agreement are inserted for convenience only and not to confine or limit any of the terms or provisions hereof.