SPRCHRGR Terms and Conditions of Service
last updated December 20, 2024
prior version here
These Terms of Service (these “Terms”) are incorporated by reference into each order for Subscription Services or Consulting Services submitted by a customer (the “Customer”, “you” or “your”) to SPRCHRGR (“SPRCHRGR,” “we,” “us,” or “our”) whether such order is set forth in a purchase order or statement of work that is countersigned by SPRCHRGR or an online order processed through any of SPRCHRGR’s websites (https://sprchrgr.com and https://sprchrgr.app) or by email or similar digital communication platform (as applicable, an “Order”).
Additional Terms posted at https://sprchrgr.com/subscription-service-terms apply and are incorporated herein for Customers who order Subscription Services from us.
SPRCHRGR may modify these Terms from time to time by posting revised terms on its website and any such modification will be effective and binding on Customer thirty (30) days after such modification is posted at https://sprchrgr.com/terms-of-service.
1. Definitions. The following capitalized terms are used as defined:
1.1. “Agreement” means, collectively, these Terms, each Order and any other documents incorporated into such Order by reference.
1.2. “Available” is defined as any time that the System is capable of performing substantially all of the major features and functions indicated in the System’s documentation, as measured and tracked by SPRCHRGR’s availability reporting software.
1.3. “Confidential Information” means all information, material and data of the Discloser (including information, material and data that constitutes a trade secret under applicable law) and: (a) is labeled or designated in writing as confidential or proprietary, (b) the Recipient is advised is proprietary or confidential, or (c) in view of the nature of such information and/or the circumstances of its disclosure, the Recipient knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, Customer Data, the terms and conditions of this Agreement and all non-public information relating to the Discloser’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.
1.4. “Customer Data” means information, including Personal Information, concerning Customer’s business that is input to the System by an Authorized User or by SPRCHRGR as part of the Services. As between SPRCHRGR and Customer, Customer will be the sole and exclusive owner of Customer Data. The following are not Customer Data: SUPRCHRGR Software, SUPRCHRGR Confidential Information, the System, and any material in which SUPRCHRGR holds Intellectual Property Rights.
1.5. “Custom Development” means Software developed by SPRCHRGR specifically for Customer in connection with the Services reflected on an Order.
1.6. “Excluded Causes” means any time at which the System is not Available as a result of any of the following: (a) any malicious or hostile attack on Customer’s network resources or SPRCHRGR’s network resources by any third party, (B) any Force Majeure Event, (c) any error of an Authorized User or other party who was given access to the System by Customer, (d) Customer loses Internet connectivity, (e) any error in Software not provided by SPRCHRGR.
1.7. “Intellectual Property Rights” means all copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights as applicable under the laws of any applicable jurisdiction.
1.8. “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual. Personal Information includes any information that constitutes “Personally Identifiable Information,” “Personal Data,” or equivalent terms as defined by applicable law.
1.9. “Services” means the services that SPRCHRGR is obligated to provide as indicated in an applicable Order.
1.10. “Software” means SPRCHRGR’s proprietary software that is owned by SPRCHRGR, including any updates, customizations or enhancements thereto including any Custom Development, provided under this Agreement and accompanying documentation and all ideas, concepts, methods and techniques embodied therein.
1.11. “Support” is used as defined in the Order.
1.12. “System” is used as defined in the Order.
1.13. “Third-Party Site(s)” means any websites, platforms, applications, or other software or materials owned and operated by any third party or third parties.
