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

2.2 Compliance.
Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Sparrow’s standard published policies and codes of conduct then in effect and all applicable laws and regulations (including, without limitation, those relevant to privacy, intellectual property and the like). Although Sparrow has no obligation to monitor Customer’s use of the Service, Sparrow may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.

2.3 Equipment.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services it or its employees need to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of its and its employees’ Equipment, account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of its and its employees’ account or the Equipment with or without Customer’s knowledge or consent.

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

3.1 Confidentiality
“Proprietary Information” means any information or data disclosed or made available by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. Proprietary Information of Sparrow includes, without limitation, all software, documentation and other non-public information relating to the Service or the features, functionality and performance thereof. The Receiving Party agrees: (i) to take reasonable precautions to protect all Proprietary Information of the Disclosing Party, and (ii) not to use (except as permitted herein) or divulge to any third person (other than (a) employees or contractors with a reasonable need to know who are bound by confidentiality obligations consistent with this Agreement and (b) as required to provide employee-related information and paperwork to permitted third parties solely in connection with our performance of the Service (e.g., employee’s doctor, California EDD, Customer short-term disability provider)) any such Proprietary Information of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or © was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (f) is required to be disclosed by law.

3.2 Data Security.
Sparrow will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded to the Service by Customer or collected by Sparrow in the provision of the Service, including all documentation, data, and other non-public information relating to Customer’s employees (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Sparrow will maintain appropriate administrative, physical and technical safeguards to protect the security of Customer Data. Sparrow’s security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by Sparrow personnel except (a) to provide and maintain the Service and prevent or address service or technical problems, (b) as required by applicable law, or © as Customer expressly permits in writing or under this Agreement. Sparrow will not materially diminish the protections provided in this Section during the term of this Agreement.

3.3 Proprietary Rights.
Sparrow shall own and retain all right, title and interest in and to (a) the Service and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Service, services or support, and © all intellectual property rights related to any of the foregoing. If Customer provides any suggestions, comments for enhancements or functionality or other feedback to Sparrow with respect to the Service or any of Sparrow’s other products or services, Sparrow will have the full, free and unencumbered right to use and otherwise fully exploit the same in connection with the Service and its other products and services.

3.4 Service Improvements; Aggregate Data.
Notwithstanding anything to the contrary, Sparrow shall have the right collect and analyze data and information relating to the use and performance of various aspects of the Service, Customer Data, and related technologies, and Sparrow will be free (during and after the term hereof) to (i) use such information and data to provide, improve and enhance the Service and other Sparrow offerings, and (ii) otherwise use and disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.1 Fees.
Customer will pay Sparrow the then applicable subscription and other fees for the Service and any other applicable services, as described in the relevant Order Form (or in the Service itself, as applicable) in accordance with the terms therein (the “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. If Customer’s use of the Service exceeds any applicable limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Sparrow reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial subscription term or thencurrent renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email). If Customer believes that Sparrow has billed Customer incorrectly, Customer must contact Sparrow no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Sparrow’s customer support department.

4.2 Payment Terms.
Customer will pay Sparrow the then applicable subscription and other fees for the Service and any other applicable services, pursuant to the payment terms set forth in the relevant Order Form. Unpaid or late Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Service other than U.S. taxes based on Sparrow’s net income.

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

5.2 Termination.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or five (5) days’ in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured during the notice period. Sparrow may also reasonably suspend Customer’s and/or any users’ (including Customer’s employees) access to or use of Service at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise places Sparrow (or its customers or other interests) at risk of harm, damage, loss or liability. Upon termination, Customer’s right to use the Service shall immediately terminate, all outstanding Fees due for the Service for the entire Term (regardless of any early termination) shall immediately become due and payable, Customer shall immediately cease us of and return (or at Sparrow’s option destroy) all Sparrow-related software and related documentation in its possession or control, and each party shall return to the other all Proprietary Information. The terms of the following Sections shall survive expiration or termination of this Agreement: 2, 3, 4, 5.2, 7.2, and 8-12.

Sparrow shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or copyright or misappropriation of any trade secret, provided Sparrow is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Sparrow will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to the Service or portions or components thereof (i) not supplied by Sparrow, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Sparrow, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. Customer will indemnify Sparrow from all damages, settlements, attorneys’ fees and expenses related to (i) any claim of infringement or misappropriation excluded from Sparrow’s indemnity obligation by the preceding sentence, (ii) any other claim arising from or in connection with Customer’s use of the Service (except to the extent covered by Sparrow’s indemnity obligations above), or (iii) any claim arising from or relating to Customer Data or its use as contemplated herein (including any claim that Customer did not have all necessary consents or authorizations with respect thereto).

7.1 Warranty.
Sparrow warrants that it shall use reasonable efforts consistent with prevailing industry standards to operate and maintain the Service in a manner which minimizes errors and interruptions in the Service. As Customer’s sole remedy, Sparrow shall use diligent efforts to repair or replace any portion of the Service that does not conform to the foregoing warranty

7.1 Disclaimer.
SPARROW does not warrant that the SERVICE will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND ANY OR OTHER SERVICES ARE PROVIDED “AS IS” AND SPARROW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT WITH RESPECT TO THIRD PARTIES PROVIDING SERVICES ON SPARROW’S BEHALF (E.G., CLOUD HOSTING SERVICE PROVIDER), SPARROW IS NOT LIABLE FOR ANY ACT OR OMISSION OF THIRD PARTIES THAT RECEIVE ACCESS TO EMPLOYEE-RELATED INFORMATION OR PAPERWORK IN CONNECTION WITH THE SERVICE (E.G., EMPLOYEE’S DOCTOR, CALIFORNIA EDD, SHORT-TERM DISABILITY PROVIDER, CALIFORNIA EDD).

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, A PARTY AND ITS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; © FOR ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (PLUS ANY AMOUNTS PAYABLE) TO SPARROW UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SPARROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Customer may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Service and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

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. This Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of such party’s assets or business. Sparrow may use subcontractors in its performance of this Agreement; provided that Sparrow shall remain responsible for any such subcontractor’s performance hereunder. Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same Sparrow Service(a “Separate Signed Agreement”), this Agreement 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 all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control. However, any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sparrow in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any claim, action or proceeding arising from or relating to this Agreement may only be brought in the state or federal courts of California and each party hereby consents to the exclusive jurisdiction thereof.