Springbot™ Services Agreement

PLEASE READ THIS SPRINGBOT SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING THE SPRINGBOT SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

This Agreement is between NSB MARKETING Inc. (“Springbot”), and either the individual who agrees online to accept this Agreement or the company or other entity on whose behalf the individual is agreeing to accept this Agreement (“you” or “your”).

Springbot and you agree as follows:

1. Your Authority
   • IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
2. Springbot Services
   • Springbot is the provider of a service known as “Springbot”. Generally, the Springbot service:

• 1. receives information from you regarding the identification and purchasing activities of visitors (“Your Customers”) to your e-commerce website (the “Your Site”),
  2. uses the information received from you (“Provided Information”) to search and collect certain information from publicly available websites that contain other information about Your Customers (“Your Customer Information”),
  3. receives similar information from other customers of Springbot regarding their customers (“Other Customers”; Your Customers and Other Customers are collectively referred to as “Customers”),
  4. obtains similar information from publicly available websites about Other Customers (“Other Customer Information”; Your Customer Information and Other Customer Information are collectively referred to as “Customer Information”), and
  5. under certain circumstances, provides Customer Information to you and Other Customers.
  6. under certain circumstances, allows you to send communications to your Customers using our Services.

• Springbot is also the provider of a service known as “Onsite Abandonment”. Onsite Abandonment will use Your Customer Information to create a “look-alike audience” of potential new customers., such as requiring the use of Springbot to send email campaigns or sender authentication of your domain. Use of Onsite Abandonment may require agreement to additional terms and conditions.  For the duration of participation in Onsite Abandonment you grant to Springbot a non-exclusive, royalty-free license to use certain provided information for the purpose of providing these services to you, and to use and to grant to other participants the right to use the provided information as part of their participation in the Onsite Abandonment program.

• In order to use all or a portion of Springbot, you will execute, either before or after you agree to the terms and conditions of this Agreement and either on paper or on-line, one or more order forms (each, an “Order”) for such services, that sets forth the specific nature of the services to be provided (“Services”), the amounts payable for the Services, and the identification of Your Site. Springbot agrees to provide you the Services during the Term, in accordance with the terms and conditions of this Agreement.

3. Your Terms of Use and Privacy Policy
   • You agree to review and adjust the privacy policy and terms of use for Your Site in order to authorize the uses of the Provided Information and Your Customer Information in accordance with the terms of this Agreement and any applicable Order. This Agreement places no limits on your use of the Provided Information.
4. Use Limitations
   • You may use the Customer Information provided to you as a part of the Services solely for the purposes of operating Your Site and improving the shopping experience of Your Customers. Without expanding any rights described in the foregoing sentence, you specifically agree not to resell or redistribute Customer Information to any third party whatsoever. Without expanding any rights described in the foregoing sentences, you specifically agree not to modify software, use application programming interfaces, create more accounts than necessary or attempt to gain access in any way to data for which you have not paid.
   • You represent and warrant that your use of the Services will comply with all applicable laws and regulations. You are solely responsible for determining whether your use of our Services is suitable in light of any applicable laws or regulations, including without limitation the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or other laws. We are not responsible for meeting the requirements of laws and regulations applicable to your use of the Services.
   • Your compliance with all laws and regulations applicable to you and the Services includes compliance with those laws and regulations that apply to communications with Your Customers through any medium, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), and any respective federal implementing regulations, and applicable state laws and regulations.
   • You shall not send Spam, as defined on the Spamhaus website, nor will you use purchased, rented, or third party lists of email addresses.
   • You will not violate our Acceptable Use Policy, which is deemed part of this Agreement.
5. Reservation of Rights
   • Customer Information is stored and the Services are provided by Springbot on computers owned or operated by or on behalf of Springbot. This Agreement grants no rights to physically possess or operate any computer software that is used to provide the Services. All rights not granted to you in this Agreement are expressly reserved by Springbot. No rights are granted to you by implication.
6. Term
   • Unless otherwise specified on the Order, the term of this Agreement shall commence upon your agreement to the terms and conditions of this Agreement (“Commencement Date”) and end  upon termination of the “Term”. The Initial Term shall auto renew for additional terms of similar length(each, a “Renewal Term”; the Initial Term and all Renewal Terms are collectively referred to as the “Term”), unless either you or Springbot notifies the other of its intent to terminate this Agreement by giving notice before the end of the existing Term.
   • The Subscription Term cannot be canceled before its expiration.
7. Termination for Cause
   • A party may terminate this Agreement for cause: (i) upon advance written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any termination is without prejudice to any other rights of the parties under this Agreement, at law, or in equity.
8. Refund or Payment upon Termination
   • Upon any termination for cause for your breach, you shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to Springbot for the period prior to the effective date of termination.
   • Springbot will not issue refunds for our monthly plans or additional add on services due to account inactivity or compliance issues.