2. Customer Data.
2.1. Responsibility for Customer Data. Customer will be solely responsible for the accuracy, quality, and legality of all Customer Data and for the creation, publication, maintenance and compliance with any privacy policies or legal requirements pertaining to the collection, storage, maintenance, use, disclosure and processing of all Customer Data. In the event that Customer is or becomes subject to any privacy law that requires that the parties enter into additional contractual terms governing the processing of Personal Information (including, without limitation, the California Consumer Privacy Act (“CCPA”) or the European Union General Data Protection Regulation (“GDPR”)), Customer shall be solely responsible for: (i) notifying SPRCHRGR of such requirement; and (ii) ensuring that the parties enter into such additional contractual terms before disclosing any Personal Information to SPRCHRGR. Customer shall not provide or make available to SPRCHRGR any Personal Information: (x) in violation of these Terms; (y) that constitutes Protected Health Information (“PHI”) under the Health Insurance Portability and Accountability Act (“HIPAA”); and/or (z) that is otherwise inappropriate for the nature of the Services, and shall indemnify SPRCHRGR from all claims and losses in connection therewith.
2.2. Anonymized Data. SPRCHRGR may create and use for its own business purposes anonymized data that is derived from Customer Data but that contains no personally identifiable information of any person and does not identify or reveal proprietary or personal information of Customer or Customer’s own customers, employees, vendors, or business partners. As between SPRCHRGR and Customer, SPRCHRGR will be the sole and exclusive owner of all such anonymized data.
2.3. Breach Notification. If SPRCHRGR believes that the security or integrity of any Customer Data stored in the System has been compromised, SPRCHRGR will promptly notify Customer and investigate the cause or source of such loss of security or integrity. SPRCHRGR will promptly remedy or repair the System as needed and will promptly notify Customer of the outcome of its investigation into the cause or source of such loss or security or integrity. Customer will be solely responsible for notifying any affected persons as required by applicable law or applicable privacy policies.
2.4. Customer Permission and Release. Customer hereby requests that SPRCHRGR provide access to Customer Data to any Third-Party Site indicated in an applicable Order. Notwithstanding any other provision of this Agreement, Customer hereby releases SPRCHRGR, fully and completely, for any losses, costs, damages or other liability arising out of or relating to any agreement between Customer and the Third Party or any uses or misuse of Customer Data by the Third Party.
2.5. Return of Customer Data. Effective as of the termination or expiration of this Agreement, SUPRCHRGR has no responsibility whatsoever for Customer Data stored in any Third-Party Site. If Customer requests assistance to access, retrieve, or copy any Customer Data stored in the System, SUPRCHRGR will provide assistance at SUPRCHRGR’s then-current applicable billing rates (“Transition Assistance”). SUPRCHRGR may delete Customer Data from the System if Customer has not requested Transition Assistance within thirty (30) days of the expiration or termination of this Agreement.
3. Intellectual Property Rights.
3.1. System, Software and Services. SPRCHRGR grants Customer a limited, non-exclusive, non-transferrable, non-sublicensable, non-assignable license to use the System, Software, Custom Development and Services as set forth in this Agreement. SPRCHRGR retains all right, title and interest in and to its Services, the System, Custom Developments, and the Software. Apart from a limited right and license to utilize the System as part of the Services, Customer is not acquiring any right or license to the System, the Third-Party Site, Custom Developments, or the Software as a result of this Agreement. Customer acknowledges that SPRCHRGR’s Intellectual Property Rights in the System, Custom Developments, Software and Services include both a copyright interest as well as a trade secret interest in the secret features, functions, operations, methodologies, capacities and method of action of the Software, all of which are maintained in secrecy and confidentiality by SPRCHRGR. All rights not granted expressly to Customer are reserved to SPRCHRGR.
3.2. Network Security; Backup. SPRCHRGR will implement commercially reasonable security measures to prevent unauthorized access to computer hardware and other equipment and/or software owned and used by SPRCHRGR or its third-party service providers to deliver the Services. The System may permit Authorized Users to disable certain security measures. SPRCHRGR strongly encourages Customer to ensure that its Authorized Users keep all security measures fully engaged. Customer shall be solely responsible for the security of Customer’s computer and networking systems and credentials used to access the Services. Customer shall be solely responsible for all acts and omissions of its Authorized Users. Customer must use reasonable efforts to prevent unauthorized access to the System and notify SPRCHRGR promptly of any breach of security affecting the System. To the extent the Services provide access to Third-Party Sites, the parties acknowledge that SPRCHRGR has no control over such sites and will not be liable for any breach of network security implemented by a Third-Party Site. SPRCHRGR will maintain commercially reasonable backup measures designed to ensure that Customer Data stored on the System remains accessible during the term of the applicable Order; provided however that Customer acknowledges and agrees that SPRCHRGR has no ability or right to back up any data residing on any Third-Party Site and is not liable in any way for any data stored on any Third-Party Site.
