legal
Service Agreement and Terms of Use
SpoutUp ("SpoutUp," "we," or "us") offers a variety of marketing solutions tailored for businesses of all sizes (the "Services"). Your Service Agreement (the "Agreement"), Service Order (the "Order"), or Online Order Form (the "Form") specifies the Services purchased, identifies the contracting party ("Client," "you," or "your," collectively the "Parties" with SpoutUp), outlines costs, the minimum Initial Term, and other pertinent details. For purposes of this Agreement, "Service Agreement" encompasses any Service Agreement, Service Orders, Online Order Forms, or a combination thereof. These Terms of Service ("Terms") are incorporated into and integral to any Service Agreement with SpoutUp, governing your relationship with us. Effective from the date of signing the Service Agreement ("Effective Date"), these Terms of Service remain in force until terminated as described herein. The Agreement, including the Terms of Service and referenced documents, collectively constitute the "Agreement." You can review these Terms of Service anytime at
SPOUTUP PROVIDES THE SERVICES AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPTS AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERVICE ORDER OR BY CHECKING THE “ACCEPT” BOX ON THE SIGNUP ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, SPOUTUP DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY SPOUTUP, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
THE SERVICE AGREEMENT, SERVICE ORDER, AND/OR ONLINE ORDER FORM, TOGETHER WITH THESE TERMS OF SERVICE, THE SPOUTUP PRIVACY POLICY LOCATED AThttps://spoutupgroup.com/terms-of-service/, THE SPOUTUP PAYMENTS TERMS OF SERVICE, WHICH GOVERNS ALL USE OF SPOUTUP PAYMENTS AND RELATED SERVICES, LOCATED AT https://spoutupgroup.com/terms-of-service/ (THE “PAYMENT TERMS”), AND ANY OTHER ANCILLARY DOCUMENTS INCORPORATED BY REFERENCE IN THESE TERMS OF SERVICE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. SPOUTUP LIMITS ACCEPTANCE TO THESE AGREEMENTS AND OBJECTS TO ANY OTHER ADDITIONAL OR DIFFERENT TERMS IN THE CLIENT’S ACCEPTANCE.
1. Definitions and Products: The products and services provided by SpoutUp, along with other capitalized terms, are defined in this section or where they are first mentioned.
a. Ads/Ad Credits: Ad Credits enable the deployment of advertisements across digital platforms through SpoutUp's Advertising Plan, encompassing Ads, Retargeting Ads, and Social Targeting Ads programs. Each Ad Credit costs $1.00. Allocation of Ad Credits is as follows: 51% towards media buy (such as paid placements on Google AdWords, Facebook, OTT streaming services, LinkedIn, Instagram, etc.) and 49% towards campaign management and optimization. Please note, the media buy allocation percentage is subject to change without prior notice.
Costs related to Ad Credits, including cost-per-click reporting, are managed through the Ad Credit Program within the SpoutUp platform, facilitating ROI and cost-per-conversion tracking/analysis. Ad Credits are governed by the terms of third-party providers (e.g., Google, Bing, YouTube, Facebook), and availability may vary for certain client products or services.
Performance reports detailing costs, clicks, and impressions at the Google advertising account level can be accessed via links on the Media Shield dashboard, located in the top right-hand corner of the Ads, Retargeting Ads, or Social Targeting Ads pages on your SpoutUp dashboard.
Ad Credits are non-refundable but can be reallocated to other services upon written request (email acceptable). If you cancel your recurring Ad Credit product, unused credits will remain in your account for one billing cycle and must be utilized or transferred during the subsequent monthly billing cycle to avoid forfeiture.
Ad Credits and associated services cannot be utilized until your website has been approved and is live. Actual ad placement on third-party websites depends on various factors; top position placement cannot be guaranteed. Your Marketing Success Manager will optimize your Ads campaign to target the top three ad positions for your keywords, unless otherwise instructed.
During any billing cycle, SpoutUp may utilize the credits on file. We monitor Ad Credit spend to maintain your budget; however, in rare instances, we may exceed your available credits. Any remaining balance at the end of a monthly billing cycle, positive or negative, will carry over to the next cycle. A negative balance at the end of the term is payable at that time.
We operate a master advertising account with each third-party Ad Credit service provider (Google, Bing, Yahoo, Facebook, etc.), where we will set up an advertising account for you. You acknowledge that usage of Ad Credits for these services requires our master advertising account. As all accounts are linked within our master advertising accounts, we do not grant access to view or manage your advertising or analytics accounts at the advertising account level of the respective service provider. Additionally, we do not transfer advertising accounts or related access to you at the end of the term.
You can obtain reports on your advertising performance and Ad Credit usage by logging into the SpoutUp platform at any time or by contacting your Marketing Success Manager, if applicable.
b. Complimentary Promotions: SpoutUp occasionally provides Complimentary Promotions to new Clients who sign a Service Agreement. These promotions consist of funds, credits, or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless specified otherwise, Complimentary Promotions can be used to offset any cost associated with the Service Agreement, except for Ad Credits or third-party advertising media buys. The use of Complimentary Promotions is contingent upon the Client fulfilling the Initial Term. If the Service Agreement is canceled before the Initial Term is completed, the Client must reimburse all Complimentary Promotions used on their account at the time of cancellation, along with any applicable Early Cancellation Fees.
c. Creative Deliverables: Creative Deliverables include Custom Website Design, finalized logo designs, delivered video and photography media, final products of Content and Social Media Management services, and other creative services defined in Section 1.
