Terms and Conditions

You must ACCEPT the terms and conditions to proceed

Updated: March 28th, 2023

1. Access to and Use of the Services

a) Provision of the Services – Springbig will make the Services available to you in accordance with your signed contract, provided support documentation and any applicable Signed Contract Amendments. The services will comply with the Springbig security overview. We will provide the Services in accordance with laws applicable to Springbig’s provision of the Services to its customers generally (i.e. without regard for your particular use of the Services), and subject to your use of the Services in accordance with your contract, these Terms, the Documentation and any applicable Order Form.

b) You may use the Services, on a non-exclusive basis, solely (i) in connection with and as necessary for your activities pursuant to these Terms; and (ii) allow your employees to use the Services pursuant to this Section.

c) Your use of these services is additionally subject to the Agreement executed between Springbig and You.

2. Customer Data

a) “Customer Data” consists of data and other information made available to us by or for you through the use of the Services under these Terms. These data may include, without limitation, some or all of customers’ names, phone numbers, email address, birthday, number and dates of purchases with details.

b) The ownership of its data shall remain with Client. Springbig will provide Merchant, upon Merchant’s request a copy of its data, as available at the time of the request, provided that your account is in good standing. Springbig may, at our discretion, analyze, aggregate, process and disseminate this data in aggregated form without identifying the You, your Customers and/or any PII data, with or without collecting fees for the above.

c) Except as agreed mutually in writing, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.

d) You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request; (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.

3. Customer Responsibilities, Restrictions and Requirements

We are excited about your use of Springbig Services. But you should know you and your employees have a number of responsibilities you must carry out, and there are some restrictions on what you can do with them and requirements that you must follow if you use the Services.

a) Your Responsibilities. You will: (i) be solely responsible for all use (whether or not authorized) of the Services and Documentation under your account, including for the quality and integrity of Customer Data and each Customer Application; (ii) use Services only in accordance with this Agreement, the Acceptable Use Policy, Documentation, Contract, Order Forms or other applicable terms relating to the use of the Services, and applicable laws; (iii) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with the Contract, these Terms, Documentation, the Acceptable Use Policy, and any Order Forms or other terms of sales of the Services; (iv) do your best to prevent unauthorized access to or use of the Services and notify Springbig promptly of any such unauthorized access or use; (v) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (vi) comply with the representations and warranties you make in Section 6 (Representations and Warranties) below.

b) Services Usage Restrictions. With regard to the Services, you agree that: (i) except to make the Services available to your employees in connection with the use of each Customer Application as permitted herein, you will not transfer, resell, lease, license or otherwise make available the Services to third parties or offer them on a standalone basis; (ii) you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time; (iii) you will ensure that we are entitled to use your Customer Data, as needed to provide the Services; (iv) you will not use the Services in any manner that violates any applicable law; (v) You will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; (vi) you will not create multiple Customer Applications or Service accounts to simulate or act as a single Customer Application or Service account (respectively) or otherwise access the Service in a manner intended to avoid incurring fees; (vii) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services.

c) Springbig as Service Provider Only, with You as Initiator of All Communications
You understand and agree that under your Contract, the Documentation and any applicable Order Forms, Springbig’s role is the provider of Services for your use, and as such, (i) Springbig does not originate, send, deliver any communications to any recipient via SMS, MMS or email; (ii) that Springbig’s role is limited to a technology platform communication service provider only; (iii) that all communications, whether, without limitation, SMS, MMS or email, are created by and initiated by You, including communications regarding promotions, whether generated by you or sent automatically by via the auto-connect/auto-campaign service configured by you, or generated by your customers’ purchase activity or as a response to your customers’ inbound messaging.(iv) Springbig as your communications service provider will ‘opt out’ any customer of yours from receiving future email, SMS and MMS messages provided that said customer has followed the provided instructions within the SMS/MMS Message or Email they have received that outlines how to properly request being opted out of receiving future messages.You understand and acknowledge that any customer data provided to Springbig via whatever means, including without limitation, by inbound text, data imports, tablet sign-ins, API calls or manual entry, only includes those customers who have explicitly opted into your Loyalty/Communications program and have explicitly agreed to receive your communications, including without limitation SMS, MMS and email.