3.3. Restrictions. Customer may not, and may not allow any third party to: (i) attempt to disassemble, reverse engineer, reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means or disclose any of the foregoing, (ii) use the Software or any SPRCHRGR Confidential Information in any way to create any software that performs functions that are the same as, or similar to, those performed by the Software, (iii) provide, rent, lease, lend, or use the Software for timesharing, subscription, or service bureau purposes, or (iv) sublicense, transfer or assign any of the rights or licenses granted under this Agreement. Customer shall not: (x) use the Software for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any foreign, state, local or federal law or regulation or industry standard; or (y) transmit Customer Data over, or use Customer Data in connection with, the Software, in any manner that infringes upon or misappropriates any third party right.
3.4. Feedback. Customer may submit comments, information, questions, data, ideas, description of processes, or other information provided to SPRCHRGR (“Feedback”). Customer agrees that SPRCHRGR is free to use, disclose, reproduce, adapt, license, or otherwise distribute and exploit the Feedback without any obligation or restriction.
4. Duration.
4.1. These terms are applicable to any Order until the latter of (a) the termination date indicated in any Order, (b) until terminated in accordance with its terms, or (c) until we are no longer providing Services to you.
5. Customer Accounts and Security.
5.1. Customer Accounts. To use certain features of the Services, Customer may be required to create an account (an “Account”). Customer is solely responsible for the information associated with such Account and anything that happens related to their Account. Customer agrees to provide true, accurate, current, and complete information as requested by any forms and maintain and update such information to keep it true, accurate, current, and complete. Customer’s failure to maintain true, accurate, current, and complete Account information may result in Customer’s inability to access or use the Services.
5.2. Account Security. Customer is solely responsible for maintaining the confidentiality of Account passwords. Customer agrees to notify SPRCHRGR immediately if Customer becomes aware of any unauthorized use of their password or Account at support@sprchrgr.com.
6. Fees; Taxes.
6.1. Fees. Customer will pay SPRCHRGR the Fees indicated in each applicable Order. Except as expressly stated in the Order, in these Terms, or as required by applicable law, Fees paid are non-refundable, and payment obligations are non-cancelable. Additionally, if Customer terminates this Agreement other than pursuant to this Section 6.1, SPRCHRGR will invoice Customer for any documented non-cancellable, non-mitigable expenses that SPRCHRGR has incurred with respect to the Services (including, without limitation, license fees paid to third parties) and Customer shall pay such invoiced amount at the earlier of within thirty (30) days of receipt of such invoice, or according to the same payment terms defined in the applicable Order. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, ANY SERVICE PROVIDED DURING A FREE TRIAL PERIOD IS PROVIDED "AS-IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR INDEMNITIES.
6.2. Taxes. You are responsible for any Taxes other than SPRCHRGR’s income tax. Fees and expenses are exclusive of Taxes, levies, or duties. If SPRCHRGR has the legal obligation to pay or collect Taxes for which you are responsible under this section, SPRCHRGR will invoice you, and you will pay that amount unless you provide SPRCHRGR with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Liability and Risk Management.
7.1. Insurance. Each of Customer and SPRCHRGR will maintain commercially reasonable property and liability insurance in respect of their actions and obligations under this Agreement.