d. Creative Services/Creative Credits: Our creative services encompass Custom Website Design, logo design, photography services, and general design and development time, among others. These services are facilitated through Creative Credits, each costing one dollar ($1.00) per credit. Your Service Agreement or SpoutUp Representative will outline your specific creative services package and estimate the required Creative Credits for the services. This estimate is based on information provided by you at the time of offer, ensuring that the projected design and development time does not exceed the allocated credits. If additional credits are necessary to complete the project beyond the initial estimate, you will be notified before incurring additional charges. We will proceed only upon receiving your approval (written or oral) and payment for any increased credits. Any unused Creative Credits paid for by the Client will remain valid for one year from the payment date and will then expire. You have the option to purchase additional Creative Credits, usable for any creative services. The cost list for Creative Credits is available upon request. Each Creative Hour equals 75 Creative Credits if you have Creative Hours on file. Creative Hours, Complimentary Creative Hours, and Creative Credits are non-refundable and expire at the end of the Term. Transfer of Creative Hours or Creative Credits to other services requires our written consent. Creative Services are offered at discounted rates for Marketing Customers, and current rates can be provided by your SpoutUp representative. Video Production services have distinct hourly rates outlined in your Service Agreement. For more details on Video Production, refer to Section ae. Our Creative Services rely on your input and cooperation. You agree to provide necessary materials, direction, information, approvals, authorizations, or decisions for us to complete your project. We aim to fulfill your Creative Services project according to your timeline. However, if we do not receive communication from you for over one year, we reserve the right to cancel your project, resulting in forfeiture of any payments made for the Creative Services.
e. CRM (Customer Relationship Management): The SpoutUp CRM is a customer relationship management system integrated into the SpoutUp platform, tailored for small and medium-sized businesses. It is included in both DIY and DIFM plans upon payment of the SpoutUp Base Platform Fee. With the SpoutUp CRM, you can manage up to 25,000 leads, contacts, or customers. Additional contacts may incur extra resources and fees. You can add unlimited team members, create up to 20 custom fields at no extra cost, assign tasks, track deals and sales pipelines, assign contacts to specific team members, and access your CRM from any device with internet connectivity.
Upon signing up for the SpoutUp CRM, a CRM specialist will guide you through the setup and address any initial inquiries. Moving forward, your Marketing Success Manager or a CRM specialist can assist you via email or phone during regular business hours. Access to the SpoutUp CRM is part of the DIY Plan within the SpoutUp Base Plan. However, access may be suspended or terminated if there is a payment dispute or failure to make required payments. We are not obligated to store your CRM records if your SpoutUp CRM account is terminated.
Users participating in the free trial of SpoutUp CRM receive full access during the trial period. Subsequently, monthly access to the CRM requires payment of either the DIY Fee or the SpoutUp Base Fee. All fees paid for the SpoutUp CRM are non-refundable. You can export your CRM data as a .csv file at any time, provided your CRM access is active. Contact your CRM specialist for more details on exporting CRM data.
You are responsible for the information uploaded to the CRM. The CRM is not designed to store sensitive, protected, proprietary, health, or financial data. You agree not to use the CRM for storing such information. It is not PCI compliant, so refrain from storing financial data, social security numbers, or payment processing data. Moreover, it is not HIPAA compliant and should not be used by healthcare service providers for storing HIPAA protected PHI. Any unauthorized use of the CRM obligates you to indemnify us, as outlined in Section 13. For processing CRM data subject to GDPR, refer to the SpoutUp Data Processing Agreement (SpoutUp DPA) under Section 15.j for terms and conditions
f. Custom Website Design: Custom Website Design refers to a unique website that does not utilize our preexisting templates and is created based on an agreed hourly bid and scope of work signed by the Client. All agreements for Custom Website Designs prominently state "Custom Website Design" on your Service Agreement. Websites created using SpoutUp or UXi templates are excluded from Custom Website Designs.
g. eCommerce Website Design: This service encompasses eCommerce website design tailored for popular platforms like BigCommerce, Shopify, Commerce, Shop App, etc. On your service agreement, these services may be specified as "Shopify Design". The development of your website is a dynamic process influenced by various factors, including Client response times for queries and approvals, delivery of website content, and requests for additional revision rounds. Consequently, we cannot guarantee a specific timeline for your website to go live. However, we are committed to minimizing delays on our part and launching your website as promptly as possible.
Unless you have opted for Custom Website Design, your site will be developed using our standard website design templates. For specialized functionalities or intricate design features, Custom Website Design services must be contracted separately. If you choose Custom Website Design, it will be clearly labeled as such on your Service Agreement and will include a detailed scope of work and estimated work hours. Additional details about Custom Website Design can be found in Section 1.n.
h. Email SpoutUp: Email SpoutUp enables you to effortlessly design, create, and dispatch targeted marketing campaigns to your email list using the SpoutUp platform. Whether under the DIY Plan or a DIFM Plan, Email SpoutUp includes 2,500 emails per month at no extra cost. Messages exceeding this limit incur a charge of $0.004 per message ($10 per 2500 messages). Excess charges accumulate throughout the month and are billed alongside your regular monthly marketing payment. Unused messages do not carry over to the following month.
By utilizing Email SpoutUp, you agree to adhere to the SpoutUp Anti-Spam Policy, accessible at SpoutUp.com/antispam, which is integrated into this Agreement by reference. You assert that your use of Email SpoutUp complies with all pertinent laws, encompassing regulations on spamming, privacy, obscenity, defamation, and statutes like HIPAA and other relevant privacy laws. Furthermore, you pledge not to employ Email SpoutUp in a manner that is obscene, harassing, threatening, defamatory, or that breaches any third-party intellectual property rights.
You agree to indemnify and protect SpoutUp against any claims of damages, losses, liabilities, or expenses arising from alleged violations of the aforementioned terms or from your utilization of Email SpoutUp services.
i. Service Fees: Your Service Fees encompass the payments due under your Service Agreement. These fees consist of one-time, monthly, and/or annual charges necessary for utilizing our Services. Additional Products and Services may be included in the Fees if requested during the Term.
j. Local Business Listings: The "Listings" or "Local Listing Ads" initiative facilitates the management, synchronization, and enhancement of your local business listings across numerous local directories using the SpoutUp interface. This service is accessible to Marketing Clients operating physical business locations. With the SpoutUp Base Platform payment, one location is covered under the Listings account. Additional locations can be added at a rate of $35 per month per location.
k. SpoutUp Platform License: The SpoutUp Platform License grants you access to the SpoutUp software platform and certain SpoutUp Services as outlined in your Service Agreement. Your agreement specifies a monthly fee for the SpoutUp Platform License. Included services under the SpoutUp Platform License comprise a limited license for using the SpoutUp software platform throughout the term, optional SpoutUp website license, Email SpoutUp access, on-demand marketing and design services, conversion inbox, SpoutUp CRM access, Top Rated Local Account, cloud storage for up to 10GB of files, a complimentary SpoutUp Payments account (subject to additional terms and processing fees), website hosting for one site, access to the Local Listing Ads Program for one local business location, and a customer support pin number.