4. Changes to the Services

The features and functions of the Services, including core services and the Springbig API may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes.

5. Representations and Warranties; Warranty Disclaimer

a) Springbig makes no representations or warranties with respect to recording or monitoring of SMS or MMS messages, email or other communications.

b) The origination and content of these communications is entirely your responsibility

c) You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to our Services, and you further agree to indemnify us and our affiliates in accordance with the terms of your signed agreement with Springbig for claims arising out of or related to your acts or omissions in connection with providing notice and obtaining consents regarding the origination or content of the SMS or MMS messages, email or other communications using the Services.

6. Acceptable Use Policy – Prohibited Uses

You agree not to use, and, not to encourage or allow any employee to use, the Springbig Services in the following prohibited ways:

a) Using the Services in a manner that is or otherwise encourages (i) any illegal, fraudulent, or abusive activities or (ii) materially interfering with the business or activities of Springbig or harms other Springbig customers.

b) Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a material security or service risk to Springbig or any of its other customers.

c) Reverse-engineering the Services in order to find limitations, vulnerabilities, or evade filtering capabilities.

d) Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Services.

e) Transmitting any material, data, or content that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs.

f) Violating or facilitating the violation of any applicable laws or regulations of any applicable jurisdiction, including, without limitation, (i) applicable laws or regulations related to the transmission of data and recording or monitoring of phone calls and other forms of communication; (i) applicable laws or regulations that prohibit engaging in any unsolicited advertising, marketing, or transmission of communications; (ii) applicable anti-spam laws or regulations such as the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act; or (iv) applicable data protection or privacy laws, regulations, or legislation.

g) Using the Services in connection with unsolicited, unwanted, or harassing communications (commercial or otherwise), including, but not limited to, phone calls, SMS or MMS messages, chat, voice mail, video, email, or faxes.

h) Using the Services to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses.

i) Using the Services to receive, send or otherwise process Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless Customer has signed a Business Associate Agreement with Springbig or Customer’s use of the Services fits within the “conduit” or some other exception for requiring a Business Associate Agreement.

j) Using the Springbig Services to record or monitor a phone call or other communication without securing consent from the participants to the phone call or other communication as required under applicable law (including, as applicable, California’s Invasion of Privacy Act and similar laws in other jurisdictions).

k) Using the Services in a manner that generates inquiries from a law enforcement, government, or regulatory agency or triggers such an agency to request the suspension of the Services to Customer and/or Customer’s phone numbers.

l) Using the Services to transmit any material, data, or content that infringes the intellectual property rights or other rights of third parties.

m) Using the Services to transmit any material or content that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material or content that Springbig reasonably believes degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category.

n) Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message, email, or phone call.

o) Using the Springbig Services in any manner that causes a telecommunications provider to complain about such use to Springbig or materially violates the following: (a) industry standards, policies and applicable guidelines published by (i) the CTIA (Cellular Telecommunications Industry Association), (ii) the Mobile Marketing Association, or (iii) any other generally recognized industry associations; (b) telecommunications provider guidelines and usage requirements as communicated in writing by Springbig to Customer.

p) Using the Springbig Services to transmit any material or content that is offensive, inappropriate, pornographic, obscene, illegal, or otherwise objectionable to any person or entity.

q) Using the Services in a way that violates generally recognized industry guidelines, including, without limitation, (i) using non-permission based email lists (i.e., lists in which each recipient has not explicitly granted permission to receive emails from Customer by affirmatively opting-in to receive those emails); (ii) using purchased or rented email lists; (iii) using third party email addresses, domain names, or mail servers without proper permission; (iv) sending emails to non-specific addresses

(e.g., or ); (v) sending emails that result in an unacceptable number of spam or unsolicited commercial email complaints (even if the emails themselves are not actually spam or unsolicited commercial email); (vi) disguising the origin or subject matter of any email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any email; and (vii) including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any email that encourages a recipient to forward the email to another recipient.

7. Changes to Terms and Conditions

Changes may be made to these Terms from time to time. If you do not accept these Terms, do not use the Application or make any Services available to your customers. If, at any future point in time, no longer you agree to with the Terms, you must stop using our Services. Notwithstanding the foregoing, your continued use of the Applications or provision of the Services to your customers will be deemed acceptance to amended or updated Terms. As such, you should check frequently to see if we have updated these Terms.

