SharpSpring Website and Products Terms and Conditions of Use
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE PRODUCTS.
Last revised: July 18, 2022
Table of Contents:
- General Terms and Conditions
- Communication with You
- Copyright and Trademark Information
- Fees; Payment; Taxes
- Access and Use of the Site and the Products.
- Restrictions and Responsibilities.
- Term and Termination
- Warranty Disclaimer; Remedies; Release
- Limitation of Liability
- Restricted Persons; Export of the Site, the Products or Technical Data
- Third Party Websites and Services
- Notice and Take Down Procedures
- California-Specific Terms
- International Use; Prohibited by Law
- Additional Resources
General Terms and Conditions
- Minimum Age and Ability to Bind. The Site and the Products are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, individuals under the age of 18 are not authorized to use the Site or the Products. If you are using the Site or the Products on behalf of an organization, you represent and warrant that you have the ability to bind such organization by your use of the Site and the Products.
- Registration. You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site, and you agree to update such information if it changes.
- Account Access. We may, in our discretion, permit you to authorize additional users to use your SharpSpring account. Your administrators shall have the authority to act on your behalf to perform administrative duties, enter into binding agreements and accept charges. You are responsible for all activity occurring under your SharpSpring account and each additional user’s compliance with this Agreement.
- Username and Password. You are responsible for maintaining the security of your SharpSpring account, passwords and files (including the passwords and files that your authorized users, if any, have access to). We will accept the instructions of any individual who claims to be authorized to direct changes to your SharpSpring account so long as such person presents the account owner username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone. We have no knowledge of your organizational structure, if you are registering for the Products as an organization, or your personal relationships, if you are a person. You will be solely responsible and liable for any activity that occurs under your username and the activities of your authorized users, if any, and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use of your SharpSpring account or any other breach of security.
Communication With You.
By registering with the Site or the Products and providing your name, email, postal or residential address, and/or phone number, you expressly consent to receive email and other communications from SharpSpring, both over the short term and periodically. These communications, among other things, may be about the Site or the Products, new product offers, promotions, and other matters. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Site and Products. You may unsubscribe from our marketing communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to email@example.com, although you will continue to receive transactional messages from us.
You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Authorized Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved or even if retained and retrievable will be made available to you.
By entering into this Agreement, you acknowledge that we may contact you via telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) to discuss the products and you consent to such contact. Further, you consent to receive such phone calls at the telephone number you entered on the site. You do not need to agree to this provision in order to use the Site or purchase the Products and if you would like us not to contact you by telephone, please submit a request here. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.
Copyright and Trademark Information.
The Site and the information it contains, are the property of SharpSpring and, in some cases, its affiliates and licensors, and are protected by United States and international intellectual property laws. “SharpSpring” and the SharpSpring logo are registered trademarks of SharpSpring in the United States and other countries. This is not intended as a complete list of our trademarks and other SharpSpring product or service names or logos appearing in the Site may be trademarks of SharpSpring or its affiliates.
Fees; Payment; Taxes.
- Fee Schedule. Once you have completed any applicable free trial period or exceeded any limits described on the applicable fee schedule (the “Fee Schedule”), you will be subject to fees in accordance with the Fee Schedule. You may view the Fee Schedule at any time in the “Billing Overview” section within your SharpSpring account. Applicable fees will be billed monthly for the Products, even if you are not actively using the Products. The Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your subscription. We may provide notice of changes to the Fee Schedule by email, postal mail, or by posting a notice in the Product or to the Site. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule, but you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for payment due and owed hereunder.
- Other Billing Arrangements. If you receive the Products by means of one of our resellers or partners (a “Reseller”), the Reseller may be responsible for billing you for the Products and you may be subject to a different fee schedule and additional terms and conditions. You are responsible for reviewing your fee schedule and any additional terms and conditions. In the event of any conflict between this Agreement and the Reseller’s terms and conditions, this Agreement shall control except with respect to the payment provisions set forth in this Section 4. If you cease to be a customer of a Reseller, any special pricing, benefits or terms may no longer be available to you. We may rely on information provided by the Reseller, if any, with respect to the status of your SharpSpring account.
- Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
- Payment. Payment for the Products will be made by a payment method accepted by us. Fees are only payable in the currencies made available to you when you purchase our Products. Beginning at the end of any applicable free trial period and continuing until such time as your subscription to the applicable Product(s) is terminated, you authorize us to charge your selected payment method on a regular monthly basis for the fees then-currently associated with the Products together with any applicable sales and use taxes. If we are for any reason unable to effect automatic payment, we will attempt to notify you by email and your SharpSpring account may be disabled until payment is received.
