Guided Terms

2.1 Restrictions.
Customer will only use the Service as expressly permitted herein and in the applicable Order Form and agrees that it will not (and will not allow any of its employees or any third party to), directly or indirectly, (i) 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 Service; (ii) modify, translate, or create derivative works based on the Service (except to the extent expressly permitted by Sparrow in writing or authorized within the Service); (iii) use the Service for timesharing or service bureau purposes or otherwise for the benefit of any third party (other than Customer’s employees); (iv) use or access the Service to develop a product or service that is competitive with the Service or engage in competitive analysis or benchmarking; (v) remove any proprietary notices or labels; or (vi) modify, adapt, hack, or attempt to probe, scan or test the vulnerability of, the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.

2.2 Compliance.
Customer is responsible for use of the Service by its Authorized Users. Customer and its Authorized Users will use the Service in compliance with applicable laws and regulations. Customer will provide any notices to, and obtain any consents from, Authorized Users and other employees that are necessary for Sparrow to provide the Service, including to enable Sparrow to collect and process Customer Data (defined below). Although Sparrow has no obligation to monitor Customer’s and its Authorized Users’ use of the Service, Sparrow may do so and may suspend Customer’s and any Authorized Users’ access to or use of the Service if it reasonably believes that any such use violates this Agreement or applicable law or poses a security risk to the Service. Sparrow will use reasonable efforts to notify Customer of any suspension and will limit any suspension to the extent and duration reasonably necessary. “Customer Data” means data submitted to the Service by Customer or Authorized Users or collected by Sparrow in the provision of the Service, including all documentation, data, and other non-public information relating to Authorized Users, but excluding System Data (each as defined in Section 3.3).

2.3 Customer Administration of the Service; Customer Filings.
Customer will be responsible for maintaining the security of Customer’s and Authorized Users’ account, passwords (including but not limited to administrative and user passwords) and files, and will use commercially reasonable efforts to prevent unauthorized use of or access to the Service. Customer will promptly notify Sparrow of any unauthorized use of or access to the Service. Customer acknowledges that the Service is a self-service tool and that Sparrow does not sign, submit or file any leave-related form, claim, notice or other document on behalf of Customer or any employee, or act as the agent or representative of Customer or any employee (including under any power of attorney) with respect to any governmental agency, insurer or other third party. Customer is solely responsible for (a) the accuracy and completeness of all information that Customer or its Authorized Users enter into the Service or include in any form or document prepared using the Service, and (b) reviewing, completing, signing (where applicable), and timely submitting or filing each such form or document with the applicable governmental agency, insurer or other third party.

2.4 Advice and Recommendations.
The Service may include general advice and recommendations, documents and policy samples to Customer or Authorized Users. Customer acknowledges and agrees, however, that Sparrow is not providing legal advice to Customer or any Authorized Users and that Customer is solely responsible for obtaining all necessary advice to ensure that Customer is in compliance with all of its legal obligations in connection with its employee leaves of absence, including under applicable payroll law. In addition, Sparrow will not make any decisions on Customer’s behalf, and Sparrow will be entitled to rely on all of Customer’s decisions and approvals.

3.1 Confidentiality.
“Confidential Information” means any technical or business information disclosed by one party to the other that: (i) if disclosed in writing is marked as “confidential” or “proprietary” when disclosed; (ii) if disclosed orally, is identified as “confidential” or “proprietary” when disclosed and summarized in writing within thirty (30) days; or (iii) a reasonable person would consider confidential or proprietary under the circumstances. Confidential Information of Sparrow includes, without limitation, all software, documentation and other non-public information relating to the Service or the features, functionality and performance thereof. Each party agrees: (i) to take reasonable measures to protect the other’s Confidential Information, and (ii) not to use (except as permitted herein) or disclose to any third person (other than (a) employees, contractors or professional advisors with a need to know who are bound by confidentiality obligations consistent with this Agreement and (b) as directed or authorized by the disclosing party) any such Confidential Information of the other party. Confidential Information does not include information that the receiving party can document (a) is or becomes generally available to the public through no fault of the receiving party, or (b) was in its possession or known without restriction prior to receipt from the disclosing party, or © was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party. A receiving party may disclose Confidential Information to the extent required by law, provided that it gives the disclosing party prompt notice (where legally permitted) and reasonable cooperation, at the disclosing party’s expense, in seeking confidential treatment of such Confidential Information.

