Terms

This Site and Services are provided by SproutLoud.

SproutLoud is an online solution that makes managing your local marketing easier. SproutLoud provides a wide-arrange of marketing services and tools – your access to these tools is determined by the Network Sponsor(s) you are connected to within The Engine. These tools may change at any time, at our discretion, with or without notice.

You represent that you are at least 18 years of age and have attained the age of majority in the province, state or country in which you reside and that you are fully able and competent to enter into the terms, conditions, obligations, affirmation and representations set forth in this Agreement.

SproutLoud grants you permission to use the Application Services, as hereinafter defined, provided that your use is limited to your own internal purposes and business operations.  The right to use the Application Services is personal to you and you shall not sell, lease, assign or transfer any right to use the Application Services nor shall you permit any such assignment or transfer to occur, directly, indirectly or contingently by agreement or operation of law.

You agree not to decompile, reverse engineer, disassemble or otherwise attempt to discover the source code of the Application Services and any sites operated by SproutLoud.

You agree not to use the Application Services in any way that is unlawful or harms SproutLoud, its affiliates or any of its clients.  You may not use the Application Services in any way that breaches any code of conduct, policy or other notice applicable to the Application Services. Without limiting the generality of this section, you may not use the Application Services in any manner that could damage, disable, overburden, or impair any site operated by SproutLoud or its Application Services or interfere with any other party's use of the Application Services.  When you use the Application Services and any site operated by SproutLoud, 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.

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, HIPAA, HITECH, and UIGE Act.

You shall not upload to, or store within, the Application Services (and Customer Data shall not contain) any Non-Public Personal Information.  The preceding prohibition shall not apply to PHI if you have entered into a Business Associate Agreement with SproutLoud.

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.

Enrollment into marketing services on the Engine must be accurate and complete. You shall update enrollment information as necessary to keep it accurate and complete. You shall not misrepresent Your identity, the identity of Your authorized users of the Site or Services, Your ownership of, and authority to act on behalf of, Your company, or any other enrollment information or information provided by You subsequent to the enrollment. Failure to provide accurate and complete information may result in the termination of Your ability to use the Site and/or Services and/or result in errors.

SproutLoud’s online marketing tools provide for the management and deployment of your customized marketing materials and programs. Other than when you use an image or text supplied by us or our licensors, or specifically request template design help from our designers, SproutLoud will not be involved in any way with the design or creation of your marketing material and content. Therefore, we will not routinely screen or review text or graphics modified by you, the end user, before your marketing materials are delivered in the order medium you have chosen. You are solely responsible for and assume all liability arising from all content that you create. For your content sent via direct mail, 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. Postal regulations, specifically in the United States, forbid showing a false return address on mail. All information, data, text, software, photographs, messages or other materials ("Content") you upload, post or create using this website is solely your responsibility. You also acknowledge that you assume full responsibility for the use and/or disclosure of any Non-Public Personal Information, including PHI, obtained and uploaded pursuant to a Business Associate Agreement. You must evaluate and bear all risks associated with the use of any of your Content and sending of your content. 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.

SproutLoud may, in its sole discretion, add, delete or change the pricing of its products and services at any time and without notice.  All pricing, including costs and taxes, are quoted in the currency you have selected upon registration.

Subscription. In the event you wish to discontinue the use of SproutLoud service and products, you may cancel your SproutLoud account. If 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 a refund is not placed within 30 days of the start of the subscription term and (ii) you will not use the same subscription service again. Customized Marketing Material. After marketing materials have been proofed and approved by you, 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 in proofing materials. In the event you receive marketing materials from SproutLoud which looks substantially 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-Customized Marketing Material. SproutLoud manages non-customized, inventoried marketing material available for ordering. In the event you would like to return an item, a full refund will be given provided the return ship-date on the item is within 30 days of original receipt of the item. 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.

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, which is incorporated by reference herein and can be viewed at www.sproutloud.com/privacy-policy.

All customer data, including but not limited to, customer lists and direct marketing lists (hereinafter, “Client Data”), uploaded on the Application Services by you is owned by you.  SproutLoud will never sell or rent your Client Data.