All these products and services are available to current SpoutUp accounts that maintain their monthly SpoutUp Platform License Fee. However, availability may vary based on your specific marketing objectives. Certain services may require additional funds or credits for activation. Credits can only be used if your monthly SpoutUp Base Platform Fee is up to date. Services requiring an active website will only be operational once your site is live.
Please note, availability of some third-party products and services may be limited based on the terms and conditions of the respective providers. For clients under a DIFM plan, your Marketing Success Manager will collaborate with you to tailor a SpoutUp plan aligned with your marketing goals, considering factors such as location and budget. If SpoutUp is developing your website, your platform login will be provided upon site completion and approval for going live.
l. SpoutUp Payments: SpoutUp Payments and related services are governed by the SpoutUp Payment Terms located at https://spoutup.com/terms-and-conditions/ (the “Payment Terms”). The Payment Terms are incorporated in full by this reference. If you use SpoutUp Payments services, you hereby agree to be governed by the Payment Terms.
m. Model B Advertising Plan: Under the Model B Plan, you will not be purchasing Ad Credits; instead, you will pay a monthly optimization fee. The Client is responsible for purchasing ads directly from the relevant 3rd party ad provider in their own advertising accounts. Model B pricing is available only for Google, Facebook, Instagram, and LinkedIn Ads; all other ad campaigns will follow the Model A pricing structure. The Client agrees to grant SpoutUp admin access to these accounts during the Term. The monthly Optimization Fee (the “Optimization Fee”) is $4,000 plus 10% of the Client’s monthly 3rd Party Media Buy total from the prior month. SpoutUp will manage all of the Client’s ad campaigns for this fixed monthly Optimization Fee. Your Marketing Success Manager will calculate your actual monthly spend for the previous month before your monthly billing date, and you will receive an additional invoice each month equal to 10% of your actual ad spend from the prior month. Model B is recommended for Clients consistently spending more than $10,000 per month on Ad Credits
n. Content/Natural Listing Ads : "Content," also known as "Natural Listing Ads" Services, are utilized to provide written content, graphic design, video, and other media for your website or social media profiles under SpoutUp's DIFM accounts, utilizing a monthly or one-time Content credit budget. Content Credits, also known as NLA Credits, power this program at a cost of one dollar ($1.00) per credit. These credits enable activities such as SEO keyword research, website optimization, title tag and meta description enhancement, link quality auditing, disavowing harmful links, internal linking optimization, blog architecture refinement, image tag optimization, social media network optimization, Google My Business and Google Maps listing enhancements, page schema markup, content creation and optimization, blog post creation and optimization, SEO-optimized infographic design, guest blog posting for link building, video production, and more. All usage of Content credits is determined by SpoutUp based on what is estimated to yield the greatest organic growth impact. Depending on your marketing objectives, Content services may commence upon your entry into our system, although in some cases, the utilization of Content credits may be postponed until after your website has been launched and approved by you. Your Marketing Success Manager and/or Content team members will strategize the optimal allocation of your resources based on your specific goals. Content credits are non-refundable but may be reallocated to other services (excluding Ad Credits) upon written request (email acceptable). If you terminate your recurring Content credit subscription, any remaining Content credits in your account will remain valid for one billing cycle and must be used or transferred to another product during the subsequent monthly billing cycle or may be forfeited. Unless otherwise specified, content will be automatically published on your website at intervals. You bear sole responsibility for reviewing and approving all website content and must promptly notify SpoutUp of any errors. Upon notification of an error, SpoutUp's sole obligation will be to remove the erroneous content as soon as reasonably practicable. All content will be deemed approved unless the Client notifies SpoutUp otherwise. The Client warrants that it will not select keywords that infringe upon any third party's trademarks or other intellectual property rights or will secure licenses to use any third party trademarks as keywords. You may access the SpoutUp platform at any time to monitor Content credit usage and outcomes. Additional Content credits can be acquired at any time to facilitate additional activities.
o. Facebook 3rd Party Audience Data: If you opt to use Oracle 3rd Party Audience Data, SpoutUp will grant access to Oracle Data Cloud Digital Audiences for your Facebook ad campaigns. The cost for these services is fifteen percent (15%) of your total gross spend (before any discounts, rebates, or offsets) on media containing Oracle Powered Facebook Custom Audiences within any Facebook Ad Sets (referred to as your "Gross Media Spend"). An amount equivalent to 15% of your estimated Gross Media Spend will be deducted from your Ad Credits on file before your Facebook ad sets go live. Any additional charges beyond this estimate will accumulate throughout the month, and you will be invoiced for these charges retrospectively along with your regular monthly marketing payment. Your use of these services in conjunction with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time). You affirm and warrant that (i) your content complies with all applicable federal, state, and local laws and regulations (including privacy laws, consumer protection laws, database regulations, data collection laws, or data transfer laws) and your privacy policies, (ii) you have provided adequate notice and obtained proper consent for the collection and use of your content under this Agreement, and (iii) you possess all necessary rights, licenses, and authority to provide your content to SpoutUp without requiring additional consent from any third party. You additionally affirm and warrant that any content provided to SpoutUp for use with Facebook Platform Services (i) exclusively comprises Personal Data-based records (and not cookie-based records or cookie-based records appended to Personal Data either (x) gathered from your customers or (y) acquired or licensed from third parties) and (ii) is readily accessible and available to you. You explicitly agree that Facebook is an intended third-party beneficiary of this Agreement, specifically regarding the provisions outlined in this Section. To utilize these services, we must grant Oracle access and permissions to your Facebook Business Manager and/or Ad Accounts where Oracle has deployed Oracle Powered Facebook Custom Audiences, enabling Oracle to access audience usage reporting through Facebook reporting APIs on an ongoing basis. You acknowledge and explicitly consent to SpoutUp sharing this information and these permissions with Oracle. EU GDPR Obligations: Your content must not pertain to individuals governed by the General Data Protection Regulation (GDPR) 2016/679.
