|Effective Date:||January 1, 2019|
IF YOU USE THE SPRYNG MARKETPLACE, INCLUDING ANY ASSOCIATED MARKETPLACE PRODUCTS AND SERVICES, YOU WILL BE BOUND BY THESE TERMS.
This Agreement both incorporate by reference and is hereby incorporated by reference into the Terms of Service. Capitalized terms not defined in in this document are defined elsewhere in the Terms of Service, or have the meanings given such terms on the Platform.
The Spryng Marketplace (“Marketplace”) is an online marketplace for downloadable add-ons relevant to extending core capabilities provided by the Spryng Platform, as well as for procuring a broad range of professional services (collectively, “Marketplace Products”). This agreement discusses what Spryng does and does not do in making the Spryng Marketplace available to Users, and some of your responsibilities when using the Platform to find or enter into a services engagement with a Spryng Professional Partner as detailed below.
1. GENERAL TERMS
Subject to the Terms of Service, Spryng provides the Marketplace to Users, including hosting and maintaining the Platform on which the Marketplace resides, facilitating the publishing of Products to the Marketplace by Users, administrating the formation of Service Agreements between Users, providing Payment Processing and Escrow Services, and assisting Users in resolving disputes which may arise in connection with those Services.
In the Marketplace, Users can search for, browse, and purchase Marketplace Products. Marketplace Products include software, content, educational materials, services, technology, data and other digital materials included in or made available through a Marketplace Product that you purchase via the Marketplace.
Marketplace Products also include any updates, upgrades and other changes thereto and versions thereof that you later use from the Marketplace. Similarly, Service Agreements entered into between a User and a Spryng Professional Partner are deemed to be Marketplace Products for purposes of this agreement, where the involved Users use the Platform to invoice and pay any amounts owed under the Service Agreement.
2. PUBLISHING PRODUCTS & SERVICES TO THE MARKETPLACE
2.1 TYPES OF MARKETPLACE PRODUCTS
Marketplace Products generally fall into one of the following categories:
(i) “Initiatives” (ii) “Insights” (iii) “Professional Services” and (iv) Subscription Services. Initiatives and Insights typically involve custom designed platform capabilities that can be added to an organization’s Library and re-used in the Platform. Professional Services typically involve some form of one-time service delivery.
2.2 PRODUCT OWNERS
Most of the Marketplace Products are created, provided and licensed to you by third parties, typically other Spryng Users. The owner of any potential Marketplace Product shall be referred to herein as a “Product Owner.” This term shall include Spryng in the case of Marketplace Products that are comprised of Subscription Services.
2.3 PUBLISHING ITEMS TO THE MARKETPLACE
ADD LANGUAGE AROUND NO RIGHT TO MARKETPLACE PUBLICATION. Upon publication of a product to the Marketplace the Product Owner shall also be deemed the “Publisher.”
All Account Types can request publication of Initiatives they wish to make available to others at no cost.
Spryng Professional Partners, however, are the only Marketplace Product Owners allowed to publish the entire range of Marketplace Product Types (except Subscription Services) and to sell Marketplace Products for a fee.
3. USING MARKETPLACE PRODUCTS & SERVICES
After you order a Marketplace Product and pay any corresponding fees, you may use the Marketplace Product within your account on the Platform in which the Marketplace Product is designed to interoperate and / or otherwise engage with the provider to receive delivery of the services associated with your purchase.
3.1 LICENSE TO USE PRODUCTS
In the case of Marketplace Products that extend Platform capabilities, your license to use those products continues to be governed by the Standard End User License Agreement set forth below, and all these Terms of Service (collectively the “EULA”).
In some cases, the Publisher may ask to incorporate an additional set of terms and conditions they define, in which case you will be asked to agree to a separate end user license agreement between you and them (“Publisher EULA”).
With respect to all Marketplace Products, the EULA for a Marketplace Product includes the terms set forth below (the “Standard EULA”) and any additional end user license terms included in or with the Marketplace Product (the “Publisher EULA”). If there is a conflict between the Standard EULA and the Publisher EULA, the Standard EULA will control.
