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Terms of Service

  1. Subscription Service

        (a)  General Features.  Sponge grants you access to the question and answer website (the "Q&A Site") where you will be able to access Sponge's proprietary questions and answers platform and software (collectively, the "Sponge Services").  The Q&A Site shall include the General Specifications.  Sponge shall provide Maintenance Releases that may consist of enhancements, modifications, updates, corrections or a subsequent release or version of the Sponge Services that Sponge generally makes available for you.
        (b)  Cooperation of Parties.  You will provide Sponge with all cooperation, information and support that may reasonably be required by Sponge for the performance of its obligations hereunder
        (c) "Effective Date": This agreement is effective as of the date you check the box next to "I agree to Sponge's Terms and Conditions."
  2. Product support

    Sponge provides Product Support Services during "Standard Business Hours" which are from Monday through Friday from 9am to 5pm PST, excluding Holidays.
    Product Support Services are for Questions pertaining to the use of the Sponge Q&A Platform, including questions related to the Admin Panel, features and functions, the performance of basic actions, Q&A community setup and SSO or API feature use.  Product Support specifically excludes assistance for CSS and HTML customization as these are design and customization services. 
  3. Intellectual Property Rights

        (a)    Sponge Intellectual Property Rights.  Sponge retains all right, title and interest in and to the work product resulting from the Sponge Services and any and all of its proprietary technology, products and promotional materials developed or provided, using solely Sponge's resources, prior to and after the Effective Date.  
        (b)    Client Intellectual Property Rights.  You retain all right, title and interest in and to any and all intellectual property that you currently own or created, produced, provided and/or delivered pursuant to this Agreement, including, without limitation, any and all product images, product names, brand names, trade names, trademarks, service marks, copyrighted material, patented material, trade secrets, proprietary technology, products and promotional or marketing materials developed by you or provided by you to Sponge prior to and after the Effective Date (collectively, "Client Intellectual Property").  
        (c)    Q&A Data.  You shall be the sole owner of and retain all right, title and interest in and to all the content on the Q&A site ("Q&A Content"), and all the user information, questions, answers, and data derived through the Q&A Site (collectively, "Q&A Data").  During the term of the agreement and solely for the purposes of fulfilling the Sponge Services to you hereunder, you hereby grant to Sponge a perpetual, royalty-free, unrestricted, worldwide license to use the data as provided.  Sponge may make copies of the Q&A Data, as Sponge deems necessary in order to facilitate the posting and storage of such content on the Q&A Site; and Sponge may retain archived copies of the Q&A Data.
        (d)    Limited License to Client.  Sponge hereby agrees to grant you a revocable, non-exclusive, non-transferable, limited license (without the right to sublicense) to use the Sponge Services and the Q&A Site for the purposes set forth herein and subject to the terms set forth herein (the "Client License").  Sponge will grant a limited license to your end-users to use the Sponge Services in accordance with this Terms of Service, which may be updated or revised by Sponge at any time and from time to time prior to and after the Effective Date of this Agreement.  You acknowledge that, except for your License, you have not acquired and will not acquire any right, interest or title to the Sponge Services by reason of this Agreement or through the exercise of any rights in the Sponge Services granted to you hereunder.  
        (e)    Sponge Services Usage Restrictions.  You may not, directly or indirectly: (i) make any warranties or representations on behalf of Sponge or its licensors; or (ii) modify, change (except for formatting changes) or, except as specifically authorized hereunder, take other action with respect to any Sponge Services.  You will use the Sponge Services in accordance with all applicable laws.
        (f)    Licensed Client Marks.  You hereby grant Sponge a revocable, nonexclusive, non-transferable, non-assignable license to display, copy and reproduce your trademarks and service marks, as provided by you from time to time (the "Licensed Client Marks"), on marketing and promotional materials prepared for any purpose relating to the marketing, promotion and development of the Sponge Services.  Sponge acknowledges that the Licensed Client Marks are your intellectual property.  
        (g)    Infringement Claims.  Each Party shall immediately inform the other Party of any claim(s) by any third parties to all or any portion of any intellectual property rights of the other Party described herein, to any infringement or potential infringement by any third party of any intellectual property rights of the other Party described herein, and each party, as applicable, shall diligently cooperate with the other party as reasonably necessary to assist any prosecution or defense of a claim for infringement of any intellectual property rights in and to the intellectual property rights of the other Party described herein, at the sole and exclusive cost and expense of the owner of such intellectual property.
        (h)    Injunctive Relief.  Each Party agrees that violation of the other Party's intellectual property rights set forth within this Section 2 would result in irreparable injury and the aggrieved Party shall be entitled to seek equitable relief, including injunctive relief and specific performance in the event of any breach hereof and terminate any license(s) granted by the aggrieved Party to the other Party pursuant hereunder, which termination shall be effective immediately upon Disclosing Party's delivery of written notice to Receiving Party of such termination.
    Fees; Payment Terms; Revenue Sharing.  
        (a)    Subscription Fees.  For consideration of the license granted hereunder, YOU agree to pay to Sponge the Subscription fee set forth on sponge's website (www.getsponge.com/signup) (the "Subscription Fee").  All Subscription Fees are payable monthly in advance and are non-refundable. Any Subscription Fees incurred prior to the expiration or termination of the Agreement will not be refunded by Sponge to you under any circumstances.  you will pay all invoices within thirty (30) days following Sponge's delivery of such invoice.  There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused.  
        (b)    Payment Method.  All invoices described in this Agreement shall be payable, at Sponge's option, either (i) by wire transfer to an account designated by Sponge; (ii) by check payable to the order of "Sponge, Inc." and delivered by the due date by any delivery method set forth within Section 9(d) and to Sponge's address set forth within Section 9(d); or (iii) by credit card.  
        (c)    Late Payment.  Sponge reserves the right to deactivate your access to the Q&A Site and/or Sponge Services for failure to pay applicable fees. you agree to pay interest at the rate of either 1.5% per month on any outstanding balance, together with costs of collection, including attorney's fees and costs. In the event you fail to pay any amount when due, Sponge may immediately suspend or terminate this Agreement and your access to the Q&A Site and/or Sponge Services.
  4. Confidentiality

