SproutLoud Media Networks, LLC User Agreement
END USER SUBSCRIPTION AGREEMENT
This Web site and all corresponding products and services accessible through this site are provided by SproutLoud Media Networks, LLC.
Acceptance of Terms.
In order to obtain full access to this site operated by SproutLoud, marketing programs, products and services, you must read the terms and conditions of service set forth below (the " Agreement") and agree to be legally bound by the obligations imposed on you in this Agreement. By clicking the "I AGREE" button, you accept the terms and conditions of this Agreement. We may amend this User Agreement without notice to you by posting the changes on our website, and changes will be effective ten days after being posted.
This End User Subscription Agreement (“Agreement”) is a binding and enforceable legal agreement between You and SproutLoud Media Networks, LLC (“SproutLoud”). “Application Services” means the provision of electronic access to SproutLoud’s marketing services over a computer network and related technical support services. “You” or “Your” refers to the person, entity, or organization using software provided by SproutLoud, and any successor or assignee of same. You represent and warrant that you are authorized to enter into this Agreement.
1. DEFINITIONS
The “CAN-SPAM Act” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer Data” means all electronic data or information submitted by You to the Application Services.
“Network Sponsor” means any business which provides content, artwork, and other marketing materials for your use through Application Services.
“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers.
The “UIGE Act” means the Unlawful Internet Gambling Enforcement Act of 2006.
2. USE. You may use the Application Services only in and for Your own internal purposes and business operations. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Application Services accessed by You hereunder, in whole or in part, is granted except as expressly provided by this Agreement. Neither You nor any of Your affiliates shall reverse engineer, decompile or disassemble the Application Services. Nothing in this Agreement will entitle You or any of Your affiliates to access or use the source code of the Application Services.
3. YOUR RESPONSIBILITIES. You are responsible for all activity that occurs within Your account(s). You shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify SproutLoud promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application Services, including without limitation the CAN-SPAM Act. You shall not upload to, or store within, the Application Services (and Customer Data shall not contain) any Non-Public Personal Information. You understand and acknowledge that: (i) SproutLoud, in its reasonable discretion, may refuse to distribute any message content that SproutLoud reasonably believes is defamatory, infringing, or otherwise unlawful; and (ii) SproutLoud, in its reasonable discretion, may refuse to distribute any e-mail to any recipient that SproutLoud reasonably believes has not granted permission (or otherwise “opted-in”) to You to send such message(s) or that SproutLoud reasonably believes is unlawful.
4. RETAIL POLICIES. Our Retail Policies for enrolling in SproutLoud programs and purchasing other products or services from SproutLoud on this website and our refund policy are available here and are incorporated herein. All costs and taxes are quoted in U.S. dollars. You must pay all applicable taxes on purchases made on our website. We may in our sole discretion add, delete or change some or all of the prices of our products and services at any time without notice.
If you register for a SproutLoud account, you are registering to SproutLoud’s marketing programs including online design, variable data customization, printing, USPS mailing services and corresponding e-mail services that allow you to design, customize, print, mail and e-mail marketing collateral using the SproutLoud service. If services in your account require a subscription fee, your subscription includes use of the services for which you have subscribed.
Customized marketing collateral and ancillary SproutLoud services may be purchased online using your credit card. Each time you place an order or set-up a marketing program using SproutLoud, SproutLoud will record the order details you have agreed to in your SproutLoud account.
You will approve all customized marketing designs online. You must print your "proof", a sample of your customized design, viewable and printable in PDF format. You will input your initials approving the release of all marketing materials in the SproutLoud order authorization screen to the designated recipients. This releases SproutLoud from any liability from your negligence of proofing in the printing and/or e-mailing process. SproutLoud will not be held liable for loss or damage of direct mail through the United States Postal Service.
SproutLoud’s online campaign management and order process has tools for creating & mailing your customized documents. Other than when you use an image or text supplied by us or our licensors, or specifically request template design help from our graphic designers, SproutLoud will not be involved in any way with the design or creation of your material. Therefore, we will not routinely screen or review text or graphics modified by you, the end user, before releasing documents to direct mail, e-mail or SMS text messaging services. You are solely responsible for and assume all liability arising from all direct mail/e-mail/SMS documents that you and any other person using your User ID and password creating over the SproutLoud website. If a third party notifies us of a problem marketing design released by SproutLoud, or if we become aware of a problem document customized by you, we may review the document and take any action with respect to the document that we deem necessary in our sole discretion, including, but not limited to, refusing to release the document. The fact that we review a document and allow the document to be mailed or shipped does not mean that: (1) we approve or endorse the content of the document, (2) the document complies with all applicable laws, or (3) you will not incur any liability or harm arising from the document.
Return Address on Your Direct Mail Documents. SproutLoud may automatically print a return address on every document that you create based on the address and/or method of delivery for the profile you select for a direct mail order. U.S. Postal Regulations forbid showing a false return address on mail.
