1. DEFINITION OF THE SERVICE
‘Inspired Marketing’ and ‘inspiredmarketing.co.za’ is the trade name and domain owned and operated by Inspire-d Business Design (Pty) Ltd registration No. 2012/211432/07 situated in Cape Town, South Africa. Inspired Marketing is a Digital Marketing Agency providing marketing communication services on behalf of contracted Clients, approved suppliers and other persons or entities in accordance with the agreed services as set out in the Marketing Service Agreement or as commissioned from time to time.
2. DEFINITION OF CLIENTS AND APPROVED SUPPLIERS
‘Clients’ are persons (a natural person or legal beneficiary) who place orders, or enter into an agreement of service, with Inspired Marketing, either verbally or in writing. ‘Approved Suppliers’ are persons (a natural person or legal beneficiary) who are approved to supply digital platforms and/or marketing services offered by Inspired Marketing, and who are authorized to promote and/ or operate their business activities through Inspired Marketing.
3. DEFINITION OF SERVICES TARIFF AND RATE CARD
The service tariff, exclusive of VAT, is set out in the Inspired Marketing Rate Card and subject to change as published from time to time.
4. SUPPLY OF SERVICES
Inspired Marketing and/ or its approved suppliers offer and supply services to the client, and the client receives the said services under the terms and conditions set out herein, as well as any additional terms and conditions set out in Inspired Marketing and Platform Operators agreements and terms of service, quotations/estimates, invoices and other documents that may be applied when supplying the client at the time of purchase.
5. CLIENT DATA
‘Client Data’ means any data, information, or material that Client provides to Inspired Marketing and the SaaS Platform. Inspired Marketing does not own Client Data. Client Data is Client’s proprietary and confidential information, and will not be accessed, used, or disclosed by Inspired Marketing except for the limited purpose of supporting Client’s use of the SaaS Platform.
6. INTELLECTUAL PROPERTY
6.a. All intellectual property in the Inspired Marketing business system, including but not limited to the text, diagrams, algorithms, equations, methods and concepts incorporated in the Inspired Marketing business system (insofar as same are not the intellectual property of other persons), the Inspired Marketing system processes and methods, the trade name ‘Inspire-d Business Design (Pty) Ltd’, ‘Inspired Marketing’, ‘inspiredmarketing.co.za’, the Inspired Marketing Logo, Trademark, Taglines, shall be, and continue to remain, the sole property of Inspire-d Business Design (Pty) Ltd. The client shall not question or dispute the ownership of such Intellectual Property at any time during the continuation in force of this agreement or thereafter. The client receipt of services will not entitle the client to any rights in and to the said Inspired Marketing business system, including the Logo, Trademark, Taglines, or the right to alter the system in any way.
6.b. Apart from receipt of services and the application of platforms and services, the client may not, without the written permission of Inspired Marketing, make use of the intellectual property referred to in clause 6.a. above. In particular, but without limiting the generality of the aforegoing, the client may not copy or replicate in any form, any part, or the entirety of, the Inspired Marketing business system.
It is recorded that, as a necessary part of the client receiving services from Inspired Marketing, the client may disclose confidential information to Inspired Marketing. Inspired Marketing and shall not disclose to any other person information of a confidential nature that is received or developed during the course of the client receiving services. However, Inspired Marketing is entitled to and shall disclose statistical information without notifying the client. Inspired Marketing is entitled to make use of the statistical information for the purpose of statistical analysis and the production of statistics and is entitled to make use of these statistics as it deems fit, which use shall include, but is not limited to, disclosure to the general public; disclosure to any person; the sale of statistical information and the right to profit by such sales and the right to use such statistical information to develop any product or method or any other thing. The client or respondents have no claim to any monies accruing to or received by Inspired Marketing, or any other person, pursuant to Inspired Marketing use of statistical information in terms of this clause.
8. EXCLUSION OF LIABILITY
Inspired Marketing does not warrant that the Inspired Marketing service and/ or system is fit for any particular purpose. In particular, and without limiting the generality of the aforesaid, Inspired Marketing does not warrant that the client receipt of services, advice or use of platforms operated by the Inspired Marketing business system shall produce any particular results for the client or for any other person. Furthermore, Inspired Marketing will not be held liable for any loss of or damage to property resulting from the provision of any of its goods or services. Client agrees to adhere to all policies, rules and procedures of all platforms including 3rd party platforms as set out by each platform supplier and indemnify Inspired Marketing from any action arising out of the use of these platforms.
9. TERM OF AGREEMENT AND TERMINATION
Services are offered on an automatic monthly renewable basis and may be terminated by mutual agreement giving one month written notice by either party. In the event of termination of an agreement, the client will be responsible for settlement of account for platform access and services provided, up to the end of the notice period.
