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1. SAAS SERVICES AND SUPPORT

1.1 Subject to these Terms and Conditions, in addition to any terms contained on an Order Form referencing these terms, and the Acceptable Use Policy and Privacy Policy referenced herein (collectively, the “Agreement”) Sparrow will use commercially reasonable efforts to provide Customer access to the Sparrow software-as-a-service communication platform and related services as described in an applicable Order Form (“Services”).

1.2 Subject to the terms hereof, Sparrow will provide Customer with reasonable technical and customer support services in accordance with Sparrow’s standard practices then in effect and as described in an applicable Order Form, which is referenced and incorporated herein.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any portion thereof (except to the extent expressly permitted by Sparrow in writing or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary rights notices.

2.2 The Services may be subject to export laws and regulations of the United States and other jurisdictions. Sparrow and Customer each represents that it is not named on any U.S government denied-party list. Customer will not permit any user to access or use any part of the Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Sparrow’s Acceptable Use Policy page, which is referenced and fully incorporated herein, (collectively the “Acceptable Use Policy”) and all applicable laws and regulations. Sparrow reserves the right to determine whether to modify or amend the Acceptable Use Policy and shall provide notice of such amendment to Customer via email. Customer hereby agrees to indemnify and hold Sparrow harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the Acceptable Use Policy. Although Sparrow has no obligation to monitor Customer’s use of the Services, Sparrow may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

2.5 Sparrow reserves the right to permanently deactivate groups of contacts within Customer’s Sparrow account in which no messages have been sent for 89 or more days.

2.6  Customer agrees and acknowledges that it is solely responsible for obtaining all opt-ins and consents necessary to use the Services, as required by all applicable law (including but not limited to data privacy and data protection laws), and that Sparrow is not responsible for obtaining any such opt-ins or consents.  In addition, Customer agrees and acknowledges that it is solely responsible for complying with all laws (including but not limited to data privacy and data protections laws) that apply to Customer’s use of the Services.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Sparrow includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Sparrow to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to the Receiving Party without restriction by a third party, (d) was independently developed without use of or access to any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by applicable law.

3.2 Customer shall own all right, title and interest in and to the Customer Data. Sparrow shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to the foregoing.

3.3 Notwithstanding anything to the contrary in this Agreement, Sparrow shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (collectively, “Usage Data”) in accordance with Sparrow’s privacy policy (“Privacy Policy”) Sparrow will be free (during and after the term hereof) to (i) use such Usage Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sparrow offerings, and (ii) disclose such Usage Data solely in aggregate or other de-identified form in connection with its business.

3.4  No rights or licenses are granted to a party’s Proprietary Information except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 Customer shall pay Sparrow the fees described in the Order Form for the Services as described in the Order Form in accordance with the terms therein. If Customer’s use of the Services exceeds the Service capacity, if any, set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Except in the event of termination of this Agreement for the  uncured material breach by Sparrow in accordance with Section 5.2 below, all fees are nonrefundable. Sparrow reserves the right to change the Fees and to institute new charges and Fees at the end of the Initial Service Term or then-current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Sparrow has billed Customer incorrectly, Customer must contact Sparrow no later than 30 days after the closing date on the first billing statement in which the error appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sparrow’s customer support department.

4.2 Unless other terms have been agreed to in the applicable Order Form, full payment for invoices issued in any given month must be received by Sparrow thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

4.3 Unless otherwise stated in an Order Form, Sparrow’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes, except those assessable against Sparrow measured by its net income. Sparrow will invoice Customer for such Taxes if Sparrow believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and unless expressly stated otherwise in the Order Form, shall automatically renew for additional periods of the same duration as the Initial Service Term (each, a “Renewal Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Initial Service Term or Renewal Term.  The Initial Service Term and any Renewal Terms are collectively referred to herein as the “Term.”

5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ prior written notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty days following notice thereof. In no event will termination relieve Customer of its obligation to pay any fees due to Sparrow for the period prior to the effective date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability, and dispute resolution and arbitration provisions.

5.3 Upon termination, Customer Data shall remain available for Customer to download for 30 days. Upon request, Sparrow shall delete all production Customer Data. Sparrow may retain a secure, encrypted copy of Customer Data for up to one year after termination pursuant to Sparrow’s standard archiving and back-up procedures and policies. Sparrow is subject to duties of confidentiality regarding Customer Data under this Agreement at all times that it is in Sparrow’s possession, in addition to Sparrow’s obligations under its Privacy Policy.

6. WARRANTY AND DISCLAIMER

6.1 Sparrow shall use commercially reasonable efforts consistent with generally-accepted industry standards to provide the Services in a manner which minimizes errors and interruptions in the Services and shall provide the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sparrow or by third-party providers, or because of other causes beyond Sparrow’s reasonable control. Sparrow shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Sparrow does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Sparrow shall have no liability whatsoever for unavailability or interruption of the Services or any portion thereof, including but not limited to message delivery or phone call connectivity, for reasons beyond Sparrow’s control such as telecommunications network disruption, handset availability, carrier filtering rules or other issues with telecommunications providers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND Sparrow DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7. INDEMNITY

7.1 Subject to the limitation of liability set forth in Section 8 below, Sparrow shall defend and indemnify Customer from third party claims resulting from infringement by the Service of any third party’s United States patent or any copyright or misappropriation of any trade secret, provided that Customer (i) promptly notifies Sparrow of such claims , (ii) provides reasonable assistance to Sparrow in the defense or settlement of such claim, and (iii) provides Sparrow the opportunity to assume sole control over defense and settlement of such claim.  Sparrow will not be responsible for any settlement it does not expressly approve in writing in advance. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Sparrow, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified by or on behalf of Customer after delivery by Sparrow, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement or the Acceptable Use Policy. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Sparrow to be infringing, Sparrow may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a prorated refund of any prepaid, unused fees for the Services.

8. LIMITATION OF LIABILITY

8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, Sparrow AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CLAIM RELATED TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE,  FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR LOSS OF BUSINESS OR LOST REVENUE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND Sparrow’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO Sparrow FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT Sparrow HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE.

9. MISCELLANEOUS

9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be interpreted to the maximum extern permissible to effect the original intent of the parties, and the remaining provisions will remain in full force and effect and enforceable.

9.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Sparrow’s prior written consent. Sparrow may transfer and assign any of its rights and obligations under this Agreement without consent.

9.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to its subject matter, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to such subject matter. All waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein.

9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sparrow in any respect whatsoever.

9.5 The parties shall use good faith efforts to resolve any dispute with respect to this Agreement within 30 days of a dispute being raised by one party with the other party. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration under the auspices of JAMS in San Francisco, California in accordance with its rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. The arbitrator shall be bound by the limitation of liability provision set forth in Section 8 above.  Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. This dispute resolution provision shall be governed by the Federal Arbitration Act.

9.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.7 This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

9.8 Force Majeure. No party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

9.9 Public Announcements and Case Studies. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party. Sparrow may, subject to obtaining Customer’s consent, include Customer’s name, logo, and/or other indicia in its lists of Sparrow’s current or former customers of Sparrow in promotional and marketing materials. Additionally, upon consent of Customer, Sparrow shall prepare a case study relating to Customer’s access and use of the Services, including but not limited to one or more testimonials from Customer’s users, aggregated data of the results of Customer’s use of the Services, and other informational material as determined by Sparrow. Customer agrees to provide reasonable assistance to Sparrow and timely responses in Sparrow’s preparation of said case study.