Terms of Sale
SproutsIO, Inc. Terms and Conditions of Sale
These Terms and Conditions of Sale are a legal agreement (the “Agreement”) between you (together with the business entity, if any, that you represent, “Buyer” or “you”) and SproutsIO, Inc., a Delaware corporation, with its principal place of business at 25 Mount Auburn Street, Suite G104, Cambridge, MA 02138 (“SproutsIO,” “we,” “us,” or “our”), establishing terms and conditions under which Buyer shall purchase SproutsIO products (“Products”) and, in connection with such Products, to access and use the services and features (the “Services”) available on or through the SproutsIO Platform (as defined below) made available to customers via our website at https://sprouts.io and its subdomains (“Website”). The earlier of the date Buyer first agrees to or accepts this Agreement, or that Buyer otherwise first receives any Products or accesses and uses the SproutsIO Platform is referred to herein as the “Effective Date.” If Buyer’s order of Products is deemed an offer, SproutsIO’s acceptance is expressly conditional on Buyer’s acceptance of the terms of this Agreement; if the terms of this Agreement are deemed an offer by SproutsIO, Buyer’s acceptance is expressly limited to these terms. Any additional terms or conditions (preprinted or otherwise) proposed by Buyer shall not become a part of this Agreement. Terms or conditions contained in Buyer’s purchase order or other form containing terms and conditions shall have no force or effect. This Agreement may be established through signature of both parties, through on-line click through process or this Agreement may be established through Buyer’s agreement to SproutsIO’s quote or proposal referencing these terms.
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, BEFORE YOU AGREE TO PURCHASE PRODUCTS, OR BEFORE YOU OTHERWISE INDICATE ACCEPTANCE OF THIS AGREEMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR BY ORDERING THE PRODUCTS OR USING THE SPROUTSIO PLATFORM, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AS THE “BUYER.” YOU REPRESENT AND WARRANT TO SPROUTSIO THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO SPROUTSIO TO ENSURE THAT ALL SUBSEQUENT PURCHASERS OR USERS OF THE PRODUCT ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT” AND DO NOT ORDER THE PRODUCTS OR ACCESS AND/OR USE THE SPROUTSIO PLATFORM.
1. General; Pre-Sales. These SproutsIO Terms and Conditions, all Addenda hereto (if any) issued by SproutsIO, the accompanying quotation or proposal issued by SproutsIO or its authorized representative in printed, electronic, on-line (on the Website or otherwise) or other form (a “Quote”, and collectively, the “Agreement”) shall exclusively govern SproutsIO’s sale of Products to Buyer and Buyer’s use of the SproutsIO Platform. When placing an order for the Products, you will be required to provide certain information, such as your address and billing information. You covenant that all such information is true and correct. If Buyer is ordering the Product on a pre-sales basis, as established in the applicable Quote, then the Product is not yet available for shipment and SproutsIO cannot guarantee a delivery date. Inthe event of any conflict between a Quote and these Terms and Conditions, these Terms and Conditions shall control.
2. Price. Unless expressly stated otherwise in a Quote, the price(s) for the Products will be those listed in the accompanying Quote and expire thirty (30) days from the date thereof, unless sooner changed by SproutsIO on the Quote. Additional fees may apply to access to the SproutsIO Platform. Unless expressly stated otherwise in a Quote, prices exclude all insurance, freight, federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by Buyer directly or, if paid by SproutsIO, shall be paid by Buyer to SproutsIO within 30 days of invoice of the same delivered by SproutsIO to Buyer. Buyer will be invoiced at the time of shipment of each Product. Except as otherwise agreed in writing by SproutsIO, Buyer shall pay invoices in full within thirty (30) days of the date of invoice. All amounts not paid when due will accrue interest at the rate of 1.5% per month, or the maximum amount allowed by law, whichever is lower. If Buyer’s account is referred to an attorney or collection agency for collection, Buyer shall pay SproutsIO’s expenses incurred in such collection effort including, without limitation, reasonable legal fees and expenses.