7.2. Limited Warranty. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EXCLUDED CAUSES OR EXCLUDEDDISPUTES (AS DEFINED HEREIN), NEITHER PARTY NOR THEIR LICENSORS (AND IN THE CASE OF SPRCHRGR, ANY OF SPRCHRGR’S AFFILIATES AND THEIR RESPECTIVE BUSINESS PARTNERS, LICENSEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR STATUTORY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR FOR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, PRODUCTS LIABILITY AND STRICT LIABILITY, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN, OR (B) AMOUNTS IN THE AGGREGATE THAT EXCEED THE ACTUAL FEES PAID OR PAYABLE BY YOU TO SPRCHRGR (I) DURING YOUR CURRENT SUBSCRIPTION TERM (IF YOU ARE A SUBSCRIPTION SERVICES CUSTOMER), OR (II) DURING THE SIX (6) MONTHS PRIOR TO THE EVENTS FROM WHICH A CLAIM ARISES (IF YOU ARE A CONSULTING SERVICES CUSTOMER).
7.3. The parties agree that the waivers and limitations specified in this Section 7 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
7.4. The parties agree that (i) the agreements made in this section reflect a reasonable allocation of risk, and (ii) that each party would not enter into the Agreement without these limitations on liability.
8. Confidential Information.
8.1. Prior Agreements Superseded. This Section 8 expressly supersedes any prior confidentiality agreement or non-disclosure agreement between the Parties unless otherwise expressly agreed in writing.
8.2. Confidential Information. Each party (as applicable, the “Recipient”) may not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees or representatives of the Recipient with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Recipient by the other party (as applicable, the “Discloser”). The Recipient will safeguard against disclosure of such Confidential Information to the same extent as with the Recipient’s own Confidential Information but shall at least use reasonable care. Upon termination or expiration of this Agreement, or earlier upon request of the Discloser, the Recipient shall promptly return to the Discloser or destroy the Discloser’s Confidential Information in its possession or under its control.
8.3. Exclusions. The confidentiality obligations of this Section 8 shall not apply to any such information that: (a) is or becomes publicly known without any fault of or participation by the Recipient or its Representatives, (b) was in Recipient’s possession prior to the time it was received from Discloser or came into Recipient’s possession thereafter, in each case lawfully obtained from a source other than Discloser or its Representatives and not subject to any obligation of confidentiality or restriction on use, or (c) is independently developed by the Recipient without reference to the Discloser’s Confidential Information. It shall not be a violation of this Section 8 for Recipient to disclose any Confidential Information to the extent it is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Recipient shall, unless prohibited by law, notify the Discloser of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the Discloser.
8.4. Equitable Relief. Any use or disclosure of the Discloser’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Discloser irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that the Discloser may request injunctive or other equitable relief seeking to restrain such use or disclosure.
8.5. Duration. The provisions of this Section 8 will survive the termination or expiration of this Agreement for any reason for a period of five years, except that with respect to any Confidential Information that constitutes a trade secret under applicable, with respect to which these provisions will survive for so long as such information retains its status as a trade secret under such law.
9. Indemnification.
9.1. By SPRCHRGR. SPRCHRGR will indemnify, defend, and hold harmless Customer and its affiliates and their respective officers, directors, employees, agents and other representatives (collectively, the “Indemnitees”) against all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties, including reasonable attorneys’ and consultants’ fees or other expenses (collectively “Losses”) arising from any claims, actions, or proceedings, arising out of any claim that (a) the Software infringes, violates or misappropriates any third party’s Intellectual Property Rights (an “IP Claim”), or (b) a third party has suffered injury to person or damage to tangible personal property caused by the gross negligence or willful misconduct of SPRCHRGR or any of its officers, directors, employees, or agents.
9.2. Remedies for IP Claims. If SPRCHRGR determines that its provision of the Services is the subject of an IP Claim, SPRCHRGR may, in its sole discretion and at its sole cost and expense, elect to (x) modify the Services to eliminate the source of the IP Claim, (y) cease to provide the applicable Services and refund any prepaid Fees in respect of the applicable Services, or (z) procure for Customer the right to continue the use of the infringing component of the Services. SPRCHRGR’s execution and completion of the foregoing remedies will be SPRCHRGR’s sole liability, and Customer’s exclusive remedy, for any such IP Claim.