3.2 Data Security.
Sparrow will maintain industry standard administrative, physical and technical safeguards reasonably designed to protect the security of Customer Data. These safeguards include measures designed to prevent unauthorized access, use, modification or disclosure of Customer Data. Sparrow will not materially diminish the protections provided in this Section during the term of this Agreement. Sparrow’s standard Data Processing Addendum is hereby incorporated into this Agreement.

3.3 Proprietary Rights.
As between the parties, Sparrow exclusively owns all right, title and interest in and to the Service, System Data and Sparrow’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, output produced specifically for Customer via the use of the Service by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Sparrow regarding the Service that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Service.

4.1 Fees.
Customer will pay Sparrow all applicable fees for the Service, as set forth in the Order Form in accordance with the payment terms therein. Except as expressly set forth in this Agreement, fees are non-cancelable and non-refundable. Sparrow may revise Service fees (including any applicable discount) at the end of the initial term or then-current renewal term, upon forty-five (45) 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 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sparrow’s customer support department.

4.2 Taxes.
Customer is responsible for all taxes associated with the Service other than U.S. taxes based on Sparrow’s net income.

5.1 Term.
Subject to earlier termination as provided below, the initial term of each Order Form will begin on the “Service Start Date” set forth in the applicable Order Form and will automatically renew for additional periods of the same duration as the initial term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 Termination.
In addition to any other remedies it may have, either party may terminate this Agreement (including all Order Forms) upon thirty (30) days’ written notice (or ten (10) days’ in the case of nonpayment), if the other party is in material breach of this Agreement and such breach is not cured during the notice period. Upon termination, Customer’s right to use the Service will immediately terminate. Except as necessary to comply with its legal obligations, each party will immediately cease use of and, upon the other party’s written request, destroy all the other party’s Confidential Information, and any Confidential Information so retained will remain subject to Section 3.1. The following Sections will survive expiration or termination of this Agreement: 2, 3.1, 3.3, 4, 5.2, 6, 7.2, and 8-10.

6.1 By Sparrow.
Sparrow will indemnify, defend and hold Customer harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer resulting from infringement by the Service (excluding any claim based upon the Customer Data) of any U.S. patent, trademark or copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to the Service or portions thereof (i) not supplied by Sparrow, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified by anyone other than Sparrow or its subcontractors, (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 or its Authorized Users’ use of the Service is in breach of this Agreement.

6.2 By Customer.
Customer will indemnify, defend, and hold Sparrow and its affiliates harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party related to (i) Customer’s or Authorized Users’ use of the Service in breach of this Agreement or applicable law, (ii) Customer Data (including any obligations related to Customer Data set forth in Sections 2.1 and 2.3 above), or (iii) the submission or filing of, or any failure to timely submit or file, any leave-related form, claim, notice or other document by Customer, its Authorized Users or its other employees, except, in each case, to the extent the claim arises from Sparrow’s breach of this Agreement or is covered by Sparrow’s indemnity obligations above.

6.3 General.
The party seeking indemnification will promptly notify the other party of the claim (provided that any delay in notice will relieve the indemnifying party of its obligations only to the extent it is prejudiced thereby) and reasonably cooperate, at the indemnifying party’s expense, with the other party in defending the claim. The indemnifying party will have sole control over the defense, except that: (i) any settlement requiring the party seeking indemnity to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense.