The Publisher has the right to enforce the EULA against you. If you do not want to comply with the EULA for a Marketplace Product, you must not use that Marketplace Product. Spryng is not a party to the Publisher EULA for any Marketplace Product (unless Spryng is the Publisher of that Marketplace Product). The Standard EULA includes the following end user license terms, and if the Marketplace Product does not include a Publisher EULA, these terms will constitute the entire EULA between you and the Publisher:
(i) Unless Spryng is the Publisher of the Marketplace Product, the Publisher is the licensor of the Marketplace Product and Spryng is not a party to the Publisher EULA, if any.
(ii) If the Marketplace Product does not include a Publisher EULA that specifies Marketplace Product license rights, Publisher grants you a limited, worldwide, non-exclusive, non-transferable and non-sublicensable license to download and use the Marketplace Product only within your Spryng account on systems owned, leased or controlled by you.
(iv) You may not modify, reverse engineer, decompile or disassemble the Marketplace Product in whole or in part, or create any derivative works from or sublicense any rights in the Marketplace Product, unless otherwise expressly authorized in writing by Publisher.
(v) The Marketplace Product is protected by copyright and other intellectual property laws and treaties. Unless otherwise expressly stated in the Publisher EULA, Publisher or its licensors own all title, copyright and other intellectual property rights in the Marketplace Product, and the Marketplace Product is licensed to you directly by the Publisher, not sold.
3.2 RELATIONSHIP WITH SPRYNG
Although one of the functions of the Marketplace is to enable Users to find and transact business directly with each other, Spryng does not introduce Spryng Professional Partners to Users, find potential engagements for Spryng Professional Partners, or find Spryng Professional Partners for Users.
Through the Marketplace, however, Spryng Professional Partners may be notified of Users that may be seeking the services they offer, and Users may be notified of Spryng Professional Partners that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any proposed engagement, potential Client or potential Spryng Professional Partners on their own. If Users decide to enter into a Service Agreement, the Service Agreement is directly between the Users, and Spryng is not a party to that Service Agreement. Spryng does provide ancillary services supporting the administration of the Service Agreement, such as processing payments, offering escrow services, and facilitating dispute resolution.
You acknowledge, agree, and understand that Spryng is not a party to the relationship or any dealings between a Client and a Spryng Professional Partner. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Service Agreement (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Agreements, (d) performing professional services, or (e) paying for Service Agreements for Spryng Professional Partner Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Agreement with another User and for verifying any information about another User, including Composite Information (defined below).
Although Spryng establishes a set of qualifications for Users to join its Spryng Professional Partner Program, Spryng does not make any representations about or guarantee the truth or accuracy of any User’s listings or other User Content on the Platform; does not verify any feedback or information provided by Users about each other; and does not vet or otherwise perform background checks on Users. You acknowledge, agree, and understand that Spryng does not, in any way, supervise, direct, control, or evaluate Spryng Professional Partners or their work and is not responsible for any Work Product.
Spryng makes no representations about and does not guarantee, and you agree not to hold Spryng responsible for, the quality, safety, or legality of Spryng Professional Partner Products or Services; the qualifications, background, or identities of Users; the ability of Spryng Professional Partners to deliver professional services; the ability of Clients to pay for professional services; User Content, statements or posts made by Users; or the ability or willingness of a Client to actually complete a transaction.
