2.1 Restrictions.
Customer will only use the Service as expressly permitted herein and in the applicable Order Form and agrees that it will not (and will not allow any of its employees or any third party to), directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service; (ii) modify, translate, or create derivative works based on the Service (except to the extent expressly permitted by Sparrow in writing or authorized within the Service); (iii) use the Service for timesharing or service bureau purposes or otherwise for the benefit of any third party; (iv) use or access the Service to develop a product or service that is competitive with the Service or engage in competitive analysis or benchmarking; (v) remove any proprietary notices or labels; or (vi) modify, adapt, hack, or attempt to probe, scan or test the vulnerability of, the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.

2.2 Compliance.
Customer is responsible for use of the Service by its Authorized Users. Customer represents and warrants that Customer and its Authorized Users will use the Service only in compliance with Sparrow’s privacy policy and standard published policies and codes of conduct then in effect, if any, and all applicable laws and regulations. Customer will obtain from Authorized Users any consents necessary to allow Authorized Users to use the Service and for Sparrow to perform the Service, including any consents to provide or enable Sparrow to collect Customer Data (defined below), and to contact Customer’s employees who are taking a leave of absence, to allow Customer’s administrative Authorized Users to access, disclose, restrict or remove Customer Data in or from the Service accounts and to monitor or restrict access to the Service accounts. Although Sparrow has no obligation to monitor Customer’s and its Authorized Users’ use of the Service, Sparrow may do so and may suspend Customer’s and any Authorized Users’ access to or use of the Service in its reasonable discretion if it possesses a good faith belief that any such use may be in violation of this Agreement or otherwise places Sparrow at risk of liability. “Customer Data” means data submitted to the Service by Customer or Authorized Users or collected by Sparrow in the provision of the Service, including all documentation, data, and other non-public information relating to Authorized Users, but excluding any anonymized information, metrics, analytics, and data that Sparrow collects in connection with Customer’s (including its Authorized Users’) use of, or interaction with, the Services (“Operational Metrics”).

2.3 Customer Administration of the Service.
Customer will be responsible for maintaining the security of Customer’s and Authorized Users’ account, passwords (including but not limited to administrative and user passwords) and files, and will prevent unauthorized use of or access to the Service. Customer will promptly notify Sparrow of any unauthorized use of or access to the Service. Customer will cooperate with Sparrow in its provision of the Service, including providing Sparrow with timely access to Customer’s and its Authorized Users’ data and information, and Customer will be solely responsible for the accuracy and completeness of all data and information provided to Sparrow for the performance of the Service.

2.4 Advice and Recommendations.
2.4 The Service may include general advice and recommendations, documents and policy samples to Customer or Authorized Users. Customer acknowledges and agrees, however, that Sparrow is not providing legal advice to Customer or any Authorized Users and that Customer is solely responsible for obtaining all necessary advice to ensure that Customer is in compliance with all of its legal obligations in connection with its employee leaves of absence. In addition, Sparrow will not make any decisions on Customer’s behalf, and Sparrow will be entitled to rely on all of Customer’s decisions and approvals.

3.1 Confidentiality
“Confidential Information” means any technical or business information disclosed by one party to the other that: (i) if disclosed in writing is marked as “confidential” or “proprietary” when disclosed; (ii) if disclosed orally, is identified as “confidential” or “proprietary” when disclosed and summarized in writing within thirty (30) days: or (iii) a reasonable person would consider confidential or proprietary under the circumstances. Confidential Information of Sparrow includes, without limitation, all software, documentation and other non-public information relating to the Service or the features, functionality and performance thereof. Each party agrees: (i) to take reasonable measures to protect the other’s Confidential Information, and (ii) not to use (except as permitted herein) or disclose to any third person (other than (a) employees or contractors with a need to know who are bound by confidentiality obligations consistent with this Agreement and (b) as required to provide employee-related information and paperwork to permitted third parties solely in connection with our performance of the Service (e.g., employee’s doctor, California EDD, Customer short-term disability provider)) any such Confidential Information of the other party. Confidential Information does not include information that the receiving party can document (a) is or becomes generally available to the public through no fault of the receiving party, or (b) was in its possession or known without restriction prior to receipt from the disclosing party, or © was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party, or (e) is required to be disclosed by law.