In the event of either party (‘the defaulting party’) breaching any term of the Inspired Marketing agreement to supply service and/or these Terms and Conditions, after having received fourteen days written notice to remedy such breach, then the other party (‘the aggrieved party’) shall have the right, notwithstanding anything to the contrary herein contained, and without prejudice to any other rights the aggrieved party may have, to:
10.a. institute legal action for specific performance in terms of the agreement;
10.b. cancel the agreement.
INSPIRE-D Business Design (Pty) Ltd Reg.2012/211432/07
1.1. Effective Date. The effective date of this Agreement is the 19th of September 2016
1.2. Agreement. Welcome to SharpSpring! SharpSpring, Inc. (“ SharpSpring” or “ Company“) recommends that you read the following terms and conditions carefully. By accessing or using the SharpSpring website, the SharpSpring Service, including any software applications made available by SharpSpring (together, the “ Website” or “ Service“), however accessed or used, you agree to be bound by these terms (the “ Terms of Service” or the “ Agreement“). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between SharpSpring and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.
1.3. Paid Software. In addition to this Website, SharpSpring provides paid-for software as a service for marketing automation and analytics. Additional terms apply to this software. Please see Section 6 (Software as a Service) for full details.
1.6. Arbitration and Remedies. These terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 22 (Dispute Resolution) for full details.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
4.2. If you are under the age of 18, you may use the Service only with permission of a parent or guardian.
4.3. Corporate Use. If you are using the Service on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
Subject to your compliance with these Terms of Service, as well as any separate SaaS agreement you enter into, SharpSpring grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the SharpSpring websites (located at the following URLs: sharpspring.com, marketingautomation.services, freemarketinganalytics.com, and freemarketingautomation.com), and to use the Service. The Service, including any portion of the SharpSpring Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of SharpSpring. All rights not expressly granted in this Agreement are reserved by SharpSpring. Without limitation, this Agreement grants you no rights to the intellectual property of SharpSpring or any other party, except as expressly set forth herein. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if you breach, actually or potentially, in the sole judgment of SharpSpring, any provision of this Agreement.
6. Software as a Service.
SharpSpring provides software as a service for marketing automation and analytics (the “ SaaS“).
6.1. Separate SaaS Agreement. To use the SaaS, you must accept a separate written agreement, which may be titled SharpSpring Subscription Terms or SharpSpring Partner Terms or a similar name (the “ SaaS Agreement“). The SaaS Agreement will contain the full legal terms for your use of the SaaS, including payment terms, the scope of software and professional services SharpSpring will provide, the term during which you may use the SaaS, support terms, confidentiality obligations, and other material terms.
6.3. Software Updates. One major benefit of SaaS is that our software is continually updated. To deliver this benefit, SharpSpring reserves the right, in its sole discretion, to update, modify, or remove the features, functionality, or other aspects of its SaaS at any time.
7. Assumption of Risk; Release.
You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify SharpSpring, Inc. and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the “ Company Parties“) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
8. User Account, Accuracy, and Security.
8.1. User Account. To use the Service, you must register and create a user account (“ Account“). During the Account creation process, you will be asked to provide information that personally identifies you (“ Personal Information“).
8.3. No Pseudonyms. You must use your real name on SharpSpring; pseudonyms are not allowed. Any use of a pseudonym violates Section 8.2 (Account Information Accuracy) and is cause for suspension or deletion of your Account.
8.4. Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You are entirely responsible for maintaining the confidentiality of your password. You may not use the username or password of any other user at any time, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify SharpSpring immediately of any unauthorized use of your Account. SharpSpring shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by SharpSpring, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your Account.
9. Consent to Receive Electronic Communications from Company.
By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you hereby expressly consent to receive electronic and other communications from SharpSpring, over the short term and periodically, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to email@example.com. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
10.1. Subscription Fees. As discussed in Section 6 (Software as a Service), SharpSpring is a paid SaaS service. Your “ Subscription” and the fees, billing terms, renewal provisions and termination provisions for using the SaaS will be established by a separate written agreement; see Section 6.1 (Separate SaaS Agreement). Such paid SaaS service may be procured through one of our premium partners.
11. Reserved Rights for Company’s Fees.
SharpSpring’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including the collection of regularly recurring fees from you, shall not affect SharpSpring’s later ability to exercise such right or require such performance at any later time. Nor shall SharpSpring’s waiver of your breach constitute a waiver of any later breach by you or any other user of the Service. By using the Service, you authorize SharpSpring, and/or its payment processor, to charge SharpSpring’s fees to the credit card, debit card, or other payment method you provide, in addition to applicable sales taxes and other taxes.