All Client Data, including access thereto, shall be governed by SproutLoud’s Customer List Policy, which is incorporated by reference herein, and can be viewed at www.sproutloud.com/list-policy.

You may not access The Engine if you are a direct competitor of SproutLoud or for the purpose of benchmarking, analyzing or comparing the Services to others not owned by SproutLoud or for any competitive purpose. We reserve the right in Our sole discretion to determine the foregoing and deny, refuse or eliminate Services to anyone at any time.

You agree not to disclose SproutLoud Confidential Information to any individual or entity without SproutLoud's prior written consent.  Your employees must agree to comply with this provision and the nondisclosure restrictions applicable hereto before being provided access to SproutLoud Confidential Information.  You acknowledge that any unauthorized use or disclosure of SproutLoud Confidential Information may cause irreparable damage to SproutLoud.  "SproutLoud Confidential Information" includes without limitation all SproutLoud software, technology, programming, specifications, materials, pricing, guidelines and documentation relating to the Application Services.

You acknowledge that SproutLoud may suspend or terminate 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 if you wrongfully disclose SproutLoud Confidential Information.

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless SproutLoud, its parent corporation, subsidiaries, affiliates, licensors, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from (i) your use of and access to the Application Services and any SproutLoud website; (ii) your violation of any term of this Agreement; (iii)  any claim, demand, suit or proceeding claiming that any artwork, logos, graphics, text, data, marketing materials, Client Data and any other information provided by you to SproutLoud or uploaded by you on the Application Services violates any third party right, including without limitation any copyright, trademark, property or privacy right; and (iv) any claim, demand, suit or proceeding claiming that you caused damage to a third party; (v) your violation or alleged violation of  the CAN-SPAM Act,  HIPAA, HITECH, or the UIGE Act.

You represent and warrant that: (i) 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; (ii) the Customer Data provided to SproutLoud or uploaded on the Application Services does not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; (iii) you shall not use the Application Services in a manner that violates any international, federal, state, or local law or regulation, including but not limited to, any individual privacy law or laws governing the distribution of e-mail and other digital one-to-one communications, such as the CAN-SPAM Act, HIPAA, or HITECH; and (iv) you do not engage any 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.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE APPLICATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  SPROUTLOUD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION SERVICES, YOUR USE THEROF, AND PRODUCTS AND SERVICES PROVIDED TO YOU OR OTHERS ON YOUR BEHALF, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

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.
 
SPROUTLOUD ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT THAT OCCUR IF YOU APPROVED THE PROOF CONTAINING SAID ERRORS, MISTAKES OR INACCURACIES OF CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, AND (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES.

SPROUTLOUD, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER OR LOST OR IMPUTED PROFITS ARISING OUT OF THIS AGREEMENT AND/OR RESULTING FROM ANY (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES WITH SPROUTLOUD’S PRODUCTS THAT OCCUR IF YOU APPROVED THE PROOF CONTAINING SAID ERORS, MISTAKES, OMISSIONS OR INACCURACIES; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, AND/OR (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.  YOU HEREBY WAIVE ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY.

WITH RESPECT TO ANY ERRORS, MISTAKES, OMISSIONS OR INACCURACIES WITH SPROUTLOUD’S PRODUCTS AND NOT CONTAINED IN A PROOF APPROVED BY YOU, YOU AGREE TO LOOK SOLELY TO SPROUTLOUD’S INSURANCE TO COVER ANY AND ALL LOSSES, DAMAGE, LIABILITY, AND EXPENSES ARISING OUT OF ANY SUCH ERRORS, MISTAKES, OMISSIONS OR INACCACUARACIES.  YOU AGREE TO WAIVE ALL RIGHTS OF SUBROGATION WHICH YOUR INSURER(S) MAY ACQUIRE BY VIRTUE OF THE PAYMENT OF ANY LOSS, DAMAGE, LIABILITY AND/OR EXPENSE UNDER SUCH INSURANCE. It is the intent of SproutLoud and you to cover by insurance the liabilities arising out of any errors, mistakes, omissions or inaccuracies with SproutLoud’s products which is due to the fault of SproutLoud.