9.3. Exceptions. SPRCHRGR will have no indemnity obligation for any IP Claim alleged to result from: (a) any combination, operation, or use of the System, SPRCHRGR Software or Services by Customer with any programs or equipment not supplied by SPRCHRGR or not specified in writing for such purpose (collectively, the “Combined Items”) if such infringement would have been avoided absent the combination, operation, or use of such Combined Items, (b) any unauthorized modification of the System or SPRCHRGR Software by Client, or (c) Client’s failure to implement any replacement or modification of the System or SPRCHRGR Software provided by SPRCHRGR.
9.4. By Customer. Customer will indemnify, defend, and hold harmless SPRCHRGR, and its affiliates, officers, directors, employees, agents, and other representatives against all Losses arising from any claims, actions or proceedings, arising out of or in connection with (a) Customer’s use of the Services, (b) Customer’s breach or violation of any of these Terms, or (c) Customer’s violation of the rights of any third party, including, without limitation, any claims that (i) Customer Data, or the collection or use thereof, infringes or misappropriates any third party right, or (ii) that the combination by Customer of any Customer software, Customer Data, content, other data, marks or other materials provided by Customer or utilized by or on behalf of Customer with the Services infringes or violates any third party’s Intellectual Property Rights.
9.5. Indemnification Procedure. If any Party is entitled to indemnification under this Article 11, the Party seeking such indemnification (the “Indemnified Party”) must: (i) promptly notify the Party obligated to provide indemnification (the “Indemnitor”) of the existence of the Claim (together with copies of any applicable documents or other relevant information), provided that any delay or failure to so notify the Indemnitor shall not relieve the Indemnitor from its responsibilities hereunder, except to the extent the Indemnitor is actually prejudiced by any such failure or delay; (ii) provide Indemnitor with reasonable assistance and cooperation in connection with the defense of the Claim, in each case at the Indemnitor’s sole expense; and (iii) allow Indemnitor to control the Claim and any related settlement negotiations, provided that the Indemnified Party shall have the right to participate in such Claim or settlement negotiations with counsel at its selection and at its sole expense. The Indemnitor may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Indemnified Party or diminishes the Indemnified Party’s rights without first obtaining the Indemnified Party’s express written consent.
10. Survival.
10.1. All payment obligations accrued prior to the date of termination survive termination of this Agreement, together with all terms of this Agreement, which by their nature are intended to survive termination of this Agreement.
11. Dispute Resolution.
11.1. Customer Concerns. Most concerns can be resolved quickly and to Customer’s satisfaction by contacting us at support@sprchrgr.com. We will try our best to resolve any disagreement with you by first discussing it in good faith. If we can’t resolve the issue within thirty (30) days of discussion, you or we may escalate dispute resolution actions as set forth in this Section 11.
11.2. Disputes. By agreeing to these Terms, Customer expressly agrees to the arbitration of all Disputes. Any controversy, allegation, or claim that arises out of or relates to the Services, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any Excluded Disputes defined in Section 11.6 below, shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, the remaining portions of the arbitration provisions will remain in force.
11.3. Arbitration Procedures. In the event Customer’s concern cannot be resolved informally, Customer and SPRCHRGR agree that, except as provided in Section 11.6 below, all Disputes, (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 11 (Dispute Resolution) and the JAMS Rules, the terms in this Section 11 will control and prevail.
Except as otherwise set forth in Section 11.6 below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and SPRCHRGR will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and SPRCHRGR may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU ARE AGREEING TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
11.4. Location. The arbitration will take place in the City and County of Los Angeles, California, United States of America, unless the parties agree to video, phone, or internet connection appearances.