12. Third Party Websites.
The Service is linked with the websites of third parties (“ Third Party Websites“), some of whom may have established relationships with SharpSpring and some of whom may not. SharpSpring does not have control over the content and performance of Third Party Websites. SharpSpring has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, SharpSpring does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. SharpSpring disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
13. Third Party Integrations.
SharpSpring offers optional and user-configurable integrations with third party services and applications. By connecting your SharpSpring account to a third party account, you consent to the continuous release of information about you, of your User Content, and of other data from your SharpSpring account, to others in accordance with the privacy policies of those third parties. If you do not want to share your information this way, do not use this feature.
14. User Content.
14.1. User Content Defined. “ User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that you submit, upload, and/or post to, or transmit, display, perform, or distribute by means of the Service, whether in connection with your use of the Service or otherwise. This includes, without limitation, personal photos and videos.
14.2. You Own Your User Content. SharpSpring does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to your User Content.
14.3. License of User Content. By submitting, uploading, or posting User Content in any form with, through, or to the Service, you thereby grant the Company Parties a royalty-free, perpetual, non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable, revocable (as set forth in Section 5 (License) of this Agreement), assignable license to copy or otherwise reproduce, modify, adapt, translate, distribute, enhance, transmit, publicly display or perform, reformat, and/or otherwise use User Content in connection with the operation of the Service, or any other similar or related business, in any medium now existing or later devised, including without limitation in advertising and publicity. You further agree that the Company Parties may publish or otherwise disclose your personal information in connection with their exercise of the license granted under this section. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Company Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section.
14.4. Your Representations About User Content. You hereby represent and warrant that you: (a) own all rights, title, and interest in and to all User Content you submit, or are otherwise authorized to grant the rights provided the Company Parties under this section; or (b) have written consent, release, and/or permission of every identifiable individual person in any User Content you submit to use the name and likeness of every identifiable person in the User Content. You agree that you will not submit any User Content that does not fully comply with SharpSpring’s prohibitions against Objectionable Content, as detailed in Section 16 (Objectionable Content).
14.5. Company’s Right to Reject User Content. SharpSpring reserves the right, in its sole discretion, to reject any User Content for any reason. The categories specified in Section 16 (Objectionable Content) and Section 17 (Prohibited Uses) are not exhaustive lists of content that SharpSpring reserves the right to remove or deny.
15. Your Responsibility for Defamatory Comments.
15.1. You agree and understand that you may be held legally responsible for damages suffered by other users or third parties as the result of your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under Section 230 of the Federal Communications Decency Act of 1996, SharpSpring is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.
15.2. If you raise or file any claim against SharpSpring for conduct that a Court of Competent Jurisdiction later finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent thereof, you agree to fully and immediately compensate SharpSpring for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate SharpSpring for any such claim, you hereby agree and authorize SharpSpring to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
16. Objectionable Content.
17. Prohibited Uses.
SharpSpring imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:
17.1. harassing or stalking any person, or contacting any person who has requested not to be contacted
17.2. providing false, misleading, or inaccurate information to SharpSpring or any other person in connection with the Service
17.3. impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity
17.4. modifying or changing the placement and location of any advertisement posted through the Service
17.5. harvesting or otherwise collecting information about users, including email addresses and phone numbers
17.6. without express written permission from SharpSpring, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites
17.7. accessing content or data not intended for you, or logging into a server or account that you are not authorized to access
17.8. attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization
17.9. interfering or attempt to interfere with the use of the Service by any other user, host, or network, including (without limitation) by means of submitting a malware or exploiting software vulnerabilities
17.10. using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services
17.11. forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers)
17.12. while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising
17.13. attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable
17.14. creating additional accounts to promote your (or another’s) business, or causing others to do so
17.15. paying anyone for interactions on the Service
18. Intellectual Property.
18.1. Compliance with Law.
18.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
18.1.2. You hereby represent and warrant that you are the sole and exclusive owner of any User Content that you submit through the Service. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Service. SharpSpring users bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.
18.2. Trademarks. SharpSpring and the SharpSpring logo (collectively, the “ Company Marks“) are trademarks or registered trademarks of SharpSpring. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of SharpSpring, and you agree to assign, and hereby do assign, all such goodwill to SharpSpring. You shall not at any time, nor shall you assist others to, challenge SharpSpring’s right, title, or interest in, or the validity of, the Company Marks.
18.3. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the SharpSpring logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by SharpSpring or are the property of SharpSpring’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials.
18.4. DMCA Policy.
18.4.1. As SharpSpring asks others to respect SharpSpring’s intellectual property rights, SharpSpring respects the intellectual property rights of others. SharpSpring follows the notice and takedown procedures in the Digital Millennium Copyright Act (“ DMCA“).
18.4.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify SharpSpring by means of emailed DMCA takedown notice (“ Infringement Notice“), providing the information described below. If SharpSpring takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available by means of the most recent email address that party provided to SharpSpring.
