Effective Date: March 7, 2022
Sprig Service Agreement
Sprig Services Agreement
This Agreement, together with any and all Order Forms signed by [Customer] (“Company”) and Sprig Technologies, Inc. (“Sprig”) (the “Agreement” or “Terms”), governs use of the Services (as defined below) by Company. In the event of a conflict between the terms and conditions of the applicable Order Form and the Agreement, the Agreement will govern. Capitalized terms utilized but not defined in the Agreement are defined in the applicable Order Form.
1.a Company’s Use of the Services. Subject to the Terms, Sprig grants to Company a limited, non-transferable, non-exclusive and non-sublicensable right to use the services described on and for the duration specified in the applicable Order Form (the “Services”) solely for Company’s internal business purposes.
1.b Authorized Users. The Services may only be accessed and used by those Company employees or contractors who have been designated and authorized by Company to be granted such access (“Authorized Users”) for the sole purpose of performing their job functions for Company. The credentials for each Authorized User are for a single individual only, they must be kept confidential, cannot be shared or used by more than one person. Company is responsible and liable for: (a) all actions taken under an Authorized User’s credentials, whether or not such action was taken or authorized by the Authorized User; and (b) all uses of the Services resulting from access provided by Sprig, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including any associated fees that Company may incur via the Services.
1.c Sprig’s Use of Company Data. “Company Data” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Company through the Services. Company hereby grants Sprig a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify the Company Data for the purpose of hosting, operating, optimizing, and providing the Services.
2. Fees and Payment Terms. In exchange for the Services, Company will pay the fees set forth below:
2.a Subscription Fee.Company shall pay a Subscription Fee as described in an Order Form for the Initial Term and for each successive Renewal Term. The Subscription Fee shall be invoiced annually, beginning on Service Billing Start Date and upon the anniversary of such date for every successive Renewal Term, and shall be due within thirty (30) days of receipt of the invoice. The Subscription Fee and any Monthly Fees (as defined below) shall be referred to collectively as the “Fees.” All Fees shall be paid in US dollars.
2.b Monthly Fees. Company understands and agrees that Company may incur the additional monthly fees (the “Monthly Fees”) depending on Company’s usage of the Services, as described in the Order Form. If Company incurs Monthly Fees, Sprig shall invoice Company at the end of the month during which Company incurred the Monthly Fees (the “Invoice Date”), and Company shall pay the Monthly Fees within thirty (30) days of the Invoice Date.
2.c Usage Limits. If Company exceeds agreed upon monthly usage allowances as stated in the Order Form in the form of either monthly tracked users or monthly studies in any two (2) calendar months during the Term, Company will be moved to higher tier of usage with a higher annual Subscription Fee and invoiced at a prorated amount for remainder of Term at that tier, inclusive of month where second overage occurred. Company shall pay prorated Subscription Fee increase within thirty (30) days of the Invoice Date. If company exceeds usage allowances for all tiers stated in the Order Form, Company may be subject to additional Monthly Fees based on usage as stated in the Order Form. Number of monthly tracked users and studies allowance resets on the first day of every calendar month, regardless of pilot, service, and billing start dates. Only studies that receive at least one (1) response in a given month count against the limit. Company agrees to use commercially reasonable efforts to limit requests sent to Sprig to 100 queries per second (QPS) for plan type: Free, Essentials; and 1,000 queries per second (QPS) for plan type: Enterprise. Sprig has no obligation to accept additional requests that exceed the 100 and 1,000 limits respectively and will not be liable or responsible for such additional requests. If Company’s throughput per monthly tracked user, defined as the sum of all requests, regardless of source, driven by and resulting in unique instances of triggered events and unique instances of updated or invocated attributes, all divided by the number of monthly tracked users as stated in the Order Form, averages more than 100 in any given calendar month during the Term, monthly tracked users will be calculated as the total throughput in that month divided by 100, and will be counted toward total allotment of monthly tracked users specified in the Order Form.