Exhibit B – Terms and Conditions Continued

Platform. During the Term, Springbig will provide the Platform and Services as described in Exhibit A in accordance with the terms and conditions of this Exhibit B. Subject to compliance with this Agreement, Springbig grants to Customer a nonexclusive, personal and nontransferable license, during the Term set forth in Exhibit A to access and use the Platform for Customer’s own use and subject to any additional limitations set forth in Exhibit A.
1. Restrictions. Customer may only use the Platform to process and manage its own documents, information, content, records, files, and data entered into, received, processed, or stored by or for Customer using the Platform (“Customer Data”). Customer will not, in whole or in part, (a) copy the Platform or Documentation or distribute copies of the Platform or Documentation to any third party; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Platform or Documentation except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Platform to third parties; or (d) use the Platform or Documentation to act as a service bureau or application provider, or to permit access to the Platform or Documentation of any kind to any third party. For the purposes of this Agreement, “Documentation” shall mean any on-line help files or written instruction manuals regarding the use of the Program provided to Customer by Springbig.
2. Acceptable Use Policy. Customer’s use of the Platform and the Services is subject to the Springbig Acceptable Use Policy (the “AUP”) available at https://springbig.com/terms/ which may be amended from time to time by Springbig.
3. Customer Hardware. Customer is responsible for providing all hardware and internet service necessary in order to access the Platform and the Services.
Warranties and Limitation of Liability.
1. Representations and Warranties. Springbig warrants that it will provide the Platform and Services as detailed in this Agreement. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the person signing this Agreement on its behalf has been duly authorized to enter into this Agreement; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party and be enforceable against it in accordance with its terms. Customer warrants to Springbig that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Springbig and processed in accordance with this Agreement, the Customer Data does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law or regulation.
2. Disclaimer of Warranties. Except for the express warranties provided in this Agreement, each party disclaims all other warranties, representations or covenants, express or implied, statutory or other, with respect to the use of the Services, the Platform or otherwise regarding this Agreement. Without limiting the foregoing, Springbig specifically disclaims any warranty of merchantability, fitness for a particular purpose, warranties arising from course of dealing, usage or trade practice, or that the Platform or Services will be completely error free or operate without interruption.
3. SMS/MMS Messaging. Customer acknowledges that Springbig delivers the SMS/MMS messages to the applicable carriers but cannot and does not guarantee that carriers will ultimately deliver the SMS/MMS messages. Certain messaging filters and carrier policies may prevent delivery to the intended recipient. This non-delivery is outside of Springbig’s control and is not a breach of Springbig’s obligations under this Agreement. Such messages are counted against Customer’s message credit total.
4. Limitation of Liability. Except as expressly provided in this Agreement, in no event will either party be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, for any special, consequential, incidental or indirect damages, any loss of profits or revenue, or any business interruption. Except as described below, neither party’s liability to the other party for a claim arising out of this Agreement in tort, contract, or otherwise shall exceed all fees paid by Customer to Springbig during the six-month period immediately prior to the date of such claim. The limitations of the preceding two sentences will not apply to any sums payable pursuant to either party’s indemnity obligations under this Agreement. For clarity, nothing in this Section will limit Customer’s obligation to pay fees properly due and payable under this Agreement.
1. Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement that the Disclosing Party has designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
2. Obligations. The parties acknowledge that the Services require disclosure by the Disclosing Party to the Receiving Party of certain of the Disclosing Party’s Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein: (a) maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care; (b) use the information solely to carry out the purposes for which the information was disclosed; and limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party’s suppliers or licensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the Services; and (iii) the Receiving Party’s external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible to the Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of the Receiving Party’s confidentiality obligations hereunder. Customer shall not disclose the terms and conditions of this Agreement, including without limitation, pricing, to any third party without Springbig’s prior written consent.