p. Promotional Point of Sale/Payment Processing Equipment: If you received promotional payment processing equipment at no cost upon signing up for our marketing and/or payment processing services, that equipment is provided to you free of charge (shipping costs not included) for the duration of your processing agreement. If you terminate your processing product(s) or marketing service agreement before completing the Initial Term, you agree to either return the promotional equipment or pay SpoutUp the retail price of the promotional equipment within 5 business days of terminating your account.
r. Onboarding Package: All SpoutUp accounts, except Trial Accounts, include an Onboarding Package. This package comprises customization of your SpoutUp Platform account tailored to your business needs, which may involve designing a new website or integrating your existing website into the platform, along with basic training for you or your staff on platform usage. The specific cost of your Onboarding Package is detailed in your Service Agreement. If your Service Agreement does not specify the Onboarding Package cost, it will amount to $2,350.00. SpoutUp may consider waiving part or all of the Onboarding Package fee if you agree to an Initial Term lasting six (6) months or more. If you do not fulfill the Initial Term, you acknowledge the obligation to reimburse any previously waived Onboarding Package fees. Refer to Section 6.c. for further details on early termination of your Service Agreement. In earlier Service Agreements, the Onboarding Package might be referred to as the “Setup Fee.”
s. SMS SpoutUp: Utilize our SMS SpoutUp platform to manage your text message marketing and engage both new and existing clients, enhancing your sales efforts. The SMS platform enables creation of customizable, automated SMS campaigns with tracking capabilities. Your SpoutUp Base Platform subscription includes 250 messages per month to your subscribers at no additional charge. Messages exceeding this limit will incur a charge of $0.04 per message. Any additional charges will accumulate throughout the month and will be invoiced along with your regular monthly marketing payment. Unused messages do not carry over to the following month. By using SMS SpoutUp, you agree to adhere to the SpoutUp Anti-Spam Policy, available at spoutup.net/antispam, which is hereby incorporated into this Agreement. You are solely responsible for compliance with all applicable laws and regulations related to your SMS SpoutUp account, including CAN-SPAM and TCPA regulations. Additionally, you are responsible for validating and maintaining accurate records of your SMS subscriber list, ensuring all recipients have consented to receive SMS alerts from your business. You bear sole responsibility for the content of all SMS messages sent and agree to indemnify SpoutUp for any issues arising from your use of SMS SpoutUp.
t. Social Media Posts and Social Media Management Services.: If you are a SpoutUp Base DIY Client, you can utilize the SpoutUp Software to schedule posts across your social media platforms. You can connect up to 10 social media profiles within SpoutUp (additional profiles cost an extra $1 per month). You can publish up to 500 posts per month without additional charges. Any posts beyond 500 per month will incur an additional fee of $0.02 per post. If you have Social Media Management Services included in your DIFM account, SpoutUp will assign a dedicated Social Media Manager to assist in managing your business’ social media presence across your platforms. Your Social Media Manager will collaborate with you to engage with your followers, optimize your profiles, and enhance brand visibility and loyalty. Each plan includes regular postings on relevant social media platforms, branding and design services, ongoing monitoring and interaction to engage with followers, and responding to comments, messages, posts, and spam (with your authorization). Your Service Agreement will detail your specific plan (Basic, Standard, or Advanced) along with the monthly recurring cost. The Basic or Maintenance Plan includes 4 posts per month on up to two social media platforms and up to 1 hour per month of profile engagement. The Standard Plan includes 8 posts per month across a maximum of 3 social media platforms, up to 2 hours of engagement per month, and up to one video per month. The Advanced Plan includes 16 posts per month on up to 4 platforms, up to 4 hours of engagement per month, and up to 2 videos per month. Additional services can be added as follows: +1 Platform per month – $150/month, +1 Post per month – $75/month, and +1 hour of engagement per month – $75/month. Additional Ad Credits can be added on demand for an extra monthly or one-time fee. All services related to social media are subject to the terms of service of the respective platforms (Instagram, Facebook, Twitter, LinkedIn, etc.).
u. Trial Services: SpoutUp may offer a no-obligation trial to allow you to evaluate some or all of our Services at no cost. Except for terms specifically related to billing, all of these Terms will apply to trial accounts (each a “Trial Account”). Your free trial includes limited access to the SpoutUp Platform. Your Trial Account includes unrestricted use of certain services within the SpoutUp platform, such as Payments (subject to SpoutUp Payment Terms and applicable processing fees), CRM (up to 2,500 contacts), Forms, Banner Builder, and Reputation Management. Additionally, signing up for a Trial Account grants you a 14-day trial of SpoutUp website design services. The Services provided in your Trial Account may change without prior notice, and we reserve the right to modify or discontinue free trials at any time.
v. Video Production: Your Service Agreement will include a project estimate outlining the production time required based on the information provided. This estimate covers time allocated for project management, design, and video production as detailed in this agreement. Unless explicitly stated, video production does not encompass filming or media capture. Additional charges may apply if extra video production and design time is needed due to increased client requests, project scope expansion, or design modifications. Any additional hourly fees will be applied for work exceeding the estimated design and video production time listed. You will be notified of any overages before incurring additional charges beyond the initial estimate. We will proceed only upon receiving approval (written or oral) from you, which will be binding and incorporated into this agreement. Upon completion, all media will be delivered via email. If under a marketing services contract, the media may also be integrated into your website or used in an advertisement. Delivery of finalized media is contingent upon full payment under the terms of this agreement. Finished media is classified as a Creative Deliverable; however, all raw footage, audio, or media capture remains SpoutUp's work product. We do not retain or provide raw video footage after delivering the final project. All raw video footage will be deleted 30 days following delivery of the completed media. If you require delivery of raw video footage, it is available for an additional fee, and you must provide removable storage for transport. Video Production services necessitate your collaboration and input. You agree to supply materials, direction, information, approvals, authorizations, or decisions necessary for us to finalize your project. We aim to complete your video project according to your timeline. However, if there is no communication from you for over one year, we reserve the right to cancel your project, and any fees paid for Video Production services will be forfeited.