You also acknowledge, agree, and understand that Spryng Professional Partners are solely responsible for determining, and have the sole right to determine, which work to accept; the time, place, manner, and means of providing any professional services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Spryng, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Spryng will not have any liability or obligations under or related to Service Agreements and/or professional services for any acts or omissions by you or other Users; (iii) Spryng does not, in any way, supervise, direct, or control any Spryng Professional Partner or professional Services; does not impose quality standards or a deadline for completion of any Spryng Professional Partner services; and does not dictate the performance, methods or process Spryng Professional Partners use to perform services; (iv) Spryng Professional Partners are free to determine when and if to perform professional services, including the days worked and time periods of work, and Sprung does not set or have any control over a Spryng Professional Partner’s pricing, work hours, work schedules, or work location, nor is Spryng involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Spryng Professional Partners for work performed; (v) Spryng Professional Partners will be paid at such times and amounts as agreed with a User in a given Service Agreement, and Spryng does not, in any way, provide or guarantee Spryng Professional Partners a regular salary or any minimum, regular payment; (vi) Spryng does not provide Spryng Professional Partners with training or any equipment, labor, tools, or materials related to any Service Agreement; and (vii) Spryng does not provide the premises at which Spryng Professional Partners will perform the work. Spryng Professional Partners are free to use subcontractors or employees to perform professional services and may delegate work to be performed. If a Spryng Professional Partner uses subcontractors or employees, the Spryng Professional Partner further agrees and acknowledges that this paragraph applies to Spryng’s relationship, if any, with the Spryng Professional Partner’s subcontractors and employees as well and the Spryng Professional Partner is solely responsible for their subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Spryng Professional Partner or Spryng Professional Account User, you expressly acknowledge, agree, and understand that: (a) the Spryng Professional Partner is solely responsible for paying its members for work performed on its behalf and that such payments will not be made through the Platform; (b) Spryng is not a party to any agreement between the Spryng Professional Partner and its members, and does not have any liability or obligations under or related to any such agreement, even if the Spryng Professional Partner or its member defaults; (c) neither Spryng Professional Partners nor their members are employees or agents of Spryng, and Spryng does not, in any way, supervise, direct, or control the Spryng Professional Partner or member or services performed by the Spryng Professional Partner or member; (d) Spryng does not, in any way, supervise, direct, or control the Spryng Professional Partner or its members; (e) Spryng does not set Spryng Professional Partner contract terms amongst their members or with Clients, fees, pricing, work hours, work schedules, or location of work; (f) Spryng does not provide Spryng Professional Partners or their members with training or any equipment, labor, tools, or materials needed for any Service Agreement; (g) Spryng does not provide the premises at which the Spryng Professional Partners or their members will perform the work; and (h) Spryng makes no representations as to the reliability, capability, or qualifications of any Spryng Professional Partner or the ability or willingness of any Spryng Professional Partner to make payments to or fulfill any other obligations to its members, and Spryng disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
3.3 EVALUATION OF MARKETPLACE PRODUCTS
Spryng and / or Marketplace Product Owners may offer free evaluation and/or other limited versions of Marketplace Products so you can preview Marketplace Products before you purchase the full version (“Evaluation Marketplace Products”). If the Marketplace Product is only provided for evaluation purposes, your rights are limited to an evaluation license which permits you to use and/or operate the Evaluation Marketplace Product for a limited period of time (“Evaluation Period”), and it may only be accessible by a limited number of temporary users, in each case as determined by Spryng. On the expiry of the Evaluation Period, the Evaluation Marketplace Product will cease to function and you will remove and delete all copies of such Marketplace Product in your possession or control.
3.4 SUPPORT AND MAINTENANCE OF MARKETPLACE PRODUCTS
Any support and maintenance of the Marketplace Products shall be provided by the Publisher and only to the extent described in the EULA. You agree and acknowledge that Spryng has no responsibility for providing such support and maintenance, except when Spryng is the Publisher of such Marketplace Product, in which case such support and maintenance shall be as described the Terms of Service. Failure of Publisher to provide support and maintenance will not entitle you to any refund of fees from Spryng in connection with obtaining the applicable Marketplace Product and/or support and maintenance.
3.5 TAXES AND BENEFITS
Spryng Professional Partners acknowledge and agree that they are solely responsible (a) for all tax liability associated with payments received from their Clients and through Spryng, and that Spryng will not withhold any taxes from payments to Spryng Professional Partners; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Spryng Professional Partners are not covered by or eligible for any insurance from Spryng; (c) for determining whether they are required by applicable law to issue any particular invoices for the their fees and for issuing any invoices so required; (d) for determining whether they are required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to their fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Spryng is required by applicable law to withhold any amount of their fees and for notifying Spryng of any such requirement and indemnifying Spryng for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Spryng, Spryng Professional Partners agree to promptly cooperate with Spryng and provide copies of their tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing the Spryng Professional Partner is engaging in an independent business as represented to Spryng.