7.1 Warranty.
During the Term, Sparrow warrants to Customer that the Service will operate substantially in conformance with the functions and features described in Sparrow’s online user guides, documentation, and help and training materials for the Service, as updated from time to time (the “Documentation”), when used in accordance with such Documentation and this Agreement. As Customer’s sole and exclusive remedy for any warranty breach, Sparrow will use commercially reasonable efforts to correct any such non-conformances which have been brought to the Sparrow support team’s attention. The above remedy is available only if Sparrow is promptly notified in writing of the non-conformance, and in sufficient detail for the non-conformance to be reproducible by Sparrow. If Sparrow is unable to correct any such non-conformances, Customer may terminate the Agreement (including all Order Forms) with thirty (30) days’ written notice to Sparrow, and Sparrow will refund to Customer a pro rata portion of any prepaid fees for the remaining portion of the Term following the effective date of termination.

7.2 Disclaimer.
SPARROW DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND SPARROW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SPARROW IS NOT LIABLE FOR ANY ACT OR OMISSION OF ANY GOVERNMENTAL AGENCY, INSURER, HEALTH CARE PROVIDER OR OTHER THIRD PARTY IN CONNECTION WITH ANY LEAVE-RELATED FORM, CLAIM OR OTHER DOCUMENT PREPARED USING THE SERVICE (E.G., EMPLOYEE’S DOCTOR, CALIFORNIA EDD, SHORT-TERM DISABILITY PROVIDER).

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR BREACH OF SECTION 3.1 (CONFIDENTIALITY), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”). NOTWITHSTANDING THE FOREGOING, SPARROW’S AGGREGATE LIABILITY FOR BREACH OF SECTION 3.2 (INCLUDING THE DATA PROCESSING ADDENDUM) AND/OR SECTION 3.1 IN RELATION TO CUSTOMER DATA WILL NOT EXCEED TWO TIMES (3X) THE ORDINARY CAP.

Customer and Sparrow agree to resolve any claims relating to this Agreement or the Service through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, California, or any other location the parties agree to in writing. The arbitrator will have the right to order limited discovery. The arbitration fees will be borne by the losing party, except as otherwise awarded by the arbitrator in accordance with the Commercial Arbitration Rules. Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely to seek temporary or preliminary injunctive relief to stop unauthorized use or abuse of the Service or to protect its Confidential Information or intellectual property rights. Each party hereby consents and irrevocably submits to the exclusive jurisdiction and exclusive venue of such courts.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of the Agreement will remain in full effect. This Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of such party’s assets or business. Sparrow may use subcontractors in its performance of this Agreement; provided that Sparrow will remain responsible for any such subcontractor’s performance hereunder. This Agreement, including the Data Processing Addendum and any Order Forms, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings relating to such subject matter. Sparrow may revise this Agreement from time to time by posting the revised version on the Sparrow website. If a revision is material, Sparrow will notify Customer by email at least thirty (30) days in advance, and the revision will apply to Customer beginning with Customer’s next renewal term. In the event of a conflict, the documents will control in the following order of precedence: the Order Form, the Data Processing Addendum, this Agreement. Any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority to bind the other. There are no third-party beneficiaries to this Agreement, including Customer’s Authorized Users and other employees. Except for payment obligations, neither Sparrow nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). Customer agrees that Sparrow may refer to Customer’s name and trademarks in Sparrow’s marketing materials and website; however, Sparrow will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). If Customer does not agree to Sparrow’s use of Customer’s name or trademarks in Sparrow’s marketing materials and website, Customer may opt out of such use by providing written notice to Sparrow within fourteen (14) days of the date of the initial Order Form. All notices under this Agreement must be sent via email, next day delivery via recognized overnight delivery service, or certified or registered mail, return receipt requested, and are deemed given when received. Notices to Customer may be sent to the applicable account email address and are deemed given when sent. Notices to Sparrow must be sent to Sparrow Legal at [email protected] with a copy to Sparrow, Attn: Legal Department, 548 Market Street #73767, San Francisco, CA 94104. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.