w. SpoutUp Shop App: The SpoutUp Shop App add-on is a comprehensive shopping cart extension designed for use on your SpoutUp website. You can effortlessly add new products through the SpoutUp Shop App interface. The SpoutUp App may be integrated into your SpoutUp website for an additional monthly or annual fee. With the SpoutUp App, you are responsible for maintaining the confidentiality of all associated access credentials, and you are liable for any activities conducted using your access credentials. You agree to promptly inform us of any unauthorized use of your access credentials or any security breach of your Shop App. If you use the SpoutUp App, you must also use SpoutUp Payments. You may not utilize the SpoutUp Shop App: (a) in violation of any applicable export laws and regulations, including U.S. export laws; (b) in violation of any national, state, or local laws or regulations, including those governing the import of the Service or the content you make available through the Service; or (c) in ways that infringe upon the rights of others or disrupt other users of SpoutUp's network or other networks. You acknowledge that connecting to the Internet creates opportunities for unauthorized third parties to circumvent such precautions and gain illegal access to your SpoutUp Shop App Data. Therefore, we cannot guarantee the privacy, security, integrity, or authenticity of any information transmitted over or stored in any system connected to the Internet, nor do we represent that such security measures will be sufficient. You expressly acknowledge that the indemnification provision in Section 14 applies to your use of the SpoutUp Shop App.
x. SpoutUp: SpoutUp offers a hosted website license solution that enables you to create and publish websites hosted by SpoutUp. You can customize and adjust any of our pre-designed templates to suit your business needs. You will receive one SpoutUp license with your current SpoutUp Platform subscription, otherwise this service is available for $300 annually, with annual billing required. Alongside your service, you will gain access to the SpoutUp knowledge base, featuring helpful articles and FAQs. SpoutUp websites are proprietary hosted solutions compatible exclusively with SpoutUp servers and must be hosted by SpoutUp. Your license terms for using your SpoutUp website are outlined in Section 7.d. below. SpoutUp websites cannot be transferred to another website hosting platform under any circumstances.
y. Web Hosting: Hosting for one website is included with the SpoutUp Platform for Marketing Clients upon request. Additional website hosting or for non-Marketing Clients is available for $300 annually, billed yearly. For Commerce websites, hosting for additional sites or for Non-Marketing Clients is priced at $49 per month or $588 per year. Our hosting service includes up to 100GB of monthly bandwidth. Additional bandwidth can be obtained for an extra fee; please consult your SpoutUp representative for current rates. Storage of up to 3GB is included with hosting; additional storage incurs a fee of $5 per additional 3GB per month. These fees are billed monthly based on usage. SpoutUp and UXi websites are proprietary hosted solutions compatible solely with SpoutUp servers and must be hosted by SpoutUp. Migration of SpoutUp or UXi designs to another hosting platform is prohibited. If you cancel your SpoutUp Base Platform, UXi or SpoutUp website hosting can be retained for $300 per year. Hosting services for websites will continue under these SpoutUp Terms of Service after cancellation of marketing services. Design files for BigCommerce, Shopify, and certain other third-party e-commerce sites must be hosted on their respective servers. Upon cancellation of marketing services, BigCommerce and Shopify sites will remain hosted on their platforms. For issues with third-party website hosting, please contact those providers directly.
2 Compliance with Laws/Prohibited Content: Client agrees not to use or allow the use of the Services in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, Client may not engage in any illegal activities using SpoutUp's Services, including but not limited to storing or transmitting information, data, files, or links to content that violate any local, state, national, or international law. This prohibition extends to activities such as using pirated software, distributing copyrighted materials or links to such materials, spreading computer worms or viruses, using false identities, or attempting unauthorized access to any network. All forms of pornography and sex-related merchandise are strictly prohibited on all SpoutUp servers. This prohibition includes any sites that imply or link to sexual content. Additionally, spamming sites and sites that sell or promote bulk email software, services, or email addresses are not allowed. SpoutUp reserves the right to terminate this agreement if, in its sole discretion, Client violates this policy.
3 Client Responsibilities: In addition to fulfilling all necessary payments, Client agrees to (a) collaborate with SpoutUp on all matters related to the Services and provide access to Client’s advertising accounts, including Google AdWords and Analytics accounts, as required; (b) promptly respond to questionnaires and any reasonable requests to provide direction, information, approvals, authorizations, or decisions necessary for SpoutUp to perform Services as per the terms of this Agreement; and (c) furnish any customer materials or information requested by SpoutUp to facilitate the Services promptly, ensuring completeness and accuracy to the best of Client's knowledge. SpoutUp shall not be held responsible or liable for any delay or failure in performance caused in whole or in part by Client's delay or failure to fulfill any of its obligations under this Agreement.