3.2 Data Security.
Sparrow will maintain industry standard administrative, physical and technical safeguards reasonably designed to protect the security of Customer Data. These safeguards include measures designed to prevent unauthorized access, use, modification or disclosure of Customer Data. Sparrow will not materially diminish the protections provided in this Section during the term of this Agreement. Sparrow’s use of Customer Data is governed by Sparrow’s Privacy Policy located at: https://trysparrow.com/privacy/.

3.3 Proprietary Rights.
Sparrow or its licensors owns and retains all right, title and interest in and to (a) the Service and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Service, services or support, © the Sparrow Content (as defined below) (excluding any Customer Data contained therein), and (d) all intellectual property rights related to any of the foregoing. If Customer provides any suggestions, comments or other feedback to Sparrow with respect to the Service or any of Sparrow’s other products or services, Sparrow will have the full, free and unencumbered right to use and otherwise fully exploit the same in connection with the Service and its other products and services. “Sparrow Content” is information created or licensed by Sparrow provided to Customer in the course of Customer’s use of the Service under the terms of this Agreement, as may be more fully described in Sparrow’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via login to the applicable Service (the “Documentation”).

3.4 Rights in Customer Data.
As between Sparrow and Customer, Customer owns all rights in and to the Customer Data. Customer grants Sparrow a right to use, collect and process Customer Data as necessary to perform the Services

3.5 Operational Metrics.
Sparrow monitors and collects Operational Metrics for its own business purposes, such as improving, testing, and maintaining the Service and developing additional products and services. Customer grants to Sparrow an irrevocable, non-exclusive, transferable, worldwide, and royalty-free right to collect, analyze and use Operational Metrics relating to its delivery of the Service that may be in part derived from, or related to, the Customer Data, including the generation of reports for internal, external, and public use, and to use Operational Metrics for Sparrow’s internal business purposes.

3.6
Customer agrees that Sparrow may include Customer’s name in Sparrow’s marketing materials and on Sparrow’s website; however, Sparrow will not use Customer’s name in any other publicity (e.g. case studies) without Customer’s prior written consent (which may be by email).

4.1 Fees.
Customer will pay Sparrow all applicable fees for the Service, as set forth in the Order Form in accordance with the payment terms therein. Fees are non-cancelable and non-refundable. Sparrow may revise Service fees at the end of the initial term or then current renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email). If Customer believes that Sparrow has billed Customer incorrectly, Customer must contact Sparrow no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sparrow’s customer support department.

4.2 Taxes.
Customer is responsible for all taxes associated with the Service other than U.S. taxes based on Sparrow’s net income.

5.1 Term.
Subject to earlier termination as provided below, this Agreement is for the initial term as specified in the Order Form, and will automatically renew for additional periods of the same duration as the initial term unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 Termination.
In addition to any other remedies it may have, either party may also terminate this Agreement (including all Order Forms) upon thirty (30) days’ written notice (or five (5) days’ in the case of nonpayment), if the other party is in material breach of this Agreement and such breach is not cured during the notice period. Upon termination, Customer’s right to use the Service will immediately terminate and all outstanding fees due for the Service for the entire Term (regardless of any early termination) will immediately become due and payable. Except as necessary to comply with its legal obligations, each party will immediately cease use of and destroy all the other party’s Confidential Information. Any Confidential Information of the other party that a party needs to keep for so long as necessary to comply with this Agreement will remain subject to the terms of Section 3 of this Agreement The following Sections will survive expiration or termination of this Agreement: 2, 3.1, 3.3, 3.4, 3.5, 4, 5.2, 6, 7.2, and 8-11.

6.1 By Sparrow
Sparrow will indemnify, defend and hold Customer harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer resulting from infringement by the Service (excluding any claim based upon the Customer Data) of any U.S. patent, trademark or copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to the Service or portions thereof (i) not supplied by Sparrow, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Sparrow, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s or its Authorized Users’ use of the Service is not strictly in accordance with this Agreement.