3. Shipment. All sales shall be F.C.A. (Incoterms 2010) shipping point. Title (except for software and the SproutsIO Platform, for which SproutsIO shall retain title) and risk of loss shall pass to Buyer upon the earlier of delivery of the Products to the Buyer or a carrier for shipment to the Buyer. SproutsIO will use reasonable efforts to meet requested shipping dates, but will not be liable for any failure to do so. All shipments will be made at Buyer’s risk.
4. Access and Use Terms; Subscription Period; Confidentiality and Data.
(a) Access and Use Rights. SproutsIO hereby grants to Buyer, on the terms and conditions set forth herein, a non-transferable, non-sublicensable, non-exclusive, limited right to access and use the SproutsIO Platform during a subscription period (“Subscription Period”) set forth in the Quote solely for use in connection with the Products, through login credentials to be provided or enabled by SproutsIO (“Login Credentials”). Buyer is responsible for all users who access and use the SproutsIO Platform using unique Login Credentials provided by SproutsIO to Buyer or otherwise established by Buyer on the SproutsIO Platform. If no Subscription Period is specified for the SproutsIO Platform, then the Subscription Period will be one (1) year from delivery of the applicable Product.
(b) Subscription Period Renewals. The Subscription Period for the SproutsIO Platform shall automatically renew for successive one (1) year periods at SproutsIO’s then current pricing for such subscriptions, unless Buyer terminates such subscription by delivery of written notice at least thirty (30) days prior to such renewal.
(d) Feedback. If you provide any suggestions, feedback or other proposed enhancements or modifications (“Feedback”) to SproutsIO regarding the Product or SproutsIO Platform, then you hereby grant to SproutsIO a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable (through one or more tiers), transferable license under such Feedback, and all intellectual property therein, to exploit and distribute the Feedback in connection with the Products, SproutsIO Platform and any new products or services.
5. Limited Warranty.
(a) Limited Warranty. The limited warranty set forth herein applies only to the Buyer, may be acted upon only by the Buyer, and may not be assigned, sold or transferred to any third party. SproutsIO warrants only to the Buyer that, for the applicable warranty period set forth below, the Product shall substantially conform to SproutsIO’s published specifications as of the date of shipment. The warranty period shall be set forth in the applicable Quotation for each Product. The limited warranty herein shall not apply to (i) any Product that has been customized, altered or repaired by any person or entity other than personnel of SproutsIO or personnel specifically authorized by SproutsIO, (ii) any Product that has been subjected to abuse, misuse, damage, neglect, or accident beyond SproutsIO’s published limitations for the Product or other causes external to the Products (including, without limitation, environmental conditions and power conditions), (iii) use of the Product in combination with products or software not supplied by SproutsIO, (iv) any use or operation of the Product other than in accordance with SproutsIO’s then-current published specifications and instructions for the Product, or (v) any non-conformities or defects notified by Buyer to Seller with respect to a Product after the expiration of the applicable warranty period for such Product.
(b) Remedies. Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability for a breach of this limited warranty shall be, at Seller’s option, Seller’s use of its commercially reasonable efforts to repair or replace the non-conforming Product. If SproutsIO is unable, after reasonable efforts, to repair or replace such substantially non-conforming Products, SproutsIO, may, at its sole discretion, elect to refund of an amount not to exceed the actual payments received by SproutsIO for such Product(s). Buyer shall not return any Product to SproutsIO without an SproutsIO-issued RMA number. Shipping costs and the risk of loss for a returned Product shall be borne solely by SproutsIO, and SproutsIO shall assume the risk of loss while the Product is in the SproutsIO facility. Products that are repaired or replaced by SproutsIO shall be covered by this limited warranty for the remaining warranty period for such Product.
(c) Disclaimers. THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT) WITH RESPECT TO THE PRODUCTS, THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING OF THE PRODUCTS, SERVICES RELATED THERETO OR THE USE, RESULTS OR DISPOSITION OF THE PRODUCTS. SPROUTSIO EXPRESSLY DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL) WITH RESPECT TO THE RESULTS OBTAINED FROM THE PRODUCT OR SPROUTSIO PLATFORM. SPROUTSIO DOES NOT WARRANT THAT THE USE OF THE PRODUCT OR SPROUTSIO PLATFORM SHALL BE UNINTERRUPTED OR ERROR-FREE.