3.6 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users respond to and request Spryng to publish on their behalf information on the Platform about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. Such information is based solely on unverified data that Users voluntarily submit to Spryng and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Spryng; Spryng provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the Marketplace, all Users, and the efficiency of the Platform and you specifically request that Spryng post composite or compiled feedback about Users, including yourself, in locations Spryng deems appropriate on the Platform. You acknowledge and agree that feedback results for you, wherever referenced, and other User Content highlighted by Spryng on the Platform or otherwise (“Composite Information”), if any, will include User comments, indicators of User satisfaction, indicators of impact of work performed, and other similar feedback provided exclusively by other Users. You further acknowledge and agree that Spryng will make Composite Information available to other Users, including composite or compiled feedback. Spryng provides its feedback system as a means through which Users can share their experiences with other Users and / or their products and services publicly, and while Spryng may solicit such feedback through the Platform, it does not monitor, influence, contribute to or censor the information provided. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Spryng does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Spryng is not legally responsible for any feedback or comments posted or made available on the Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Spryng reserves the right (but is under no obligation) to remove posted feedback or information that, in Spryng’s sole judgment, violates the Terms of Service or negatively affects our Marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Spryng. You acknowledge and agree that you will notify Spryng of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Spryng may rely on the accuracy of such information.
4. CONTRACTUAL RELATIONSHIP BETWEEN USERS AND SPRYNG PROFESSIONAL PARTNERS.
This Section discusses the relationship you may decide to enter into with another User either directly or through the Marketplace, including Service Agreements between Users, as detailed below.
4.1 SERVICE AGREEMENTS
If a User and Spryng Professional Partner decide to enter into a Service Agreement, the Service Agreement is a contractual relationship directly between those two parties. Client and the Spryng Professional Partner have complete discretion both with regard to whether to enter into a Service Agreement with each other and with regard to the terms of any Service Agreement. You acknowledge, agree, and understand that Spryng is not a party to any Service Agreements, that the formation of a Service Agreement between Users will not, under any circumstance, create an employment or other service relationship between Spryng and any Spryng Professional Partner or a partnership or joint venture between Spryng and any User.
With respect to any Service Agreement, Clients and Spryng Professional Partners may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Spryng’s rights and obligations under the Terms of Service, including this Agreement and any applicable Escrow Instructions.
Any contract terms that may be provided through the Platform are offered as a sample only, and may not be appropriate for all jurisdictions or all contracts. Users are responsible for the ultimate contract terms to which they agree and assuring they are in compliance with any local requirements. Spryng does not assume any responsibility for any consequence of using suggested contract terms, if any. Suggested Service Agreement Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, (c) or constitute advertising or a solicitation of any type. Each situation is highly fact specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Spryng expressly disclaims any and all liability with respect to actions or omissions based on suggested Contract Terms.
4.2 DISPUTES AMONG USERS
For disputes arising between Clients and Spryng Professional Partner, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Agreement. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Spryng will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions.
If Spryng Professional Partner or Client intends to obtain an order from any arbitrator or any court that might direct Spryng or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Spryng or an affiliate, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
4.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in any Service Agreement. If and to the extent that the Users do not articulate any different agreement, then they agree that this section (Confidentiality) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
4.4 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Agreements or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this section only.
5. PAYMENT TERMS AND ESCROW SERVICES
This section outlines agreements to pay Spryng Professional Partner service fees on Service Agreements, and describes how Spryng’s Escrow Services work, what happens if a Client doesn’t pay, and related topics, as detailed below. Additional details and terms are contained within the Payment and Escrow Agreement executed between the parties.