6.2 By Customer.
Customer will indemnify defend, and hold Sparrow and its Affiliates harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party related to (i) Customer’s or Authorized Users’ use of the Service (except to the extent covered by Sparrow’s indemnity obligations above), or (ii) Customer Data (including any claim that Customer did not have all necessary consents or authorizations with respect thereto for Sparrow’s use as authorized hereunder).

6.3 General.
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have sole control over the defense, except that: (i) any settlement requiring the party seeking indemnity to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense.

7.1 Warranty.
During the Term, Sparrow warrants to Customer that the Service will operate substantially in conformance with the functions and features described in the applicable Documentation when used in accordance with such Documentation and this Agreement. As Customer’s sole and exclusive remedy for any warranty breach, Sparrow will use commercially reasonable efforts to correct any non-conformances which have been brought to the Sparrow support team’s attention. The above remedy is available only if Sparrow is promptly notified in writing of the non-conformance, and in sufficient detail for the non-conformance to be reproducible by Sparrow.

7.2 Disclaimer.
SPARROW DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND SPARROW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT WITH RESPECT TO THIRD PARTIES PROVIDING SERVICES ON SPARROW’S BEHALF (E.G., CLOUD HOSTING SERVICE PROVIDER), SPARROW IS NOT LIABLE FOR ANY ACT OR OMISSION OF THIRD PARTIES THAT RECEIVE ACCESS TO EMPLOYEE-RELATED INFORMATION OR PAPERWORK IN CONNECTION WITH THE SERVICE (E.G., EMPLOYEE’S DOCTOR, CALIFORNIA EDD, SHORT-TERM DISABILITY PROVIDER, CALIFORNIA EDD).

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR SPARROW OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY OR ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, WILL BE LIABLE UNDER THIS AGREEMENT WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (i) FOR LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFIT (IN EACH CASE WHETHER DIRECT OR INDIRECT) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, IN EACH CASE, WHETHER OR NOT A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR SPARROW OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO SPARROW HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, SPARROW’S MAXIMUM AGGREGATE LIABILITY FOR ITS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 WILL NOT EXCEED 4 TIMES THE FEES PAID OR PAYABLE TO SPARROW HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

Customer may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer will not permit access or use of the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will comply with all applicable laws regarding the transmission of technical data exported from the United States. As defined in FAR section 2.101, the Service and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Customer and Sparrow agree to resolve any claims relating to this Agreement or the Service through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, California, or any other location the parties agree to in writing. The arbitrator will have the right to order limited discovery. The arbitration fees will be borne by the losing party, except as otherwise awarded by the arbitrator in accordance with the Commercial Arbitration Rules. Either party may bring a lawsuit in the federal or states courts of San Francisco County, California solely to seek temporary or preliminary injunctive relief to stop unauthorized use or abuse of the Service or infringement of intellectual property rights. Each party hereby consents and irrevocably submits to the exclusive jurisdiction and exclusive venue of such courts.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of the Agreement will remain in full effect. This Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of such party’s assets or business. Sparrow may use subcontractors in its performance of this Agreement; provided that Sparrow will remain responsible for any such subcontractor’s performance hereunder. This Agreement and any Order Forms constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede and replace all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Sparrow may revise this Agreement from time to time and the most current version will always be posted on the Sparrow website. If a revision, in Sparrow’s sole discretion, is material, Sparrow will notify Customer by email. Customer is responsible for checking the Sparrow website regularly. By continuing to access or use the Service after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may stop using the Service. In the event of a conflict between the terms of this Agreement and the Order Form, the terms of the Order Form will control. Any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sparrow in any respect whatsoever. There are no third-party beneficiaries to this Agreement. Without limiting this section, Customer’s Authorized Users are not third-party beneficiaries to Customer’s rights under this Agreement. Except for payment obligations, neither Sparrow nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). All notices under this Agreement must be sent via email, next day delivery via recognized overnight delivery service, or certified or registered mail, return receipt requested, and are deemed given when received. Notices to Customer may be sent to the applicable account email address and are deemed given when sent. Notices to Sparrow must be sent to Sparrow Legal at legal@trysparrow.com with a copy to Sparrow’s address listed above, attn: Legal Department. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.