6. Limitation of Liability.
(a) No Indirect Damages. IN NO EVENT SHALL SPROUTSIO (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE TO BUYER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF THE PRODUCTS OR SPROUTSIO PLATFORM, MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING OF THE PRODUCTS, SERVICES RELATED THERETO OR THE USE, RESULTS OR DISPOSITION OF THE PRODUCTS, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
(b) Limited Direct Damages. SPROUTSIO (AND ITS SUPPLIERS’ AND LICENSORS’) LIABILITY ARISING OUT OF PRODUCTS AND THE SPROUTSIO PLATFORM, THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING OF THE PRODUCTS, SERVICES RELATED THERETO OR THE USE, RESULTS OR DISPOSITION OF THE PRODUCTS, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE APPLICABLE PURCHASE PRICE PAID BY BUYER FOR THE APPLICABLE PRODUCT OR SERVICE IN THE THEN-PRIOR TWELVE (12) MONTHS.
(c) Use of Products at Buyer’s Risk. BUYER ASSUMES SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES OF BUYER OR ANY THIRD PARTY ARISING FROM USE OF THE PRODUCTS AND THE SPROUTSIO PLATFORM AND PLANTS GROWN USING THE PRODUCT. BUYER SHALL BE SOLELY RESPONSIBLE FOR SPROUTSIO SHALL HAVE NO RESPONSIBILITY FOR (1) PROPERLY DISPOSING OF WASTES, PLANTS, AND OTHER MATERIALS RELATING TO OR ARISING FROM USE OF THE PRODUCTS AND (2) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM OR ALLEGED TO RESULT FROM THE PRODUCTS OR SPROUTSIO PLATFORM. BUYER IS SOLELY RESPONSIBLE FOR ENSURING THAT BUYER’S USE OF THE PRODUCTS AND SPROUTSIO PLATFORM COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS.
7. Intellectual Property; Software. No sale of any Product, and nothing in this Agreement, shall be construed as granting to Buyer any license or other proprietary or intellectual property right applicable to the Products or the SproutsIO Platform. Buyer may not alter or remove, and shall abide by, any patent, trademark, copyright, trade secret, proprietary or other notices contained on or in the Products. With respect to any software installed in the Products (the “Software”), SproutsIO and Buyer intend and agree that such software is being licensed and not sold, and that the words “purchase”, “sold” or similar or derivative words are understood and agreed to mean “license” and that the word “Buyer” or similar or derivative words is understood and agreed to mean “Licensee”. SproutsIO (and its licensors) retain exclusive ownership of and title to all Software and the SproutsIO Platform, notwithstanding anything to the contrary stated herein. Subject to the terms and conditions of this Agreement, SproutsIO grant to Buyer a royalty-free, non-exclusive, non-transferable license, without right to sublicense, to use Software in object code only as installed by SproutsIO in the Product hardware delivered hereunder and solely for Buyer’s won internal business purposes in accordance with user documentation provided by SproutsIO. The foregoing license is transferable only upon the resale of the Product in accordance with Section 9. Buyer shall not (a) modify, copy, enhance, make derivative works of the Software or the SproutsIO Platform or (b) disassemble, decompile, reverse engineer or otherwise derive human readable code from the Software or the SproutsIO Platform. Unless expressly allowed by applicable law, Buyer agrees to hold in confidence the Software and related documentation supplied hereunder and not to disclose or make available in any form the same, except to our and Buyer’s employees and agents. If applicable law requires or expressly permits access to such source code for the purpose of achieving interoperability with other software, and the Buyer desires access for that required purpose, Buyer shall notify SproutsIO in writing, detailing the basis for such access. On receipt of Buyer’s notice, SproutsIO shall have the option, in its discretion, to (i) perform the work to derive any required information or (ii) allow Buyer or its access to the relevant section of the source code of the Software solely for the legally required purpose. SproutsIO shall have the right to terminate this license upon written notice to Buyer if Buyer fails to comply with any term or condition herein. In the event that an injunction is obtained against Buyer’s use of a Product or the SproutsIO Platform by reason of infringement of an intellectual property right, or if in SproutsIO’s opinion such an injunction is likely, SproutsIO may, at SproutsIO’s option and expense, (i) procure for Buyer the right to continue using the Product and the SproutsIO Platform, (ii) replace or modify the Product or the SproutsIO Platform so that it becomes non-infringing, or (iii) accept the return of the Product and refund to Buyer the purchase price therefor (but not any subscription fees for the SproutsIO Platform) as depreciated on a straight-line five-year basis.