4 Payment: Upon execution of your Service Agreement, Service Order, or Online Order Form, you are responsible for payment in full of all associated Fees. All Fees are payable in US dollars. Unless otherwise specified, you will pay all Fees under this Agreement monthly, in advance. Fees for one-time services are due in full on the Effective Date or as otherwise stated in your Service Agreement. For recurring Fees, the initial payment will be processed on the Effective Date, with subsequent Fees billed as outlined in your Service Agreement. For monthly recurring Services, unless otherwise stated in the Service Agreement, billing will occur on the same numerical day of each month as the Effective Date. For instance, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so forth. The final billing date each month is the 25th. If your Effective Date falls after the 25th, the initial payment will be processed on the Effective Date, with subsequent payments billed on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and subsequent payments will be billed annually on the anniversary of the Effective Date unless canceled as specified in Section 5 below. You acknowledge your obligation to pay the full amount due for Services monthly throughout the Initial Term and Renewal Terms, not less than the monthly recurring marketing total specified in your Service Agreement. You must consent to all applicable payment authorization forms permitting recurring billing in accordance with your agreement. SpoutUp reserves the right to charge your credit card or debit your account via ACH for Fees per these Terms of Service and the Service Agreement. You affirm the accuracy of any ACH information provided to SpoutUp and recognize SpoutUp's entitlement to debit your account for any ACH fees incurred due to your errors, such as incorrect information, invalid account numbers, or insufficient funds. SpoutUp employs a credit card updating service that automatically updates credit card numbers for expired or replaced cards. You acknowledge SpoutUp's right to charge any credit card updated through this service in accordance with these Terms of Service and the Service Agreement. YOU ACKNOWLEDGE AND AGREE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT FAILURE TO TIMELY PAYMENT MAY RESULT IN A BREACH OF YOUR CONTRACTUAL OBLIGATIONS, LEADING TO PAUSE OR TERMINATION OF SERVICES.
5 Term/Termination.
a. Term: The Agreement shall commence on the Effective Date and shall continue until terminated as specified below. For recurring accounts, the Service Agreement establishes the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for this duration. Unless otherwise specified in the Service Agreement, all Site Only plans or website hosting plans have a twelve (12) month Initial Term, while all other plans have a six (6) month Initial Term. Your Initial Term may be extended by any additional Service Order or Online Order Form. In the event of a conflict, the Initial Term stated in the most recent agreement shall prevail. Only months in which full payment is received will count as a marketing month during the Initial Term. Client acknowledges that their digital marketing strategy is structured based on the Initial Term defined in the Client’s Service Agreement. Following the Initial Term, the Agreement will automatically renew for successive one-month periods (each, a “Renewal Term”) or as otherwise specified in the Service Agreement (together, the Initial Term and any Renewal Terms are collectively referred to as the “Term”).
b. Termination: Client may terminate the services by giving at least 30 days’ written notice of termination via mail or email addressed to your Marketing Success Manager or Project Manager, as applicable. If you have not completed the Initial Term, termination will be effective upon completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term and will then cease.
c. Early Termination: You acknowledge that SpoutUp requires an Onboarding Package for all SpoutUp Platform License Accounts. SpoutUp may waive some or all of this Onboarding Package for all accounts that sign up for an Initial Term of six (6) months or more. If you wish to terminate the Services without completing the Initial Term, you may do so only by providing both written notification of termination and paying any previously waived Onboarding Package. The amount of your Onboarding Package is defined in your Service Agreement. If your Service Agreement does not define the Onboarding Package, it shall be equal to $2,350.00. The Onboarding Package payment is in addition to your cumulative monthly payments and cannot be paid using credits on file or any prior payment. The Onboarding Package must be provided within five (5) business days from our receipt of your written notice of early termination. No early termination of a Service Agreement will take effect until the previously waived Onboarding Package has been paid, and you will continue to be billed monthly until we receive both proper written notice of termination and the Onboarding Package, as applicable. Upon execution of this agreement, SpoutUp will be investing considerable effort into your business and online marketing activities. This investment is made with the understanding that you are committed to paying for the Services through the Initial Term. Client acknowledges the upfront investment, setup costs, and opportunity costs that SpoutUp incurs in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate SpoutUp for early termination of the Services. Clients who signed a Service Agreement prior to May 2021 do not have an Onboarding Package, but instead may terminate prior to the end of the Initial Term only by paying a Setup Fee or an Early Termination Fee. The Setup Fee or Early Termination Fee, if applicable, will be defined in your Service Agreement. You acknowledge the upfront investment, setup costs, and opportunity costs that SpoutUp bears in connection with your Service Agreement and you acknowledge that this Early Termination Fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate SpoutUp for early termination of the Services.
b. Termination: Client may terminate the services by giving at least 30 days’ written notice of termination via mail or email addressed to your Marketing Success Manager or Project Manager, as applicable. If you have not completed the Initial Term, termination will be effective upon completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term and will then cease.
e. SpoutUp’s Right to Terminate: We reserve the right to terminate this Agreement at any time and for any reason, at our sole discretion, by providing written notice of termination to you. Termination will be effective at the end of the current billing period. Written notice may be provided to you via email. If we terminate this Agreement under this Section 5.e, we will refund you for any unused credits and funds within 30 business days from the effective termination date.
f. Pause or Downgrade of Service: During the Initial Term, you may request a pause or a downgrade in your Services; however, it will be at SpoutUp’s sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade during the Initial Term will be effective without signed written confirmation from both SpoutUp and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. After the Initial Term, a downgrade that fully eliminates the recurring portion of certain services (e.g., Content Credits, Ad Credits, Social Media Management, etc.) shall be considered a cancellation of such services and will terminate all SpoutUp obligations related to that service at the end of the then current billing cycle. Additionally, the Parties agree that any downgrade that eliminates the SpoutUp Base Platform Fee (e.g., a downgrade to hosting services only) will terminate all SpoutUp obligations related to those removed services. The Parties agree that the preceding two sentences shall not apply to temporary downgrades accompanied by a signed agreement. Client may upgrade or reinstate services at any time with a written or oral request.
g. No Refunds and Unused Credits: Unless we cancel the agreement pursuant to Section 5.e., no refunds will be provided for any amounts already paid to SpoutUp. Upon cancellation of this agreement by you for any reason, any and all unused funds, credits, or creative hours will be forfeited. If you downgrade to hosting-only services or any other recurring services that do not include the SpoutUp Platform License Fee, any and all unused funds, credits, or creative hours remaining in your account at the time of the downgrade will be forfeited. The preceding sentence does not apply to temporary downgrades with a signed agreement.
h. Collection of Amounts Owed: You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by SpoutUp in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
i. Charge Disputes: If you dispute any payment with your credit card company or bank, and such dispute is resolved in SpoutUp’s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate SpoutUp for the additional costs incurred in defending your payment dispute.