- Taxes. We collect and remit tax from our customers located in certain state, local and foreign jurisdictions where software delivered as a service is taxable and where we have either physical, economic, affiliate or click-through nexus or permanent establishment. We determine your local taxing jurisdiction based on the billing address that you list in the “My Account” section of your SharpSpring account. Fees set forth in the Fee Schedule do not take into account any taxes. You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this Agreement, use or possession of the Products or your products or services.
Access and Use of the Site and the Products.
- Grant of Access. Subject to the provisions of this Agreement, you are granted a limited, nonexclusive, revocable, nontransferable (subject to Section 16.3 (Assignment)), worldwide right to use the Products solely for your internal business purposes. You will not license, sublicense, sell, resell, transfer, assign or distribute the Products, or otherwise make the Products available, to any third party.
- Prohibition on Spam; Permission Practices. The Products may not be used for the sending of unsolicited email messages (sometimes called “spam”). All messages sent by means of the Site or the Products shall be in compliance with our Anti-Spam Policy.You are responsible for ensuring that your use of the Site and the Products do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Site and the Products if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you.You agree to import, access or otherwise use only contact lists in connection with the Site and the Products for which all listed parties have consented to receive correspondence from you (such as by opting into your “Join My Mailing List” link or similar list sign-up technology). It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks “Like” on your Facebook® page, or “follows” you on Twitter®. You agree not to send messages through the Site or the Products to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network.
- Messages. In your use of the Site or the Products, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.You agree that you are the sole or designated “sender” (as such term is defined in the United States CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent by you using the Site or the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Site or the Products (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”)).You agree that for any email message sent by you using the Site or the Products, (i) the “from” line of any email message sent by you using the Site or the Products will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the “subject” line of any email message sent by you using the Site or the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.
- Unsubscribe. Except for one-to-one transactional communications the primary purpose of which is the facilitation or confirmation of an existing commercial transaction and not the advertisement or promotion of a commercial product or service, every email message sent in connection with the Products must contain an “unsubscribe” link that allows contacts to remove themselves from your mailing list. Each such link must remain operational for at least 60 days after the date on which you send the message, and must be in form and substance satisfactory to us. You agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your SharpSpring account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your SharpSpring subscription and this Agreement. You agree that you shall not utilize the Site or the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a “commercial electronic mail message” as defined in the CAN-SPAM Act or Canada’s Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.
- Compliance with Laws. The Site and the Products shall only be used for lawful purposes and you shall use the Site and the Products only in compliance with this Agreement and all other applicable U.S., state, local and international laws in your jurisdiction, including, as applicable:
- the CAN-SPAM Act;
- Canada’s Anti-Spam Legislation;
- California Consumer Privacy Act (“CCPA”);
- the European Union’s General Data Protection Regulation 2016/679 (“GDPR”);
- Brazil’s Lei Geral de Proteção de Dados Pessoais (“LGPD”);
- any policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws;
- laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your products or services;
- laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards
- laws that govern lotteries, sweepstakes, contests and promotions; and
- laws that govern the collection of donations and charitable giving.
You further agree to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of our Site or Products.
You may not use our Site or Products for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
You are responsible for determining whether our Site or Products are suitable for you to use in light of any regulations, such as the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), European data privacy laws, or other laws. If you are subject to a particular regulation and you use our Site or Products, then we will not be liable if our Site or Products do not meet those requirements.
- Restrictions on Use. We prohibit the use of the Site or the Products by any person or organization that violates our Prohibited Content and Commerce Statement. You further agree to comply with the following in connection with your use of the Site and the Products:
- You may not access or use the Site or the Products in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Products that is not authorized by us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Site or the Products).
- You shall not use the Site, the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party (except as expressly permitted by our partner programs).
- Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with Site, the Products or the Software, or any content, including but not limited to newsletters distributed to you by us in connection with the Products.
- You may not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Products for any unauthorized purpose.
- You may not use the Site or the Products in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Products, including SharpSpring’s servers, computer network, or user accounts.
- You may not use the Site or the Products in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Site or the Products.
- You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site or the Products for public or commercial purposes without our express written permission.
- You shall not interfere with or disrupt the Site or any related SharpSpring websites or servers or networks connected to the Site or the Products.
- You shall not restrict or inhibit any other user from enjoying and using the Site or the Products.
- You shall not use the Site or the Products in violation of applicable law or third party rights (including third party terms of service), and shall not use the Site or the Products for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
- You shall not repeatedly upload and remove unique email addresses, materially misrepresent the number of contacts you initially intend to include in your account upon signing up for the Products, or otherwise try to manipulate data in an attempt to circumvent our Fee Schedule or other billing procedures.