8. Indemnification. SproutsIO shall defend, indemnify and hold Buyer harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to a third party to the extent caused by a claim alleging that the SproutsIO Products directly infringe a copyright, a U.S. patent issued as of the Effective Date or a trademark of any party. Buyer shall defend, indemnify and hold SproutsIO, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to a third party to the extent caused by (i) the use of the Products and/or SproutsIO Platform by Buyer; (ii) any results obtained through use of the Products or access to SproutsIO Platform or (iii) Buyer’s gross negligence or willful misconduct. A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such claim, action or proceeding, (ii) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.
9. Resale. Subject to the terms and conditions of this Agreement (including, without limitation, Sections 10, 11 and 12), Buyer shall have the right to resell or transfer the Product to any third party (an “End User”), provided that (a) Buyer makes such sale pursuant to binding terms and conditions no less protective of SproutsIO and the Product than Sections 4(c), 4(d), 5(c), 6, 7, 8, this Section 9 (with respect to further resales), 10, 11 and 12, (b) Buyer makes no representation or warranty on behalf of SproutsIO, (c) Buyer fairly and accurately represents the Product at all times only in accordance with the express statements in SproutsIO’s written documentation, and (d) Buyer ensures that this Agreement and SproutsIO’s user manual and all applicable warnings are delivered to each and every End User of the Product.
10. Export Controls. Buyer shall strictly comply with all applicable export laws, controls and regulations. Buyer shall not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical data, materials or documents or any product thereof to any country (or any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of SproutsIO and the applicable U.S. Government agency.
11. Force Majeure and Allocation. If either party’s performance under the Agreement (except payment of monies due) is prevented, restricted, or interfered with by reason of casualty, accident, fire, strikes or labor disputes, terrorist acts, inability to procure materials or components, power or supplies, war or other violence, compliance with any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency or intergovernmental body (including, without limitation, those related to infringement), production delays, or any other act, circumstance, or condition whatsoever beyond such party’s or its suppliers’ or licensors’ reasonable control, the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. SproutsIO may allocate its available supply of Products among any or all of its customers on such basis as it may deem fair and practical, without liability for any failure to comply with the provisions of the Agreement with respect to delay in supplying such Products.
12. Miscellaneous. This Agreement constitutes the entire agreement between Buyer and SproutsIO with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the subject matter hereof. Modifications may be made only in writing, signed by an authorized corporate officer of SproutsIO. The waiver of any term or condition or any breach thereof shall not affect any other term of condition of this Agreement. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Buyer shall not assign this Agreement without SproutsIO’s prior written consent. Termination of this Agreement will not relieve Buyer of any payment obligations hereunder. Sections 1, 2, 3, 4(c), 4(d), 5, 6, 7, 8, 9, 10, 11 and 12 shall survive this termination of this Agreement according to their respective terms. If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of any authority having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall remain in full force and affect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision. This Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. SproutsIO and Buyer are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. SproutsIO shall not be liable for failure to perform any of its obligations hereunder by reason that are beyond its reasonable control, including, without limitation, fire, blood, earthquake, interruptions in supply, other natural disaster, war embargo, riot or acts of terrorism.
SproutsIO Terms and Conditions Version: November 28, 2016