3. Survival of Terms
   • Upon termination or expiration of this Agreement, and in addition to any provisions that expressly provide to survive any termination of this Agreement, the following provisions shall continue and survive in full force and effect: Sections 1, 3, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, and 22.
4. Payment and Payment Terms
   • Unless otherwise specified on an applicable Order, you shall pay the fees for the Services (“Service Fees”) in advance in accordance with the Initial Term. Service Fees for the Initial Term are set forth in the applicable Order. Unless otherwise specified on an applicable Order, Service Fees are payable on a monthly basis depending on the Service Plan to which you are subscribed. Services Fees are due on or before the first day of each period for which the Services are to be provided. Services Fees may be adjusted at any time by Springbot, by giving you advance notice of any change in Service Fees, which notice may include publication of new fees set forth on Springbot’s website. Springbot may suspend the operation of the Services at any time if you have not paid the Service Fees on a timely basis, without prejudice to any other rights or remedies that Springbot may have. Services Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with the Services.
   • You agree to keep your contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance of each Subscription Term.
5. Springbot’s Use of Customer Information
   • You expressly authorize Springbot to use the Provided Information and Customer Information to provide Customer Information to Other Customers and other users of Springbot’s services. Springbot may use and distribute Customer information that does not contain sensitive personally identifiable information. The rights of Springbot described in this Section are limited by the requirements of applicable law.
6. Proprietary Rights

1. • All code, software programs, processes, methodologies, algorithms, and related know-how and residual knowledge developed, created, or used by Springbot or its agents or third party licensors in connection with the performance of Services hereunder, any documentation relating thereto, and any modifications, enhancements, new versions, or derivative works thereof, and all trade secrets, copyrights, patents, and other intellectual and proprietary rights therein, are Springbot’s Confidential Information and are owned by and remain the property of Springbot or its third party licensors. Further, all data that Springbot provides for use hereunder and all information derived from the use of any of the foregoing is Springbot’s Confidential Information and will remain the property of Springbot or its third party licensors. You acknowledge that in receiving Services hereunder, you will obtain no rights to the Springbot Data beyond the use thereof for the term of this Agreement and subject to the terms and conditions herein.