Your Content & Information. All information, data, text, software, photographs, messages or other materials ("Content") you upload, post or create using this website is solely your responsibility. You must evaluate and bear all risks associated with the use of any of your Content and mailing of your documents. You represent and warrant to SproutLoud that: (i) you and your authorized users have the full right, power, and authority to perform any function with relation to the Content (including without limitation uploading, posting, reproducing, distributing, publicly displaying and making derivative works from the Content) that you or they perform via the SproutLoud website; (ii) your use and the use by your authorized users of the Content does not and will not infringe any copyright or right of privacy, violate any statutory or common law right; interfere with any intellectual property or other proprietary rights of any third party; or contain any matter that is libelous or otherwise in contravention of law; and (iii) Your Information will be true, accurate, current and complete at all times.
All information you provide to us about yourself during the registration process or through any other feature on this website will be referred to as "Your Information." SproutLoud will only use Your Information in accordance with our Privacy Policy. We act merely as a passive conduit for your online design and sending of documents & marketing materials, in reliance on your representations and warranties in this User Agreement. By placing an order on this Site, you warrant that you have all necessary permission, right and authority to place the order and you authorize SproutLoud to print Products on your behalf.
You Will Comply with All Laws. When you use the SproutLoud website in any way such as creating and / or ordering marketing materials, you will comply at all times with all applicable United States federal, state and local laws, statutes, regulations, and ordinances and will not take any action that harms or violates the rights of any person or entity.
5. REFUND POLICY. In the event you wish to discontinue the use of SproutLoud service and products, you may cancel your SproutLoud account. In the event a subscription to SproutLoud services was pre-paid, you will receive a prorated refund of your subscription fee only if the following conditions are met: (i) the request for refund is placed in within 30 days of the start of the subscription term and (ii) you will not use the same subscription service again.
Printed material. Once documents are approved by you after proofing your document, SproutLoud employs a strict no-refund policy. Since you customize every part of your artwork for your marketing communications, it is important to view your proof carefully before you place an order. SproutLoud will not be responsible for your negligence of proofing. In the event you receive SproutLoud material which looks different than your proof, SproutLoud, at its sole discretion, will remedy the error by (i) re-producing the job correctly, or (ii) issuing a credit to a future job of the same manufacturing/electronic specifications.
Non-Deliverability of Purchased Data. SproutLoud provides you with a link to various data providers giving you the ability to purchase data to use in a direct mail campaign as a service to you. Data industry standards provide for a 3%-10% non-deliverability rate which varies based on territory and data provider source used. SproutLoud, nor the data providers, are liable for any undeliverable data – including print, postage and any other associated services as a result of undeliverable mail. In the event the amount of undeliverable data exceeds 10%, you will be refunded according to SproutLoud’s refund policy.
6. PRIVACY POLICY. To learn more about how we protect Your Information please view our Privacy Policy at www.sproutloud.com/privacy-policy.
7. CONFIDENTIALITY. You acknowledge that the Application Services and any other information provided to You by SproutLoud incorporate confidential and proprietary information developed by, acquired by, or licensed to SproutLoud (“Confidential Information”). You will take (and will cause Your affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. Neither You nor any of Your affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of Your employees or consultants who require access for Your authorized use of the Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. You acknowledge that any unauthorized use or disclosure by You or any of Your affiliates of the Confidential Information may cause irreparable damage to SproutLoud. If SproutLoud becomes aware of Your breach or threatened breach of this Section 7, SproutLoud may suspend any and all rights granted to You under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to SproutLoud.
8. INDEMNIFICATION. You shall defend, indemnify, and hold SproutLoud and its licensors harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging that (a) Customer Data infringes the intellectual property rights of a third party, (b) SproutLoud’s or its licensors’ use of any Customer Data, as permitted by this Agreement, has otherwise harmed a third party, (c) Your use of the Application Services other than in compliance with the terms of this Agreement, or (c) Your violation or alleged violation of either the CAN-SPAM Act or the UIGE Act.
9. REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (a) every recipient to whom a message is sent via the Application Services through e-mail marketing and text messaging services shall have given You consent (“opted-in”) to send such message; (b) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; (c) You shall not use the Application Services in a manner that violates any international, federal, state, or local law or regulation relating to individual privacy or the distribution of e-mail and other digital one-to-one communications, including but not limited to the CAN-SPAM Act; and (d) You engage in no activity in violation of the UIGE Act nor shall You use the Application Service to advertise or otherwise promote any activities that would violate the UIGE Act.
10. OUTAGE POLICY. YOU ACKNOWLEDGE AND UNDERSTAND THAT SPROUTLOUD DOES NOT WARRANT THAT THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT SPROUTLOUD MAY OCCASIONALLY EXPERIENCE HARD OUTAGES DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN SPROUTLOUD’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.