5.1 ESCROW SERVICES
Spryng provides escrow services to Users to deliver, hold, and/or receive payment for a professional services arranged through the Platform, and to pay fees to Spryng (“Escrow Services”). Spryng is a Delaware corporation and a licensed Internet escrow agent that holds California Department of Business Oversight License No. 963 5086. The Escrow Services are intended for business use, and you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
5.1.1 PAYMENT AGREEMENTS AND ESCROW INSTRUCTIONS
Spryng will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. You acknowledge and agree that Spryng acts merely as an escrow agent. Spryng has fully delivered the Escrow Services to you if Spryng provides the Escrow Services described in this Agreement and applicable Escrow Instructions. In its capacity as an escrow agent, Spryng is only obligated to perform those duties expressly described in this Agreement and any applicable Escrow Instructions. If you authorize or instruct Spryng to release or make a payment of funds from an Escrow Account associated with you, Spryng Escrow may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Escrow Instructions. In addition, Spryng may release or pay funds from an Escrow Account as required by applicable law.
5.1.2 ESCROW ACCOUNTS
Spryng will use and release funds deposited in an Escrow Account only in accordance with this Agreement and the applicable Escrow Instructions. Depending on your needs and the applicable Escrow Instructions, Spryng will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Instructions:
(a) Client Escrow Accounts and Project Escrow Accounts. When you enter into a Services Agreement, Spryng will establish and maintain a “Client Escrow Account,” a “Project Escrow Account” or both to receive, hold, and release payments pursuant to the Agreement’s Escrow Instructions for the work that is the subject of that Services Agreement. “Client Escrow Accounts” are broader in scope, and will be used to hold funds for Clients to use to make payments for continuous engagements and to make payments to Spryng for any payment processing and administration fees.
(b) Spryng Professional Partner Escrow Account. After entering into a Service Agreement, or the first time a Spryng Professional Partner uses the Site to receive payment for work it has performed, Spryng will establish and maintain a “Spryng Professional Partner Escrow Account” for the Spryng Professional Partner to receive payments for work, withdraw payments, make payments for Service Fees and to Spryng for other fees, and issue refunds to Clients.
You hereby authorize and instruct Spryng to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each project and other specified purposes in accordance with the Terms of Service and the applicable Escrow Instructions. Client and Spryng Professional Partners may access current information regarding the status of an Escrow Account on the Site.
5.1.3 SPRYNG PROFESSIONAL PARTNER APPOINTMENT OF SPRYNG AND SUBSIDIARIES AS AGENT
If you are a Spryng Professional Partner and you request payment related to a Services Agreement or the release of funds from an Escrow Account, you hereby appoint Spryng and its subsidiaries, as your agent to obtain funds on your behalf and credit them to your Spryng Professional Partner Escrow Account as applicable. Because Spryng is Spryng Professional Partner’s agent, the Spryng Professional Partner must, and hereby does, fully discharge and credit the Spryng Professional Partner’s Client for all payments and releases that Spryng receives on the Spryng Professional Partner’s behalf from or on behalf of such Client.
5.1.4 TITLE TO FUNDS
Spryng and our Affiliates are not banks. Spryng deposits and maintains all Escrow Account funds in one or more separate accounts at financial institutions insured by the Federal Deposit Insurance Corporation and approved to receive, hold, and deliver escrowed funds under any applicable laws and regulations. The escrow accounts are separate from the operating accounts of Spryng and our Affiliates.
Spryng will not voluntarily make funds deposited in the escrow accounts available to its creditors, or the creditors of its Affiliates, in the event of a bankruptcy, or for any other purpose. As provided in United States Bankruptcy Code, § 541(d), Spryng holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited therein. This Agreement is supplementary to the Service Contract and to any other agreement between Client and Spryng Professional Partners concerning the work, as provided in 11 United States Bankruptcy Code, § 365(n).
5.1.5 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held in the escrow accounts that may be applicable to your Escrow Account. Spryng and our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide.
5.1.6 ESCROW AGENT DUTIES
We undertake to perform only such duties as are expressly set forth in this Agreement, the applicable Escrow Instructions, and the other Terms of Service, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service, including this Agreement and the applicable Escrow Instructions.