11.5. Limitations. You and SPRCHRGR agree that any arbitration shall be limited to the Claim between SPRCHRGR and you individually. YOU AND SPRCHRGR AGREE THAT (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
11.6. Exceptions to Arbitration. You and SPRCHRGR agree that the following Claims are not subject to the above provisions concerning binding arbitration (“Excluded Disputes”): (i) any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights; (ii) any claim related to, or arising from, allegations of theft, piracy, invasion of privacy, unauthorized use, or enforcing collection of past-due fees payable to us under this Agreement; (iii) any claim related to or arising from a Consulting Services Order which contains its own dispute resolution terms; and (iv) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
11.7. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we initiate arbitration for a Claim, we will pay the costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
11.8. Severability. You and SPRCHRGR agree that if any portion of this Section 11 is found illegal or unenforceable (except any portion of Section 11.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 11.6 is found to be illegal or unenforceable then neither you nor SPRCHRGR will elect to arbitrate any Claim falling within that portion of Section 11.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the City and County of Los Angeles, California, United States of America, and you and SPRCHRGR agree to submit to the personal jurisdiction of that court.
12. Miscellaneous.
12.1. Compliance with Laws. Each party must comply with all applicable laws in connection with its acts and obligations under this Agreement.
12.2. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument.
12.3. Independent Contractors. The parties are independent contractors. SPRCHRGR will pay its own taxes and insurance and all of its own expenses other than those billed to you under this Agreement. We are not authorized to make any agreement, warranty, or representation on your behalf or to incur any obligation, express or implied, on your behalf. Both SPRCHRGR and Customer are authorized to enter into this Agreement and there are no other agreements existing that would prohibit either of us from doing so.
12.4. Communications Between Us. Unless another provision of these Terms requires otherwise, if any condition of these Terms requires you to give us notice in writing, you can send this to us at support@sprchrgr.com. If we are required to give you notice in writing, we may do so by email or using any other contact details you provide to us. Otherwise, the parties may communicate via standard business communication methods, including text, email, secure file transfer and cloud-based collaboration.
12.5. Publicity. SPRCHRGR may list Customer as a customer and use Customer’s logo on SPRCHRGR’s website, on publicly available customer lists, and in media releases. Additionally, if we write something nice about you, we authorize you to use this in your marketing materials, and you authorize us to do the same if you write something nice about us. In contrast, neither party will (i) make any statements (in person, online, or anywhere else) to anyone that criticizes, disparages, defames, or compromises the other party’s name, brand or reputation, or (ii) take any actions that are likely to injure, hinder, or otherwise interfere with the other party’s operations. Without limiting the foregoing, if either party is required by applicable law or court order to provide a statement about the other party, the restrictions in this paragraph do not prevent either party from telling the truth.
12.6. Modifications. SPRCHRGR may modify these Terms from time to time and any such modification will be effective when posted to SPRCHRGR’s website.
12.7. No Waiver. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement.
12.8. Force Majeure. Neither SPRCHRGR nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
12.9. Assignment. Neither party may assign or delegate any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign these Terms in their entirety, without the other party’s consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
12.10. Severability. Except as otherwise provided in Section 11.8, if any provision of these Terms is held to be invalid or unenforceable, then that portion shall be severed, and the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under these Terms.
12.11 Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by SPRCHRGR of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
12.12. No Third-Party Beneficiaries. These Terms do not create any right in favor of any third party.
12.13. Governing Law. These Terms, and any matter arising out of or relating to these Terms, and any claim, cause of action, controversy, or matter in dispute between Customer and SPRCHRGR, whether sounding in contract, tort, statute, regulation, or otherwise, will be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without reference to any choice or conflict of laws principles (whether of the State of California or any other jurisdiction).
12.14. Entire Agreement. These Terms, including any documents, policies or terms expressly referenced and incorporated into these Terms, constitute the entire agreement and understanding between Customer and SPRCHRGR with respect to the Services and supersede all prior or contemporaneous discussions, proposals, and agreements between Customer and SPRCHRGR relating to the Services.