3. Exceptions. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation. If Recipient becomes legally compelled to disclose any of the Confidential Information, the Recipient will provide the Disclosing Party with prompt written notice thereof in order that the Disclosing Party may seek a protective order or other appropriate remedy. Disclosure of Confidential Information shall be permitted to the extent demanded by subpoena or other validly issued administrative or judicial process; provided that the Receiving Party shall promptly notify the Disclosing Party and tender to it, if it so elects, the defense of such demand. If requested by the Disclosing Party, the Receiving Party shall cooperate (at the expense of the Disclosing Party) in the defense of the demand.
Termination.
1. Either Party may terminate this Agreement for cause upon thirty days prior written notice if the other party is in breach of any material provision of this Agreement herein not corrected within a thirty day cure period which begins once the written notice of breach is received by the breaching party.
2. In addition, either party may immediately terminate this Agreement if the other party files a petition in bankruptcy, is adjudicated bankrupt or insolvent, or has a receiver or trustee in bankruptcy or insolvency appointed for its business.
3. Springbig reserves the right to suspend access to the Platform or the Services if Customer has undisputed amounts more than ten days past due, until all such undisputed amounts are paid in full. Springbig also reserves the right to suspend Customer’s access to the Services or Platform if Springbig is required by law to suspend access to the Services or Platform or if Springbig reasonably determines that Customer or any of its representatives, employees, agents, or Clients: (i) are using the Services or Platform in a way that disrupts or poses a security risk to the Services or Platform, may that harm Springbig’s systems or may that subject Springbig or any third party to liability; or (ii) are using the Platform for fraudulent or illegal activities.
4. If Springbig terminates this Agreement pursuant to Section 4(a) then all unpaid fees due under the remainder of the Initial Term or any Renewal Term (as the case may be) will accelerate and become due and payable in full upon receipt of Springbig’s invoice.
Intellectual Property Ownership.
1. Platform. Springbig is and will remain the exclusive owner of all right, title and interest in and to the Platform, and all other specifications, manuals, programs, documentation, reports, systems, work product and/or other tangible or intangible material of any nature used, developed, provided or accessible to Customer in connection with this Agreement, including all intellectual property rights therein, together will all improvements and derivative works, including any improvements based on suggestions or feedback provided by Customer (the “Springbig Materials”). Customer hereby acknowledges and agrees that the Springbig Materials, including without limitation, Sprinbig’s Confidential Information, constitute and contain valuable proprietary products and trade secrets of Springbig, embodying substantial creative efforts and confidential information, ideas, and expressions.
2. Customer Data. All Customer data collected within the Platform on behalf of Customer shall be the property of Customer (“Customer Data”). At the request of Customer, Springbig will provide it with a copy of all available Customer Data, provided that Customer is in good standing and has no overdue balance due Springbig. Springbig does not guarantee availability of the Customer Data after the termination or expiration of this Agreement. Springbig may analyze, aggregate, process and disseminate: (i) text message transmission history or logs data; (ii) any general information based on the Customer Data; or (iii) data from Customer’s use of the Services, all in aggregated form without identifying Customer, Customer’s Clients or any personally identifiable information (“Aggregated Data”). Notwithstanding anything else in this Agreement to the contrary, Springbig may access or disclose Customer Data, if: (i) Springbig believes that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process, government request, or court order; (ii) to enforce this Agreement, or (iii) to protect the security or integrity of the Platform.
3. Feedback. To the extent that Springbig receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Platform or any other products or services (“Feedback”), Springbig may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services.
Compliance with Laws.
1. Customer and Springbig acknowledge and agree that (i) the use, possession, cultivation, manufacture, transportation, purchase and sale of cannabis is federally illegal (“Conflicting Federal Laws”), (ii) the federal laws and certain states’ laws regarding the use, possession, cultivation, transportation, manufacture and furnishing of cannabis (the “Industry”) are in conflict; (iii) engaging in the lawful conduct of business operations in the Industry under state law may risk violation of federal law, and (iv) such inherent risks are assumed by each party, and each party has elected to execute and its obligations under this Agreement despite such risks and waives any defense to enforcement of the Agreement based on cannabis being federally illegal. Customer must independently determine the requirements of, and will comply with, applicable laws and regulations in its use of the Services and the Platform. Other than the Conflicting Federal Laws, each party will comply with all applicable laws and regulations.