2.d Taxes. Company will be responsible for, and will pay all taxes and duties of any kind, including any value added tax and withholding tax, and all similar fees levied upon or associated with the provision of the Services excluding only taxes based solely on Sprig’s net income. Company will indemnify and hold Sprig harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest. Company will pay all Fees to Sprig free and clear of, and without reduction for, any withholding taxes. If any withholding taxes must be paid based on the Fees, then Company will pay all such taxes and the Fees payable to Sprig under this Agreement will be increased such that the amounts actually paid to Sprig will be no less than the amounts that Sprig would have received notwithstanding such tax. Company will provide Sprig with written documentation, including but not limited to copies of receipts, of any and all such taxes paid in connection with this Agreement.
3.a Definition. Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Service Start Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, at the time of initial disclosure to the Receiving Party or, if the Disclosing Party makes an oral disclosure, the Disclosing Party, within 10 days of such oral disclosure, notifies the Receiving Party in writing that the information disclosed by the Disclosing Party should be treated as confidential/proprietary to the Disclosing Party. The Agreement is each party’s Confidential Information. Sprig’s Confidential Information includes, but is not limited to, the Services, the components of the business plans, financial plans, know-how, customer information, strategies, and other similar information. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is required to be disclosed by law (provided that, to the extent permitted by law, the Receiving Party shall notify the Disclosing Party as soon as reasonably practicable in writing prior to any disclosure pursuant to a legal requirement to allow the Disclosing Party a reasonable opportunity to seek a protective order or similar relief).
The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for two years thereafter, and will not use such Confidential Information for any purpose other than carrying out the Receiving Party’s obligations under this Agreement. The Receiving Party will use at least the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees, subcontractors, and/or contractors who have a need to know such Confidential Information in order to perform their duties in connection with this Agreement and who have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 3.2. Although this Agreement is Confidential Information, each party may disclose this Agreement to its advisors in connection with an actual or proposed merger, acquisition, or similar transaction. Any suggestions, comments or other feedback provided by Company to Sprig with respect to Sprig or the Services (collectively, “Feedback”) will constitute Confidential Information of Sprig, and Sprig shall own all right, title and interest in and to the Feedback.
3.c Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4. Representations, Warranties and Remedies.
4.a Representations and Warranties. Sprig represents and warrants that (a) the Services will conform, in all material respects, to the applicable specifications set forth in the Order Forms, and (b) it will perform the Services in a professional and workmanlike manner. Company represents and warrants that Company (and its employees, contractors, services providers, and Authorized Users): (a) will use the Services only in compliance with this Agreement and all applicable laws and regulations; (b) shall not infringe upon any third party’s trade secrets, trademarks, copyright, patent rights or other proprietary rights in its use of the Services, including in connection with providing any Feedback or Company Data; (c) it has obtained and will obtain and continue to have, during the term, all necessary rights, authority and licenses for the access to and use of the Company Data (including any Company Personal Data as defined in the Data Processing Addendum) as contemplated by this Agreement; and (d) Sprig’s use of the Company Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Company and any third party.
4.b Disclaimer. THE SERVICES ARE PROVIDED ON AN AS-IS BASIS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4.a, SPRIG DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, AND THE SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SPRIG KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, COMPANY ACKNOWLEDGES AND AGREES THAT SPRIG MAY MODIFY THE FEATURES OF THE SERVICES FROM TIME-TO-TIME AT SPRIG’S SOLE DISCRETION.