11. OWNERSHIP. Marketing materials provided by Network Sponsor through Application Services, advertisements, images or information presented to you on this website may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Application Services, are and will remain the sole and exclusive property of SproutLoud or its applicable service provider(s), whether or not specifically recognized or perfected under applicable law. SproutLoud or its applicable service provider(s) shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in SproutLoud or its applicable service provider(s) by virtue of this Agreement or otherwise, You hereby transfer and assign (and, if applicable, shall cause Your affiliates to transfer and assign) to SproutLoud or its applicable service provider(s) all rights, title, and interest which You or any of Your affiliates may have in to such refinements and improvements.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE APPLICATION SERVICES ARE PROVIDED HEREUNDER “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPROUTLOUD AND ITS APPLICABLE SERVICE PROVIDER(S) EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APPLICATION SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION SERVICES, WHETHER MADE BY EMPLOYEES OF SPROUTLOUD OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY SPROUTLOUD FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF SPROUTLOUD WHATSOEVER.
13. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ANY ERRORS OR OMISSIONS WITH SERVICE PROVIDER’S PRODUCTS, SERVICE PROVIDER SHALL NOT BE LIABLE TO A SUB-ACCOUNT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WAR RANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. SUB-ACCOUNT HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SAID PARTY OF AN ADEQUATE REMEDY.
WITH RESPECT TO ANY ERRORS OR OMISSIONS WITH SERVICE PROVIDER’S PRODUCTS, SUB-ACCOUNT AGREES TO LOOK SOLELY TO SERVICE PROVIDER’S INSURANCE TO COVER ANY AND ALL LOSSES, DAMAGE, LIABILITY, AND EXPENSES ARISING OUT OF ANY ERRORS AND OMISSIONS WITH SERVICE PROVIDER’S PRODUCTS, AND SUB-ACCOUNT HEREBY WAIVES ALL RIGHTS OF SUBROGATION WHICH SUB-ACCOUNT’S INSURER(S) MAY ACQUIRE BY VIRTUE OF THE PAYMENT OF ANY LOSS UNDER SUCH INSURANCE. It is the intent of Service Provider and Sub-Account to cover by insurance the liabilities arising out any errors and omissions with Service Provider’s products which is due to the fault of Service Provider, and Sub-Account shall look solely to the proceeds of Service Provider's insurance that are actually received for the recovery of any loss, damage, liability and expense of Client.
14. COPYRIGHTS. SproutLoud respects the intellectual and property rights of others and we ask users to do the same. You should assume that all text, graphics and images that you find on the World Wide Web are subject to a copyright. In general, it is a violation of federal law to copy text, graphics or images that are subject to a copyright and use the copyrighted material on SproutLoud documents without the consent of the owner of the copyright. You authorize SproutLoud to cooperate with copyright owners who claim that you have infringed or may infringe on their intellectual property rights. This cooperation includes, but is not limited to taking the following action without notice: disclosing Your Information and your Content to the copyright owner or its agent and destroying all alleged infringing material.
15. THIRD PARTIES.
You authorize SproutLoud and its vendors and contractors to cooperate with the U.S. Postal Service and any U.S. or non-U.S. law enforcement or governmental agency, which cooperation includes, but is not limited to, SproutLoud voluntarily disclosing (i.e. without being subject to a lawful order to disclose) to the U.S. Postal Service, and any U.S. or non-U.S. law enforcement and/or governmental agency any or all of Your Information and your Content.
ExactTarget, Inc. (“ExactTarget”) shall be deemed a third party beneficiary under this Agreement and You shall be liable to ExactTarget for any damages arising due to Your breach hereof to the same extent as if ExactTarget had been a signatory to this Agreement.
16. GENERAL INFORMATION. No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This User Agreement and the agreements incorporated herein are the entire agreements between you and SproutLoud and governs your use of this website. This User Agreement supersedes any prior agreements between you and SproutLoud. You also may be subject to additional terms and conditions that may apply when you use affiliate or other services, third-party content or third-party software. The User Agreement and the relationship between you and SproutLoud will be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and SproutLoud agree to submit to the personal and exclusive jurisdiction of the courts located in Broward County, Florida. The failure of a party to exercise or enforce any right or provision of this User Agreement will not constitute a waiver of the right or provision. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
17. TERMINATION. SproutLoud in its sole discretion without notice to you, may: (1) terminate your access to its website or your use of any feature of its website, (2) refuse to print and/or mail any documents and (3) terminate this website, or any feature on the website. SproutLoud will not be liable to you or any third-party for any suspension or termination of your access to this website or your Content; except SproutLoud will refund to you a portion of your membership fee on a pro-rated basis determined by the number of days used versus the days you have remaining on your membership. In the event of terminating your access to the SproutLoud website, SproutLoud will not be responsible for returning any and all content previously stored on this website.
18. DISCLOSURES. This website is provided by SproutLoud Media Networks, LLC.
If you have any questions or comments about the SproutLoud User Agreement, contact us at info@sproutloud.com