6 Intellectual Property.
a. Your License Grant to SpoutUp: During the Term, you hereby grant to SpoutUp a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing SpoutUp to perform the Services. This license will terminate upon termination of the Service Agreement.
b. Ownership of Creative Deliverables and Content: Upon receipt by SpoutUp of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. SpoutUp will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and SpoutUp reserves the right to use the Creative Deliverables for advertising, publication, promotion, display, or other purposes.
c. Ownership of non-custom Website Design: Notwithstanding Section 7.b. and Section 7d, SpoutUp retains all copyrights in all non-custom website designs delivered under this Agreement in accordance with Section 1.i. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by SpoutUp for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty-free, revocable, non-transferable license to use, copy, and publish any website design and related materials delivered to Client under this Agreement. SpoutUp reserves the right to revoke this license only if either (1) Client does not fulfill the Initial Term and/or pay the waived Setup Fee or (2) Client initiates a payment dispute for any past payment.
SpoutUp License: SpoutUp grants Client, during the Term for which Client has paid the applicable Fees, a non-exclusive, non-transferable, and revocable license, subject to this Agreement and any qualifications contained herein, to access and use the Service for displaying a website design. This license is limited, non-sublicensable, and intended solely for the purpose of accessing and using the Service in connection with the creation of Client websites hosted by SpoutUp. This license to access SpoutUp will terminate upon cancellation or non-payment of any applicable fees.
1 Work Product Ownership: Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns, or other information (collectively, “Work Product”) developed in whole or in part by SpoutUp during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of SpoutUp.
1 Trademarks: All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the SpoutUp trademarks without the express written consent of SpoutUp is prohibited.
7 Authorization and Limited License to Access SpoutUp Software Platforms: Upon execution of a marketing Service Agreement, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive limited license to access the SpoutUp Software Platforms. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the SpoutUp Platforms, including, without limitation, SpoutUp, Top Rated Local, the platforms, software, data, applications, methods of doing business, or any other content provided through SpoutUp whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the SpoutUp Platforms and Services, are and will remain with SpoutUp. You may only access the SpoutUp Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the SpoutUp Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of SpoutUp Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the SpoutUp Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or SpoutUp systems, in whole or in part; (d) bypass or breach any security device or protection used by the SpoutUp Platforms or Services, or access or use the SpoutUp Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or SpoutUp’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, SpoutUp’s systems or SpoutUp’s provision of services to any 3rd Party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other SpoutUp materials, including any copy thereof; (h) access or use the SpoutUp Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of SpoutUp or any 3rd Party or in a way that violates any applicable law; (i) access or use the SpoutUp Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to SpoutUp’s detriment or commercial disadvantage. In addition to the other remedies SpoutUp may have, SpoutUp may terminate the foregoing license and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this license.
8 Representations. By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to SpoutUp for use in conjunction with the services.
9 Agency: If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.
10 DISCLAIMER OF WARRANTIES: SPOUTUP PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, SPOUTUP’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPOUTUP DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, SPOUTUP MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
11 LIMITATIONS OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPOUTUP SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO SPOUTUP IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, SPOUTUP IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S SPOUTUP ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES.
12 Dispute Resolution.
a. Good Faith and Cooperation: Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes, or controversies, and allow the other Party no less than 30 days to cure the issue or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships of the other.
b. Agreement to Arbitrate: If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Fort Collins, North Carolina by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
c. Exceptions to Agreement to Arbitrate: SpoutUp may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties' agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Cumberland County, North Carolina, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
e. Voluntary and Knowing Waiver: BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
13 Indemnification: You agree to indemnify, defend, and hold SpoutUp harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any claims it may have against SpoutUp arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless SpoutUp against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
14 Non-Solicitation: You agree not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of SpoutUp or its subsidiaries, or induce the termination of employment of any SpoutUp employee during the Term and for a period of three (3) years following the termination of this Agreement.
15 Miscellaneous.
a. CHOICE OF LAW: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the State of North Carolina without giving effect to conflict of laws principles.
b. ENTIRE AGREEMENT: THESE TERMS OF SERVICE TOGETHER WITH THE APPLICABLE SERVICE AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. ALL PRIOR AGREEMENTS, DISCUSSIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS ARE MERGED HEREIN. SPOUTUP LIMITS ACCEPTANCE TO THESE AGREEMENTS, AND OBJECTS TO ANY OTHER ADDITIONAL OR DIFFERENT TERMS IN THE CLIENT’S ACCEPTANCE.
c. Amendment/No Waiver: We reserve the right to update and revise any portion or all of these Terms of Service. Should we make updates or changes, the revised Terms of Service will be published at http://spoutup.com/terms. We will notify you through email and/or notifications on the SpoutUp Platforms. If you do not agree with a modification to the Terms of Service, you must inform us in writing within thirty (30) days of receiving notice of the modification. Upon receipt of such notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service as they existed prior to the modification, for the remainder of your Initial Term or your current Renewal Term. Upon renewal, the Terms of Service posted on our website will prevail. Any significant changes to your Service Agreement must be documented in writing and mutually executed by both parties. The failure by either party to enforce any provision shall not constitute a waiver or impair that party’s right to enforce such provision at any subsequent time.
d. Electronic Signatures: Both parties acknowledge that electronic signatures carry the same legal weight as handwritten signatures. An electronic signature refers to any electronic sound, symbol, checkbox, or process attached to or logically associated with a document, and executed and adopted by a party with the intent to sign such document.
e. Severability: In the event that any provision of this Agreement or its application is deemed invalid, illegal, or unenforceable by a court of competent jurisdiction, (a) that provision will be interpreted to reflect the original intentions of the Parties to the fullest extent permitted by law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will continue in full force and effect.