5. Indemnification Obligations.
5.a Sprig Indemnity. Sprig, at its sole expense, will defend Company from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Company from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses, including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements (collectively, “Damages”) that are finally awarded and resulting from or arising in connection with the exercise of any of the rights granted to Company under Section 1 with respect to the Services infringing any intellectual property rights of any third party. In the event of a Claim pursuant to this Section 5.1, Sprig may, at Sprig’s option and expense (1) obtain for Company the right to continue to exercise the rights granted to Company under this Agreement; (2) substitute the allegedly infringing component for an equivalent non-infringing component; (3) modify the Services to make them non-infringing; or (4) if (1), (2), or (3) is not obtainable on commercially reasonable terms, Sprig may terminate this Agreement, effective immediately, by written notice to Company. Upon a termination of this Agreement pursuant to the preceding sentence, Company must cease using the Services and Sprig will refund the amount Company paid to Sprig for the Services for the then-current Subscription Period adjusted pro-rata for any period during such then-current Subscription Period when any of the Services were provided to Company. Sprig’s indemnification obligations do not extend to Claims arising from or relating to: (i) any negligent or willful misconduct of Company or any of Company’s employees, contractors and/or service providers (collectively, the “Company Parties”) or any third party; (ii) any combination of the Services (or any portion thereof) by any of the Company Parties or any third party with any equipment, software, data or any other materials; (iii) any modification to the Services by any of the Company Parties or any third party; (iv) the use of the Services by any of the Company Parties or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; (v) the continued use of the Services after Sprig has provided substantially equivalent non-infringing software or service; (vi) any Company Data, services, or products; or (vii) any act or omission of any of the Company Parties.
5.b Company, at its sole expense, will defend Sprig and its directors, officers, employees and agents (“Sprig Indemnitees”) from and against any Claims and indemnify Sprig Indemnitees from any related Damages arising from or relating to any alleged or actual breach of Company’s obligations under this Agreement (including, but not limited to, any alleged or actual breach of any of Company’s representations or warranties).
6. Limitation of Liability.
6.a Consequential Damages Waiver. EXCEPT FOR (A) EACH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 3, (B) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, AND (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 5, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
6.b Liability Cap. EXCEPT FOR (A) EACH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 3, (B) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, AND (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 5, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY TO SPRIG DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED, REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION.
6.c Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 6 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. Term, Termination and Effect of Termination.
7.a Term and Termination. Unless earlier terminated as set forth in this Agreement, this Agreement commences upon the date of signature by Company on the applicable Order Form or the Service Start Date, whichever is earlier, and continues for the period specified in the applicable Order Form (the “Initial Term”). After the expiration of the Initial Term and except for any Pilot Periods or Extended Pilot Periods (as specified in the Order Form), this Agreement shall automatically renew for additional successive twelve (12) month terms unless either party terminates this Agreement with no less than 60 days’ written notice prior to the close of the then-current term (each such term, a “Renewal Term,” and, collectively with the Initial Term, the “Term”). In addition to Sprig’s right to terminate this Agreement pursuant to Section 5.1, either party may terminate this Agreement, for cause, if the other party: (a) materially breaches this Agreement and does not remedy such failure within 20 days after its receipt of written notice of such breach; or (b) terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
7.b Effect of Termination. Upon any termination of this Agreement (a) all rights and licenses granted to Company under this Agreement will immediately cease; (b) Company will immediately pay to Sprig: (i) in the event of a material breach by Sprig, all amounts due and payable for Services already provided up to the effective date of termination of this Agreement or (ii) in the event of a material breach by Company, all amounts due under the Agreement, including without limitation, any unpaid portions of the Subscription Fee; (c) each party will promptly return to the other party or destroy, at the other party’s option, all Confidential Information of the other party then in its possession, including all copies thereof; and (d) Sprig will delete all Company Data, except to the extent that Sprig is required under applicable law to keep a copy of the Company Data. Notwithstanding any terms to the contrary in this Agreement, Sections 2, 3, 4, 5, 6, 7.2, 8, and 11 through 17 will survive any termination of this Agreement, and no refunds will be issued upon any termination of this Agreement except as explicitly provided herein.