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.

You acknowledge that ownership of all right, title and interest to SproutLoud’s Intellectual Property, which shall include without limitation, SproutLoud’s trademark(s), the design, décor and image of SproutLoud’s marks, copyright materials, and the components and source code of the Application Services is and shall remain vested solely in SproutLoud.  You further acknowledge that ownership of any improvements to the Application Services or any new programs, upgrades, modifications and/or enhancements, even when such refinements result from your request, are and shall remain vested solely in SproutLoud.  To the extent, if any, that ownership in such refinements and improvements do 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.

You acknowledge that marketing materials provided to you by a Network Sponsor through the Application Services, including advertisements, images or other information presented to you through the Application Services or a website provided by SproutLoud may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.

SproutLoud respects the intellectual and property rights of others and we ask you 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, trademark and/or service mark.  In general, it is a violation of federal law to copy text, graphics or images that are subject to a copyright, trademark and/or service mark and use them on SproutLoud materials and documents without the consent of the owner of the copyright, trademark and/or service mark. You authorize SproutLoud to cooperate with copyright, trademark and service mark 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:  (i) disclosing Your Information and your content to the copyright, trademark and/or service mark owner or its agent; and (ii) destroying all alleged infringing material.

By performing an activity in the Engine which requires payment, you warrant that you have all necessary permission, right and authority to place the order and authorize SproutLoud to fulfill the request on your behalf.

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.

Should you be using e-mail services in the Engine, 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 (in relation to e-mail services used) to the same extent as if ExactTarget had been a signatory to this Agreement.

SproutLoud, in its sole discretion and without notice to you, may: (i) terminate your access to its website and the Application Services or your use of any feature of its website and the Application Services; (ii) refuse to print and/or mail any documents and (iii) 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 according to its Refund Policy.

SproutLoud shall not be liable for any failure or delay in performance due to circumstances beyond its reasonable control, which shall include, without limitation, acts of God, earthquakes, labor disputes, changes in law, regulation or governmental policy, riots, war, fire, epidemics, or omissions of vendors or suppliers, equipment failures, or transportation difficulties provided that Service Provider gives you prompt notice of such cause; and uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

You agree that this Agreement shall be governed by the last of Florida, except for its conflicts of laws principles.  Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Broward County, Florida.  This Agreement together with the Privacy Notice at http://www.sproutloud.com/privacy-policy and any other legal notices published by SproutLoud on its site or the Application Services constitute the entire agreement between the parties with respect to the subject matter hereof.  This User Agreement supersedes any prior agreements between you and SproutLoud. Any modifications to this Agreement must be in writing executed by both parties or your continued use of the Application Services after being provided notice thereof.  The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect.  No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

“Application Services” means the provision of electronic access to SproutLoud’s marketing services over a computer network and related technical support services.

“Business Associate” shall have the same meaning as under 42 CFR § 160.103.

“Business Associate Agreement” means an agreement between a “Business Associate” and a “Covered Entity” that is established to ensure the parties to such agreement comply with the requirements of HIPAA and HITECH.

“CAN-SPAM” 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 of this Agreement.
 
“Covered Entity” shall have the same meaning as under 42 CFR § 160.103.
 
“Customer Data” means all electronic data or information submitted by and/or uploaded by You to the Application Services.
 
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the requirements set forth therein.
 
“HITECH” means the Health Information Technology for Economic and Clinical Health Act and the requirements set forth therein.
 
“Network Sponsor” means any business which provides content, artwork, and other marketing materials for your use through Application Services.
 
“Non-Public Personal Information” means 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.
 
“Protected Health Information” or “PHI” shall have the same meaning as under 42 CFR 160.103.
 
“The Engine” means SproutLoud’s proprietary software/web-based application.
 
“UIGE” means the Unlawful Internet Gambling Enforcement Act of 2006.
 
“You” or “Your” refers to the person, entity, or organization using software provided by SproutLoud, and any successor or assignee of same.