f. Assignment. No Party shall assign any portion of this Agreement without the prior written consent of the other Party; however, either Party may freely assign this Agreement in connection with the sale of substantially all of its assets or a change of control involving at least 50% of the voting equity interests of the business, effective upon providing written notice to the other Party.
g. No Third-Party Beneficiaries: This Agreement does not grant any rights or remedies to any individual or entity other than the parties hereto and their respective successors and permitted assigns.
h. Third-Party Sites and Products: We acknowledge that third-party sites and products are beyond our control and are offered to you solely for convenience. The inclusion of any third-party website or product does not imply our endorsement, support, or warranty of that third-party site or product. We do not guarantee the performance of any third-party product or service. When using a SpoutUp website, specific Commerce plugins may be necessary for certain website functionalities. You will need to create your own Commerce account to utilize these plugins on your website, and additional fees may apply to Commerce for certain plugins.
i. HIPAA Compliance: If Client qualifies as a "covered entity" or "business associate" under the Health Insurance Portability and Accountability Act of 1996 (as amended or replaced, "HIPAA"), or is otherwise subject to any HIPAA-related or similar legal obligations, Client bears sole responsibility for ensuring full compliance. Client must safeguard the privacy of individuals and their information covered by HIPAA or any related laws or regulations. SpoutUp does not make any representations or warranties regarding HIPAA compliance.
j. EU/EEA Data Processing: If we process customer data subject to the European Union General Data Protection Regulation ("GDPR") on your behalf, such processing will be governed by the terms of the SpoutUp Data Processing Agreement ("DPA") available at https://www.spoutup.net/data-processing-agreement/. Please contact your SpoutUp representative to obtain a signed copy of the DPA. The DPA is hereby incorporated by reference for all accounts where we process GDPR data. You acknowledge that SpoutUp acts as the data processor of this data, and you, as the client, are the data controller under the GDPR. It is your responsibility under the GDPR to obtain and maintain documentation of the legitimate purpose and consent necessary to process any GDPR data shared with SpoutUp under this Agreement.
k. Google Third Party Disclaimer: SpoutUp participates as a Google AdWords reseller under Google's Third Party Partner program. For detailed information about this program, please refer to Google’s "Working with a Third-Party Disclaimer" available at http://www.google.com/adwords/thirdpartypartners/.
l. Bing Ads Agreement: SpoutUp is an authorized Bing Ads Elite SMB Partner and resells Bing Ads. By utilizing our services for marketing on Bing, you agree to adhere to the terms outlined in the Bing Ads Agreement, accessible at: https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement.
m. Facebook Advertising Guidelines: When utilizing our services for Facebook advertising, you are subject to distinct terms and conditions, including Facebook’s Advertising Guidelines (currently available at https://www.facebook.com/policies/ads, and subject to updates by Facebook).
n. Relationship Between Parties: The parties to this agreement are independent entities, and no agency, partnership, joint venture, or employer-employee relationship is intended or established.
o. Referrals: SpoutUp may offer incentives to third parties who introduce potential clients to SpoutUp. Periodically, SpoutUp may receive referral fees, incentives, revenue shares, or rebates (collectively referred to as "Incentives") from third-party advertisement providers, payment processors, or other entities based on meeting revenue or advertising spend criteria or referring potential customers to these third parties. You acknowledge that you are not entitled to any Incentive or portion thereof received by SpoutUp.
p. Survival Clause: The provisions concerning Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitation of Liability, Dispute Resolution, and Indemnification shall continue to be effective following the termination, cancellation, or expiration of this agreement. However, Client shall remain responsible for any outstanding amounts owed to SpoutUp as of the termination date.
q. Subcontracting: SpoutUp reserves the right to subcontract to any third party, without your consent, for the fulfillment of all or any of SpoutUp’s responsibilities under this Agreement. It is understood that SpoutUp retains primary liability for the execution of these obligations.
r. Taxes: Certain products or services may be subject to sales tax and/or VAT tax in specific states and countries. Sales and VAT taxes are automatically calculated based on the Client’s billing address and the products or services listed on the invoice. The Client is responsible for any sales, use, or VAT taxes that are not collected by SpoutUp.
s. Call Recording Notice: You acknowledge that SpoutUp may record client phone calls for purposes of quality assurance.
t. CCPA Compliance: If SpoutUp processes data on your behalf that is subject to the California Consumer Privacy Act (CCPA), such data will be handled in accordance with our CCPA Compliance terms available at clauses. If you are subject to the CCPA, you must notify us of your obligations so we can provide you with the necessary CCPA Compliance terms for your review and signature.
u. Trade Name Disclosure: SpoutUp is a federally registered trademark and trade name of MBC HOLDING GROUP, Inc., a limited liability company based in Wyoming.
v. Communication Preferences: You agree to receive electronic and telephone communications from us regarding your account or the Services. These communications may include telephone calls to any number you provide, SMS text messages to a phone number you provide, emails to any email address you provide, and messages posted to you on the SpoutUp Platforms or within the “My Account” section. By consenting to electronic communications, you acknowledge that such communications satisfy any legal requirements for written notices, agreements, disclosures, or other communications. It is advisable to retain copies of electronic communications by printing or saving them. Additionally, you consent to receive other communications from us, such as newsletters featuring new features and content, special offers, promotional announcements, and customer surveys via email or other means. Please refer to our Privacy Policy for more information on our marketing communications practices.
w. Section Headings: The headings used in this agreement are for convenience only and do not limit, define, construe, or describe the scope or extent of any section.
x. Force Majeure: Neither party shall be held liable for any failure or delay (except for payment obligations) resulting from government actions, natural disasters, power failures, or any other conditions that affect production or delivery and are beyond the reasonable control of that party.
y. Notices: All required notices from one party under this agreement shall be sent in writing to the other party at the mailing address or email address provided to the other party from time to time in writing.
Contact Information
Address: SpoutUp, 1309 Coffen Avenue STE 1200 Sheridan Wyoming 82801. Email: contact@spoutupgroup.com