18.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
18.4.4. The DMCA requires that all Infringement Notices must include the following:
18.104.22.168. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
22.214.171.124. An identification of the copyright claimed to have been infringed;
126.96.36.199. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit SharpSpring to find and positively identify that material;
188.8.131.52. Your name, address, telephone number, and email address; and
184.108.40.206. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
18.4.5. Infringement Notices should be sent to firstname.lastname@example.org with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.
18.4.6. SharpSpring will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
18.4.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen database (https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.
19. Disclaimers; Limitation of Liability.
19.1. No Warranties. SharpSpring, on behalf of itself and its licensors and suppliers, hereby expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither SharpSpring nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. SharpSpring disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. SharpSpring shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of SharpSpring, Company Parties, or SharpSpring users, or their agents or representatives.
19.2. Your Responsibility for Loss or Damage; Backup of Data.
19.2.1. You agree that your use of the Service is at your sole risk. You will not hold SharpSpring or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
19.2.2. Importantly, you hereby acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
19.3. Limitation of Liability. In no event shall SharpSpring or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to SharpSpring or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between SharpSpring and you. The Service would not be provided without such limitations.
19.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and SharpSpring or between you and any of SharpSpring’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. SharpSpring’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
20. Your Representations and Warranties.
You represent and warrant that your use of the Service will be in accordance with this Agreement and any other SharpSpring policies, and with any applicable laws or regulations.
21. Indemnity by You.
21.1. Without limiting any indemnification provision of this Agreement, you (the “ Indemnitor“) agree to defend, indemnify, and hold harmless SharpSpring and the Company Parties (collectively, the “ Indemnitees“) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “ Claim“, and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to SharpSpring, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to:
(i) the relationship between you and SharpSpring, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory;
(ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement;
(iii) your access to or use of the Service;
(iv) your provision to SharpSpring or any of the Indemnitees of information or other data;
(v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or
(vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
21.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
21.3. Without limitation, the Indemnitor also hereby agrees to compensate SharpSpring for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 17 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
22. Dispute Resolution.
22.1. Binding Arbitration.
22.1.1. If you and SharpSpring cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
22.1.2. You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.
22.1.3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
22.1.4. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA“), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, SharpSpring will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also hereby agree to reimburse SharpSpring for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. SharpSpring may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys’ fees) at any time during the proceeding and upon request from either party, within 14 days of the arbitrator’s ruling on the merits.
22.2. Restrictions Against Joinder of Claims.
22.2.1. You and SharpSpring agree that any arbitration shall be limited to each Claim individually. You and SharpSpring hereby agree that each may only bring claims against the other in your or SharpSpring’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
22.2.2. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
22.3. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or SharpSpring from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or SharpSpring from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of Florida.
22.4. Venue for any Judicial Proceeding.
22.4.1. This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Florida, and shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
22.4.2. The proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to Gainesville, Florida. The parties hereby stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
23.1. By Company. Without limiting any other provision of this Agreement, SharpSpring reserves the right to, in SharpSpring’s sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
23.2. Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by SharpSpring.
23.3. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to SharpSpring notice of your intention to do so, in the manner required by Section 24 (Notices).
23.4. Effect of Termination.
23.4.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, SharpSpring may, but has no obligation to, in SharpSpring’s sole discretion, rescind any services and/or delete from SharpSpring’s systems all your Personal Information and any other files or information that you made available to SharpSpring or that otherwise relate to your use of the Service. Upon termination, you shall cease any use of the Service.
23.4.2. After termination, SharpSpring reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
23.5. Legal Action. If SharpSpring, in SharpSpring’s discretion, takes legal action against you in connection with any actual or suspected breach of this Agreement, SharpSpring will be entitled to recover from you as part of such legal action, and you agree to pay, SharpSpring’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing.
24.1. SharpSpring shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to SharpSpring. You agree that any notice received from SharpSpring electronically satisfies any legal requirement that such notice be in writing.
24.2. You bear the sole responsibility of ensuring that your email address on file with SharpSpring is accurate and current, and notice to you shall be deemed effective upon the sending by SharpSpring of an email to that address.
24.3. You shall give any notice to SharpSpring by means of email to email@example.com.
25.1. Entire Agreement. This Agreement constitutes the entire agreement between SharpSpring and you concerning your use of the Service.
25.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion hereof, which shall remain in full force and effect, and the parties hereby acknowledge and agree that they would have executed the remaining portion hereof without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
25.3. Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of SharpSpring, or by the unilateral amendment of this Agreement by SharpSpring along with the posting by SharpSpring of that amended version.
25.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
25.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of SharpSpring. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
25.6. Independent Contractors. You and SharpSpring are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
25.7. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; SharpSpring’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 12 (Third Party Websites), Section 19.4 (Application of Disclaimers).
25.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to SharpSpring and SharpSpring’s licensors and suppliers, and would therefore entitle SharpSpring or SharpSpring’s licensors or suppliers, as the case may be, to injunctive relief.
25.9. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.