We will be under no duty to inquire about or investigate any agreement or communication between Client and a Spryng Professional Partner, even if posted to the Site. We have the right to rely upon, and will not be liable for acting or refraining from acting upon, any written notice, instruction, or request furnished to us by Client or Spryng Professional Partner in accordance with this Agreement or the applicable Escrow Instructions, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties.
We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and the applicable Escrow Instructions directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us.
To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any such counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Escrow Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Escrow Account until we are directed otherwise in writing by Client and Spryng Professional Partner or by a final order or judgment of an arbitrator or court of competent jurisdiction.
5.1.7 ESCROW AGENT RIGHT
We have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds held in the Escrow Account with a court of competent jurisdiction, and to resolve any dispute between Client and a Spryng Professional Partner related to the Escrow Account.
Any provision of this Agreement and the applicable Escrow Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Escrow Account with a court of competent jurisdiction. Any corporation or association into which Spryng may be merged or converted or with which Spryng may be consolidated, or any corporation or association to which all or substantially all the escrow business of Spryng may be transferred will succeed to all the rights and obligations of Spryng as escrow holder and escrow agent under this Agreement and the applicable Escrow Instructions without further act to the extent permitted by applicable law.
5.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
Client becomes obligated to fund escrow immediately upon accepting a Service Agreement (or for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone.
Client acknowledges and agrees that failure to decline or dispute an invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Escrow Instructions. When Client authorizes the payment of the Spryng Professional Partner fees for Service Agreement on the Site, Client automatically and irrevocably authorizes and instructs Spryng to charge Client’s Payment Method for the fees.
5.3 DISBURSEMENTS TO SPRYNG PROFESSIONAL PARTNER
Under the relevant Escrow Instructions, Spryng disburses funds that are available and payable to a Spryng Professional Partner upon an agreed payment schedule. A Spryng Professional Partner can request disbursement of available funds by setting up an automatic disbursement schedule. If a Spryng Professional Partner does not request a disbursement, Spryng will automatically disburse available funds no more than 90 days after the funds are earned or funds are released to the Spryng Professional Partner Escrow Account, unless the amount in the Escrow Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is $500.
When the funds in a Spryng Professional Partner Escrow Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of (i) Spryng Professional Partner’s request, or (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold or 180 days after the funds are available in the Spryng Professional Partner Escrow Account.
Spryng Professional Partner fees become available to Spryng Professional Partners following the expiration of the five-day security period after the funds are released. The security period begins after Client accepts and approves work submitted by Spryng Professional Partner.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Site or the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Site, Spryng may refuse to process or may hold the disbursement of the Spryng Professional Partner Fees and take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, Spryng, in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the disbursement of the Spryng Professional Partner Fees or any other amounts and offset amounts owed to us if: (a) we require additional information, such as tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Fees is no longer necessary, Spryng will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Spryng Professional Partner, despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by charging the applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.
If Client is in “default”, meaning the Client fails to pay Spryng Professional Partner fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Spryng), Spryng will be entitled to the remedies described in this section in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Spryng Professional Partner fees when due, (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) Client fails to pay an invoice issued to the Client by Spryng within the time period agreed or, if none, within 30 days, (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Spryng for Spryng Professional Partner fees or such other amount due being reversed to the Client, or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, Spryng may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Agreements, or obtain any additional Spryng Professional Partner Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Spryng upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
Spryng, at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Client or held by Spryng for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
5.5 NO RETURN OF FUNDS
Client acknowledges and agrees that Spryng will charge Client’s designated Payment Method for the Spryng Professional Partner fees incurred as described in the applicable Escrow Instructions and that once Spryng charges or debits the Client’s designated Payment Method for the Fees, the charge or debit is non-refundable, except as otherwise required by applicable law.
Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Spryng may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
5.6 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Payment Methods will be charged by Spryng in most countries.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Spryng; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, Spryng is not liable to any User if Spryng does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Spryng will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.
5.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
The Platform operates in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, Spryng or our Affiliates will charge or debit Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved.
Spryng and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Spryng and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.