    Unless prior written consent is obtained from the other Party ("Disclosing Party") hereto, each Party ("Receiving Party") will keep in strictest confidence all information delivered by Disclosing Party and identified by Disclosing Party as confidential, or which, from the circumstances, in good faith and in good conscience, Receiving Party should reasonable expect to be treated as confidential, including, without limitation, all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or not stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing (collectively, "Confidential Information").  Receiving Party shall be excused from these nondisclosure provisions if Confidential Information has been, or is subsequently, made public by Disclosing Party, is independently developed by Receiving Party without reference to Confidential Information of Disclosing Party, if Disclosing Party gives its express, prior written consent to the public disclosure of the information, or if the disclosure is required by any law or governmental or quasi-governmental rule or regulation. Receiving Party agrees that violation of this Section would result in irreparable injury and Disclosing Party shall be entitled to seek equitable relief, including injunctive relief and specific performance in the event of any breach hereof.
  5. Indemnification

    Each Party (the "Indemnifying Party") will indemnify and hold harmless the other Party (the "Indemnified Party"), its affiliates, officers, directors, employees, stockholders, partners, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and expenses of attorneys, accountants, and experts (collectively, the "Damages"), arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, the "Claims") brought by any third party against the Indemnified Party alleging that the services, content and materials provided pursuant to this Agreement by the Indemnifying Party relating to an infringement by the Indemnifying Party infringes any patents, copyrights or other proprietary rights of any third party.  The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (the "Actions") that is the subject of this Section 5.  The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions.  The Indemnifying Party shall assume the defense of any Action with counsel reasonably satisfactory to the Indemnified Party.  The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel's fees and expenses.  The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
  6. Term and Termination