- You shall not set up multiple accounts for any individual or organization in order to send substantially similar content unless you are part of a franchise.
- You may only use our templates, any images we provide, or any other features or functionality of the Products with the Products themselves (for example, you may not take an image or template and use it on materials you create without using the Products). This restriction also applies to customized templates prepared by our professional services group.
- You shall not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Products. If you own the document or image, you can use it outside of the Products provided it is not hosted by us.
- You shall not include any incentives (for example, coupons, discounts or awards) in any messages you send by means of the Site or the Products that encourage a recipient to forward the message to another recipient, other than as expressly encouraged and permitted within the applicable Product.
- Limitations on Use. You understand that not all messages or campaigns sent through use of the Site or the Products will be received by or will be capable of being viewed by their intended recipients or will be viewable by your recipients in the same way they appear in our product environment. You further understand that delivery of messages by means of the Site or the Products may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short. You agree that we may establish general practices and limits concerning use of the Site or the Products, including the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Site or the Products. We reserve the right to modify, revise, suspend or discontinue any Product in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Products in any manner. If we discontinue any Product in its entirety that you are using, we will provide you with advance notice and an opportunity to cancel your subscription.
- Contacts’ Privacy.
- Customer Privacy Notice. You shall adopt and comply with your own “customer privacy notice.” Your privacy notice will be posted so that your contacts have notice of your data collection and use practices, including your practices with respect to contact data that you obtain from us, and will otherwise comply with applicable law.
- Sensitive Information. You will not import or incorporate into any contact lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind. The Site and Products may be used by businesses subject to HIPAA however the Site and Products were not designed to be HIPAA compliant and you agree not to use the Site and Products to collect health records.
- No Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Site and the Products, including without limitation, modems, hardware, servers, software, operating systems, networking, web servers (together, the “Equipment”). You are also responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without your knowledge or consent.
- Professional Services. If, at your request, we agree to perform professional or consulting services for your benefit, the parties will execute an order, statement of work or other similar document (each, an “Order”). Each Order will be governed by this Agreement as supplemented by the Professional Services Addendum at https://sharpspring.com/legal/professionalservicesterms (the “Professional Services Addendum”). Any conflict between this Agreement and the Professional Services Addendum will be resolved in favor of the Professional Services Addendum solely with respect to professional or consulting services.
- SharpSpring Ads. In the event you use SharpSpring Ads, you are subject to the SharpSpring Ads Addendum at https://sharpspring.com/legal/sharpspringadsterms (the “SharpSpring Ads Addendum”). Any conflict between this Agreement and the SharpSpring Ads Addendum will be resolved in favor of the SharpSpring Ads Addendum solely with respect to SharpSpring Ads.
Restrictions and Responsibilities.
- No Rights in Software. This is an Agreement for services and access to the Site and Products, and, except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Site or the Products or any software, documentation, or data related to the Site or the Products (“Software”); remove any proprietary notices or labels from the Site or the Products or any Software; modify, translate, or create derivative works based on the Site or the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or the Products or any Software. If you are using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, the Software or the Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (a) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (b) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (c) to provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
- Monitoring and Removal. Although we have no obligation to monitor the content provided by you or your use of the Site or the Products, we may do so and may block any messages or campaigns, remove any content, or prohibit any use of the Site or the Products that we believe may be in violation of any provision of this Agreement or for any other reason. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable.
- Assistance. You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. We do not warrant or guarantee that use of or compliance with this information will be sufficient to comply with your obligations hereunder, applicable law or with third party rights.
- Your Information and Content.
- Your Content and Contacts. We will also obtain any information that you provide to us in connection with your use of the Site or the Products, such as contact lists (including email addresses and phone numbers of your contacts) and other content. We acknowledge your ownership rights in such contact lists and content. We will never sell or rent your contact lists to anyone without your permission. You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display your contacts and content only as required by us to offer and operate the Products and related services and if applicable as permitted by our Data Processing Addendum and California-Specific Terms. You further grant us a nonexclusive, limited license to study any data, information, or materials that you provide to the Site or Products (the “Customer Data”) and to use Customer Data to develop better algorithms for the Site and Products (“Algorithms”), and for additional products or features developed by us. Under no circumstances will we have any right to include or incorporate any personally identifiable information in the Algorithms.You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement.
- Legal Disclosures. We may disclose information about you, or your Customer Data, to third parties if we determine that disclosure is reasonably necessary to comply with the law or an enforceable government request, to protect any person from death or serious bodily injury, to investigate or prevent fraud or abuse against us or our customers, or to protect our property or other legal rights.