2. Each party agrees that the invalidity for public policy reasons and/or the violation of federal cannabis laws of this Agreement, is not a valid defense to any dispute or claim arising out of this Agreement. Each party expressly waives the right to present any defense related to the federal illegality of cannabis and agrees that such defense shall not be asserted, and will not apply, in any dispute or claim arising out of this Agreement.
3. If, at any time, a change in applicable laws renders the performance of its duties impossible or illegal for Springbig, Springbig shall be entitled to cancel the Services and terminate the relationship with Customer without liability.
4. Customer Certification. Customer represents, warrants and covenants that it is in compliance with all applicable laws, including particularly state and local cannabis laws, but excluding the federal prohibition under the U.S. Controlled Substances Act of the cultivation, processing, sale or possession of cannabis or parts of cannabis including the sale or possession of cannabis paraphernalia, advertising the sale of cannabis, products containing cannabis or cannabis paraphernalia, or controlling or managing real estate on which cannabis is trafficked, as long as those activities are in compliance with applicable state law. Without limiting the foregoing, Customer has and will maintain any requisite governmental approvals required for operating a commercial cannabis business in compliance with state and local law and Customer is currently in good standing with any state or local cannabis regulator (“Cannabis Licenses”). Customer will notify Springbig within three business days if its Cannabis Licenses are suspended or revoked, or if it becomes aware of any government action raising any risk of criminal enforcement against Customer. If requested by Springbig, Customer will execute a certification of the matters set forth in this paragraph on an annual basis, and send it to Springbig via email.
5. Consent to Receive Marketing Publications (TCPA). The Platform involves the sending of any combination of SMS, MMS and email communications to Customer’s Clients. Customer acknowledges and agrees that the Platform is merely a passive conduit to deliver messages that are developed and created by Customer and that Customer is solely responsible for initiating the messages Customer sends to its Clients. It is Customer’s responsibility to obtain all necessary and legally required consents from Customer’s Clients to send such messages, including the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C., 227, et seq., as well as any applicable state and local laws regulating the receipt of text messages. Customer represents and warrants that it has obtained, or shall obtain prior to sending any messages, such consents from its Clients and that the method used to obtain the consents is compliant with the TCPA and any applicable state and local laws. Customer further represents and warrants that if it imports any telephone numbers (i.e., those obtained from its Clients or those obtained through a prior vendor) into the Platform, it has obtained the appropriate legal consent for each and every number. Customer shall ensure that the contact information for its Clients remains current and up to date and shall promptly remove any disconnected or reassigned telephone numbers and telephone numbers that opt out of receiving messages.
Indemnification.
1. Indemnification of Customer by Springbig. Springbig shall defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Platform or Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, fines, interest and costs awarded against Customer, or for amounts paid by Customer under a settlement approved by Springbig in writing, as a result of a Claim Against Customer, unless and except to the extent that such infringement is caused by (i) modification of the Platform or Service by anyone other than Springbig, (ii) Springbig’s use of trademarks, Customer Data, or other materials supplied by Customer, (iii) use the Platform or Service in connection or in combination with equipment, devices, or software not provided by Springbig or contemplated in the Documentation (but only to the extent that the Platform or Service alone would not have infringed); or (iv) the use of the Platform or Service other than as permitted under this Agreement or in a manner for which it was not intended. If the Platform or any related Services becomes the subject of an infringement claim under this Section, or in the Springbig’s opinion is likely to become the subject of such a claim, then Springbig may, at its option, (A) replace or modify the Platform or Services to make it non-infringing or (B) procure the right for Customer to continue using the Platform or Services. If neither alternative is available on commercially reasonable terms, Springbig shall have the right to terminate the Agreement and shall refund a pro rata portion of any prepaid fees for the Platform and Service. The foregoing obligations will be Customer’s sole and exclusive remedy for any claims of infringement.
2. Indemnification of Springbig by Customer. Customer shall defend Springbig against any claim, demand, suit, allegation or proceeding made or brought against Springbig by a third party based on (i) Customer’s breach of Section 6(d) (Customer Certification) or 6(e) (Consent to Receive Marketing Publications (TCPA), or (ii) Springbig’s use of trademarks, Customer Data or other materials supplied by Customer. Customer will indemnify Springbig from any damages, attorney fees, fines, interest and costs awarded against Customer, or for amounts paid by Customer under a settlement approved by Springbig in writing.