        (a)     Term; Renewal.   The term of this Agreement shall commence on the Effective Date and shall continue for twelve (12) consecutive months thereafter ("Initial Term"), unless sooner terminated pursuant to Section 6(b) below.  The term of this Agreement shall automatically renew thereafter for successive and consecutive twelve (12) month terms (each, a "Renewal Term" and collectively with the Initial Term, the "Term"), unless either party provides written notice of its desire not to renew at least 30 days prior to the end of the then-current term.
        (b)    Termination.  This Agreement may be terminated by either Party: (i) except as set forth at (iv) hereinbelow, effective upon thirty (30) days after written notice has been given of a material breach of this Agreement by the other Party which remains uncured; (ii) effective immediately in the event a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such Party, or if a receiver or trustee is appointed for all or any part of the property or assets of such Party; (iii) effective immediately in the event a Party breaches the provisions of Section 2 with respect to intellectual property rights and/or Section 4 with respect to Confidential Information; (iv) by a written agreement executed by the Parties effective as of the date set forth within such written agreement; or (v) as provided for in the General Specifications under the section labeled "Additional Terms", if any.
        (c)    Effect of Termination.  Notwithstanding anything to the contrary in this Agreement, any termination of this Agreement shall not relieve either Party hereto of any of its obligations or liabilities accrued hereunder prior to such termination.  Termination or expiration of this Agreement for any reason or no reason shall immediately terminate any and all licenses granted by each Party to the other Party pursuant to Section 2 hereinabove.  Within ten (10) days after termination of this Agreement, each Party shall return to the other Party or destroy, as instructed by the other Party, all copies of confidential information of the other Party then in the Party's possession, and such Party shall certify in writing to other Party, within two (2) weeks of any termination of this Agreement, that through commercially reasonable efforts and to the best of its knowledge the original and all copies of confidential information have been destroyed or returned to owning Party.  Client acknowledges and agrees that any request for a copy of the Q&A Data must be made prior to thirty (30) days following any termination or expiration of this Agreement.  If Client does not make a request for the Q&A Data within this 30-day period, Client acknowledge and agrees that Client will be deemed to have waived its right to obtain a copy of the Q&A Data.  Notwithstanding anything to the contrary, the definitions of this Agreement and the respective rights and obligations of the Parties under Sections 2(a), 2(b), 2(c), 2(e), 2(g), 2(h), 4, 5, 6(c), 7, 8, and 9 shall survive any termination or expiration of this Agreement.
  7. Disclaimer of Warranties  

    YOU expressly acknowledge that the Sponge services and any Content on or available through the Sponge Services are provided "AS IS" without warranty, express or implied.  Sponge makes no express or implied warranties or representations with respect to the SPONGE services or any Content, including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, Sponge makes no representation that the operation of the SERVICES OR THE Q&A Site will be uninterrupted or error-free.  
  8. Limitation of Liability

    EXCLUSIVE OF LIABILITY UNDER SECTION 5 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH OF THE PARTY'S RESPECTIVE TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER.
  9. General Provisions

        (a) Independent Contractors. The Parties and their respective personnel are and shall be independent contractors and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.  Neither Party is, nor shall be deemed to be, a joint venture, legal partner or franchisee of the other Party for any purpose whatsoever.  
        (b) Waiver.  No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced.  No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
        (c)  Severability.  In the event that any one or more of the provisions contained herein shall for any reason be held invalid, unenforceable, or void in any respect under the laws of the jurisdiction governing the entire Agreement, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
        (d)    Notice. All notices, requests and other communications under this Agreement must be in writing.
        (e) Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by either Party without the express prior written consent of the other Party or its successors (which consent will not be unreasonably withheld), except for an assignment by a Party to another entity acquiring the Party through direct acquisition, merger or similar transaction, and which entity has expressly agreed to assume all rights and obligations of the Party hereunder.
        (f)  Law.  This Agreement shall be governed in all respects by the laws of the state of California without regard to its conflict of laws provisions.  Each party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in San Francisco County, California in connection with any action to enforce the provisions of the Agreement, to recover damages or other relief for breach or default under the Agreement, or otherwise arising under or by reason of the Agreement.  
        (h)    Successors and Assigns.  This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, successors, assigns, administrators, executors and other legal representatives.
        (i)    Authority; Counterparts.  By signing this Agreement, you warrant and represent that you have been and are on the date of signing duly authorized to execute this Agreement by all necessary corporate action.  This Agreement may be signed in counterparts, which, taken together, will constitute one and the same agreement and will be effective as of the date first written above.
        (j)    Force Majeure.  Except for payment obligations hereunder, neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers.
        (k)    Construction.  This Agreement will be deemed drafted by both Parties, and it may not be construed against any Party as the drafter of the document.