- Submissions. If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Site or otherwise (“Submissions”), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
- Automated Data Collection. You consent to us collecting data from your website, including websites not provided, maintained, or hosted by SharpSpring, through automated means, such as through harvesting bots, robots, spiders, or scrapers (“Automated Data Collection”) and the use of that data for internal business purposes, including to provide you with automatic email templates and to better understand our customer base. We will not use Automated Data Collection to collect data from your website if you have set the /robots.txt file to disallow such collection.
- Backups. You are responsible for making frequent backup copies of your contacts and content. We are not obligated to provide you with a way to download or otherwise export your contacts and content out of the Site and Products.
Term and Termination.
- Term and Automatic Renewal. Your subscription for the Products is for the period specified in your Order Form, Addendum, or online order confirmation, as applicable (the “Initial Term”), and if applicable, shall automatically renew for additional periods as specified in your Order Form, Addendum, or online order confirmation, as applicable (each a “Renewal Term”, and together with the Initial Term, the “Term”).
- Termination. To terminate your subscription for a Product, you must request termination at least 31 days prior to the end of the Initial Term or any Renewal Term by calling or submitting a ticket to SharpSpring customer support. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR SUBSCRIPTION. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR SUBSCRIPTION TO THE PRODUCTS OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR SUBSCRIPTION. We may, in our sole discretion, whether to comply with applicable law or regulation or otherwise, terminate your SharpSpring subscription or your access to or use of the Site or the Products, disable your SharpSpring account or access to the Site or the Products, and/or delete or confiscate all or a portion of your contacts, files, content, and/or domain name registrations, or put your SharpSpring account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. Under the CAN-SPAM Act, Canada’s Anti-Spam Legislation and the GDPR, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your SharpSpring subscription.If your SharpSpring account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your contacts and content.
- Early Termination. In addition to any other remedies it may have, either party may also terminate a subscription for a Product upon 30 days’ notice (or without notice in the case of nonpayment or abuse of the Product), if the other party materially breaches any of the terms or conditions of this Agreement. In the event of early termination, you will pay in full for the Product up to and including the last day on which the Product is provided to you.
- Refunds. You will not receive any refunds or credits for partial use or non-use of the Products during the Term.
- Effect of Termination or Expiration. Upon termination or expiration of your subscription for the Products, this Agreement and any rights or licenses granted to you hereunder shall immediately terminate except that all sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, including, Sections 1-3, 4.3-4.5, and 5-16. If you are billed in arrears, additional payments may be required upon termination related to the subscription for the Products through the end of the Term.
We will defend, indemnify and hold you harmless from liability to third parties resulting from infringement by the Site and Products of any United States patent or any copyright or misappropriation of any trade secret, provided you promptly notify us of any and all threats, claims and proceedings related thereto and you provide reasonable assistance and we are given the opportunity to assume sole control over defense and settlement. We will not be responsible for any settlement we do not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Site and Products (i) that are not supplied by us, (ii) that are made in whole or in part in accordance with your specifications, (iii) that are modified after delivery by us, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where your use of the Product(s) is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Product is held by a court of competent jurisdiction to be infringing or we believe it to be infringing, we may, at our option and expense (a) replace or modify the Product to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain a license for you to continue using the Product, or (c) if neither of the foregoing is commercially practicable, terminate the subscription and your rights hereunder and provide you with a refund of any prepaid, unused fees for the Product.
You hereby agree to defend, indemnify and hold harmless us, our affiliates and our underlying service providers (i.e. vendors who help us provide the Products), business partners, third-party suppliers and providers, account providers, licensors, distributors and agents and our and their respective officers, directors, employees, distributors and agents from and against any claims, damages, suits, actions, demands, proceedings (whether legal or administrative), losses, liabilities, penalties, settlements and expenses (including costs and reasonable attorneys’ fees) in connection with any claim or action that (a) arises from any actual or alleged breach by you of this Agreement; (b) arises from your contacts and content, including the content or effects of any messages you distribute, websites you publish, events you host, surveys you administer, social media campaigns you publish, promotions or deals you offer, donations you collect or products or services you sell (including claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, defective products or services or unclaimed property); (c) arises from your provision of incomplete or inaccurate information to your contacts or customers; or (d) otherwise arises from or relates to your use of the Site or the Products. You agree to provide us with prompt written notice in the event of any such claims or actions. In addition, you acknowledge and agree that we have the right to seek damages when you use the Site or the Products for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Products, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
Warranty Disclaimer; Remedies; Release.
YOU EXPRESSLY AGREE THAT THE SITE AND THE PRODUCTS (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE OR THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE SITE OR THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY STORE CONTENT, EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS.
TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE CONTACTS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF SHARPSPRING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SHARPSPRING OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “SHARPSPRING”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SHARPSPRING SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF SHARPSPRING TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY SHARPSPRING TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that SharpSpring has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
Restricted Persons; Export of the Site, the Products or Technical Data.
The Site and the Products are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You may not use the Products to export or reexport, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Products, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, SharpSpring also does not register, and prohibits the use of any of our Products in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Products.
Third Party Websites and Services.
The Site and the Products contain links to websites operated by third parties (“Third Party Sites”), some of which may have established relationships with SharpSpring and some of which may not. We do not have control over the content and performance of Third Party Sites. We have not reviewed, and cannot review or control, the material, including computer software or other goods or services, made available on Third Party Sites, and we do not represent, warrant, or endorse any Third Party Sites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Sites. We disclaim, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Sites.
Notice and Take Down Procedures.
If you believe any materials accessible on or from the Site or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from the Site or the Products by contacting our copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) email address.
- A statement that you have a good faith belief that the complaint of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Site and the Products is as follows:
1601 Trapelo Road
Waltham, MA 02451
Phone: (781) 472-8100
For all email submissions please include the subject line: “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME).”
If you have received a notification that a claim of infringement has been made against you or your material has been removed or access to it has been disabled, you may send us a counter-notification to our copyright agent identified above that includes the following information:
- Identification of the material that has been removed or to which access has been disabled and the location it appeared before it was removed or access was disabled, or any other pertinent information that will allow us to locate the material.
- Your name, address, phone number, and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or if you are located outside the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification or the agent of such person.
- A statement indicating that “under penalty of perjury” you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- Your signature or the electronic equivalent.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of SharpSpring subscribers who are repeat infringers.
The California-Specific Terms will apply if you are a Business under the CCPA and you share with us Personal Information (as that term is defined under the CCPA) about California residents which would otherwise constitute a Sale (as that term is defined under the CCPA).
International Use; Prohibited by Law.
In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities, email and the Site or the Products. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Site or the Products are controlled and operated by us from the United States (although we may share data with third parties around the world to assist us in providing the Site or the Products) and we make no representation that the Site or the Products are appropriate or available for use in other locations. Those who access the Site or the Products from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Site or the Products where prohibited by law.
For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your contacts’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) of such personal data. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).
To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process personal data and send communications to that individual on your behalf. If you sign and return our Data Processing Addendum, the additional data processing terms set forth in the addendum shall apply where you are a Controller subject to the GDPR.
- Full Force and Effect. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Entire Agreement. We and you agree that this Agreement, together with any Order Form or Addendum entered into by the parties, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and any Order Form or Addendum entered into by the parties, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. However, in the event of a conflict between the provisions of this Agreement and any Order Form or Addendum entered into by the parties, the terms of such Order Form or Addendum, as applicable, shall prevail. No delay or omission by either party in exercising any right or remedy under this Agreement, an Order Form or Addendum, or existing at law or equity shall be considered a waiver of such right or remedy.
- Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
- Further Assurances. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
- Force Majeure. We are not liable for any default or delay in the performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
- Third Party Beneficiaries. SharpSpring’s affiliates, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
- Titles. The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
- Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party.
- Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
- Governing Law and Legal Actions. You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement, whether in contract, tort, fraud, misrepresentation or any other legal theory. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in Boston, Massachusetts, unless you are a “consumer” as defined under the AAA rules. Disputes with consumers, as therein defined, will be resolved by binding arbitration conducted under the AAA’s Consumer Arbitration Rules, as applicable. Consumers may request that the arbitration occur in or near the city/state stated in your account record with us. The procedures for commencing an arbitration are available here (provided however, that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court only on an individual, non-class basis).ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMERS, SUBSCRIBERS OR USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.Only a court, and not an arbitrator, shall determine the validity and effect of the class action waiver. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against us in violation of this paragraph, you agree to pay our reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of conflict or choice of law rules.The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
- Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by you may cause irreparable injury to SharpSpring and SharpSpring’s licensors and suppliers, and may therefore entitle SharpSpring or SharpSpring’s licensors or suppliers, as the case may be, to injunctive relief.
- Additional Information. If you have any questions about the rights and restrictions above, or would like to report any inaccuracies or errors, please contact us by email at firstname.lastname@example.org.
- Privacy Notice
- Anti-Spam Policy
- Prohibited Content and Commerce Statement
- California-Specific Terms
- Data Process Agreement
- UK Standard Contractual Clauses
- EU Standard Contractual Clauses
- Professional Services Terms
- SharpSpring Ads
- Vulnerability Disclosure
- UK Standards and Contractual Clauses