3. Indemnification Procedures. Each party will give prompt written notice to the other of any claim against which the party seeks to be indemnified. Upon giving such notice, the indemnifying party shall be obligated to defend such indemnitee against such claim, and shall be entitled to assume control of the defense of the claim with counsel chosen by the indemnifying party, reasonably satisfactory to the indemnitee. The indemnitee will cooperate fully with and assist the indemnifying party in its defense against such claim in all reasonable respects. The indemnifying party will keep the indemnitee fully apprised at all times as to the status of the defense. Notwithstanding the foregoing, the indemnitee will have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying party nor any indemnitee shall be liable for any settlement of action or claim effected without its consent. Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section. Until both (a) the indemnitee receives notice from indemnifying party that it will defend, and (b) the indemnifying party assumes such defense, the indemnitee may, at any time after ten days from the date notice of claim is given to the indemnifying party by the indemnitee, resist or otherwise defend the claim or, after consultation with and consent of the indemnifying party, settle or otherwise compromise or pay the claim. The indemnitee shall keep the indemnifying party fully apprised at all times as to the status of the defense.
General Terms and Conditions.
1. Entire Agreement. The Business Associate Agreement located at https://springbig.com/business-association-agreement/ is incorporated herein and is considered a part of this Agreement. This Agreement contains the entire understanding of Customer and Springbig and supersedes all prior understandings, whether written or oral, pertaining to the subject matter hereof. Except for the AUP, this Agreement may only be amended, modified, changed, waived, or rescinded in by written instrument duly signed by authorized officers of both parties. Without limiting the foregoing, any terms contained in Customer’s purchase orders or other similar documents are deemed to be for administrative convenience only and do not modify the terms of this Agreement. Springbig reserves the right, to make changes to the Platform or the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Springbig’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law, provided that no changes pursuant to section (a) above, materially reduce the usability, functionality, performance or purpose of the Service or the Platform.
2. Survival. Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect. This Agreement may not be assigned by either party without the prior written approval of the other. Notwithstanding, either party may assign this Agreement without consent upon the sale of all or substantially all its assets, merger or reorganization.
3. Notices. Any notices required to be submitted under the terms of this Agreement may be submitted to the notice email set forth on page 1 or via first class mail, postage prepaid express courier or by other means, at the address which appears on page 1 of this Agreement and shall be effective upon actual receipt.
4. Governing Law. This Agreement shall be governed in accordance with the laws of the state of Florida without regard to the choice or conflicts of law provisions of any jurisdiction. Each Party irrevocably agrees that any legal action or proceeding relating to this Agreement shall be exclusively brought in a court of competent jurisdiction in Palm Beach County Florida. In the event of a dispute under the Agreement, the prevailing party shall be reimbursed by the other party for all reasonable attorney fees and court costs.
5. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but which together shall constitute one in the same document. Electronic signature and delivery by facsimile of an executed copy of this Agreement shall be deemed effective delivery and enforceable as if it were an original.
6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Springbig as a result of this Agreement or use of the Service.
7. Non-Waiver. There are no third-party beneficiaries to this Agreement. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing.
8. Force Majeure. Springbig will not be liable to Customer for any failure to perform or delay in performance required under this Agreement due to acts of laws, including governmental bodies acting pursuant to law, acts of God, acts of the public enemy, wars, insurrections, riots, lightning, fires, floods, public health crises, civic disturbances, explosions, breakage or accidents to machinery, or any other cause not reasonably within the control of Springbig (each a “Force Majeure Event”). Springbig will use its commercially reasonable efforts to remove the Force Majeure Event as quickly as possible. If Springbig is unable, wholly or in part, by reason of the Force Majeure Event to carry out its obligations under this Agreement, Springbig will give written notice to Customer as soon as reasonably practicable and the obligations of Springbig and Customer, so far as such obligations are affected by such Force Majeure Event, will be suspended during the continuation of any inability on the part of Springbig to perform.