13. Limitations of Warranty
    • You acknowledge and agree that Springbot receives Customer Information from third party sources that Springbot does not control and has no ability to verify the truth, accuracy, or completeness of the Customer Information. SPRINGBOT DOES NOT GUARANTEE THE TRUTH, ACCURACY, OR COMPLETENESS OF THE CUSTOMER INFORMATION. THE CUSTOMER INFORMATION AND THE SERVICES ARE PROVIDED TO YOU AS IS AND WITHOUT ANY WARRANTY WHATSOEVER. SPRINGBOT DOES NOT WARRANT THAT THE SERVICES WILL BE CONTINUOUSLY AVAILABLE OR THAT THE SERVICES WILL OPERATE ERROR FREE. SPRINGBOT MAKES NO WARRANTY, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF TITLE, AGAINST INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN ANY WAY RELATING TO THE CUSTOMER INFORMATION OR THE SERVICES.
14. Your Warranties
    • The individual indicating his/her agreement to this Agreement represents and warrants that either he/she is entering into this Agreement individually or that (x) he/she is currently employed by or is an agent or representative of the licensee entity, (y) he/she has the authority and legal ability to enter into this Agreement on behalf of the entity, and (z) the entity agrees to be bound by all of the terms of this Agreement.
    • You represent and warrant (on behalf of the entity that you represent) that you have complied and will continue to comply with all notice, disclosure, consent, permission, unsubscribe, and other requirements required by applicable laws and regulations prior to providing Springbot with any Customer Information and permitting Springbot to send communications on your behalf. You further represent and warrant that you have and will continue to honor any opt outs or other requests to unsubscribe or cease communications with Your Customers.
    • You represent and warrant that you feature an easy to find privacy policy on each website and mobile application from which you collect consumer data that complies with applicable laws, and has and will provide: (A) clear and conspicuous notice to consumers that their information will be disclosed to third parties for marketing purposes and the categories of such information that will be shared; and (B) directions to an easy to use mechanism for consumers to opt out of having their information disclosed to third parties and/or used by you for marketing purposes, and you will honor such choices and provide a mechanism by which Springbot can honor such choices. You represent and warrant to Springbot that you will not use or disclose any data provided hereunder (i) in violation of any applicable laws, rules, regulations, self-regulatory guidelines or principles (including, without limitation, the Data & Marketing Association’s guidelines), the rights of any third party, or your privacy policy, or (ii) in connection with credit granting, credit monitoring, account review, collection, insurance underwriting, or employment, or for any other purpose covered by the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq. (“FCRA”)), Federal Trade Commission and/or Consumer Financial Protection Bureau interpretations of the FCRA, or similar federal and state statutes.  Notwithstanding anything to the contrary herein, once a consumer responds to your marketing campaign where Springbot data was utilized in such campaign, your use of such consumer data shall no longer be governed by the terms of this Agreement.
15. Limitation of Liability
    • SPRINGBOT’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT AND THE CUSTOMER INFORMATION IS LIMITED TO THE TOTAL OF ALL FEES MADE BY OR FOR YOU FOR THE SERVICES FOR THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. SPRINGBOT IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA), WHETHER ARISING FROM ANY USE OF THE SERVICES OR CUSTOMER INFORMATION, EVEN IF SPRINGBOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Indemnification
    • You agree to indemnify, defend and hold harmless Springbot and Springbot’s employees, officers, and agents from and against any demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, that arise from or are related to (i) your use of the Services or Customer Information; (ii) your breach of this Agreement (including, without limitation, Section 3); (iii) injury to any person or property caused by any products or services sold or otherwise distributed by you through Your Website; and (vi) your use of the Services or Customer Information in violation of law.
17. Confidentiality
    • The Services and documentation thereof comprises information that is confidential and proprietary to Springbot. You agree to use the Services and documentation with the same care that you treat your own confidential information, which in no case will be less than reasonable care. You agree to use and disclose the functionality of the Services and documentation only as authorized in this Agreement. You agree to cause any individual or entity that uses or has access to the Services and documentation from you to be bound in writing by the obligations of confidentiality at least as restrictive as provided in this Agreement. Upon expiration or termination of this Agreement or upon the earlier written request of Springbot, you shall promptly return to Springbot or, at Springbot’s option, destroy any and all confidential information received by you from or on behalf of Springbot, including any and all copies of the confidential information or summaries or synopses thereof prepared by your or your representatives. This Section shall survive any termination of this Agreement.
18. Audit
    • You shall keep complete and accurate records to allow Springbot to examine and audit your accounts with respect to your uses of the Services and other obligations under this Agreement. You agree to permit Springbot or, at its option, an auditor paid by Springbot, to inspect such records at reasonable times during normal business hours. In the event such audit discloses that the fees previously paid or reported as due to Springbot have been underpaid or under-reported as of the date of the audit, then you shall immediately pay to Springbot the difference and all expenses incurred by Springbot in performing the audit.
19. Force Majeure
    • Neither party shall be liable to the other for any failure or delay caused by any events beyond such party’s control, other than for the payment of money, including without limitation, acts of God, acts of governmental or military authorities, acts of God, terrorism, or Springbot’s failure to provide any information or materials needed in connection with the performance of Services.
20. Notices
    • All notices to Springbot must be made through Springbot’s website, or in writing, and delivered by email to support@springbot.com.
21. Governing Law
    • THIS AGREEMENT AND THE RELATIONSHIP BETWEEN YOU AND SPRINGBOT IS GOVERNED BY THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
22. Conflict Resolution
    • All disputes relating to this Agreement will be solely and finally settled by arbitration conducted pursuant to the Commercial Rules of the American Arbitration Association in Atlanta, Georgia. Judgment on the arbitral award is final and binding and may be entered in any court of competent jurisdiction. The foregoing does not apply to Springbot to the extent it wishes to seek equitable relief for any violation by you.
23. Miscellaneous
    • You shall not assign your rights and duties under this Agreement without the prior written consent of Springbot, such consent not to be unreasonably withheld. Any assignment in violation of this Section shall be void and of no effect. Except as otherwise restricted in this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. All waivers must be in writing to be effective and will not be deemed to have continuing effect. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Headings of particular Sections are inserted only for convenience and are not to be used to define, limit or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another. No modification, extension or waiver of or under this Agreement shall be valid unless made in writing and signed by an authorized representative of the party sought to be charged therewith. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. Except for the payment and other economic terms, this Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.