Except as expressly authorized by this Agreement, Company may not (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof), (c) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, disable, erase or otherwise harm software, hardware or data, or perform any other harmful actions, (d) copy, frame or mirror any part or content of the Services, (e) build a competitive product or service, or copy any features or functions of the Services, (f) interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) disclose to any third party any performance information or analysis relating to the Services, (i) use the software components of the Services, or allow the transfer, transmission, export or re-export of such software components or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, (j) remove, alter or obscure any proprietary notices in or on the Services including copyright notices, (k) disclose or make available passwords that Sprig has provided to Company or the Authorized Users or that are generated in connection with Company’s or Authorized Users’ use of the Services, other than to Authorized Users, or (l) cause or permit any Authorized User or third party to do any of the foregoing. Company will use best efforts to prevent unauthorized access to, and use of, the passwords and the Services, and will immediately notify Sprig in writing of any unauthorized use of the Services that comes to Company’s attention.
9. App Terms.
9.a App License. The Services include Sprig’s mobile application (“App”). Subject to Company’s compliance with this Agreement, Sprig grants to Company a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on Company’s computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for Company’s internal business purposes. Except as expressly permitted in the Agreement, Company may not: (a) copy, modify or create derivative works based on the App; (b) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (c) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (d) make the functionality of the App available to multiple users through any means.
9.b Additional Information: Apple App Store. This Section 9.2 applies to any App that Company acquires from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, Company may notify Apple, and Apple will refund the App purchase price to Company (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by Company or any third party relating to the App or Company’s possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that Company’s possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of the Agreement, and following the execution of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Company as a third-party beneficiary thereof. Company represents and warrants that (i) Company is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) Company is not listed on any U.S. Government list of prohibited or restricted parties. Company must also comply with any applicable third-party terms of service when using the App.
10. Data Processing Addendum.
Each party shall comply with the Sprig Data Processing Addendum located at: https://sprig.com/dpa, which is incorporated herein by reference.
11. Aggregated and/or De-Identified Data.
Company acknowledges and agrees that Sprig may: (a) compile and/or derive aggregated and/or de-identified information in connection with providing the Services provided that such information cannot reasonably be used to identify Company or any data subject to whom Company Data relates (“Aggregated and/or De-Identified Data”); and (b) use Aggregated and/or De-Identified Data for its lawful business purposes. Company Data does not include Aggregated and/or De-Identified Data.
No provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights from Sprig to Company or Authorized Users. Sprig shall own and retain all right, title and interest in and to: (a) the Services and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Services; (c) Aggregated and/or De-Identified Data; and (d) all intellectual property rights related to any of the foregoing.
Company consents to Sprig’s use of Company’s name and logo on the Sprig website, identifying Company as a customer of Sprig and describing Company’s use of the Services notwithstanding any terms to the contrary in this Agreement. Company agrees that Sprig may issue a press release identifying Company as customer of Sprig.
14. Force Majeure.
Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Sprig, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).
15. Governing Law; Disputes.
This Agreement will be governed by the laws of the State of California, without resort to its conflict of law provisions and the parties hereby submit to the exclusive jurisdiction of the state or federal court in San Francisco County, California for any suits filed that relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this Agreement, the parties must participate in good faith mediation in San Francisco County, California. If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
This Agreement may not be assigned by Company, by operation of law or otherwise, without the prior written consent of Sprig, and any attempted assignment without such consent will be void and without effect; provided that Company may assign, without Sprig’s consent, this Agreement to any entity that acquires all or substantially all of Company’s business or assets with written notice to Sprig. Sprig may terminate this Agreement, effective immediately, in the event of such assignment by Company. Sprig may freely assign this Agreement. Subject to the foregoing, this Agreement will be binding upon, will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
This Agreement, including all of its addenda incorporated herein and/or exhibits, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, discussions and understandings, written or oral, with respect to such subject matter. Neither party will be deemed to be an agent or representative of the other party, and the relationship between the parties will only be that of independent contractors. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. If any provision of this Agreement is judged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary, and the other provisions of this Agreement shall otherwise remain in effect. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format). This Agreement is the product of all of the parties, and no ambiguity shall be construed in favor of or against any one of the parties. Any notice or communication to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party identified on this Agreement or otherwise provided in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.