Sparrow Software-as-a-Service Terms and Conditions

Before beginning use of the Software, please read the following Software-as-a-Service Terms and Conditions (the “Terms”) as use of the Software is governed by these Terms. By executing an Order governed by these Terms, the Client represents that they have read these Terms and agree to accept and follow them. The Client may only use the Software if the Client agrees to these Terms.

ARTICLE 1 DEFINITIONS

1.1	For the purposes of these Terms, the terms below shall have the meanings defined below. Additional terms may be defined in the preamble and throughout these Terms.

(a)

“Sparrow” means Sparrow Connected Inc.

(b)

“Client” means the party identified as “Client” or “Customer” on the applicable Order.

(c)

"Order” means an ordering document issued by or on behalf of Sparrow (which may be by its parent company, Fulcrum Management Solutions Ltd. d.b.a. ThoughtExchange).

(d)

“Agreement” means the agreement between Client and Sparrow formed by the applicable Order, these Terms, and any other documents or terms agreed to in writing by Client and Sparrow.

(e)

“Client Content” means any data, information, trademarks, logos, files, images, text or other content that may be provided by the Client or its Permitted Users for use in conjunction with the Software or Services;

(f)

“Intranet Product” means that application, to be installed on Client’s Microsoft O365 Tenant or On-Premise SharePoint environment, which allows Permitted Users to access the Software through Microsoft SharePoint.

(g)

“Mobile App” means that application, to be installed on mobile computing devices (i.e. smartphones and tablets), which allows Permitted Users to access the Software through the internet;

(h)

“MS Teams Product” means that application, to be installed on Client’s Microsoft O365 MS Teams environment, which allows Permitted Users to access the Software through Microsoft Teams.

(i)

“Commencement Date” means the date specified in the applicable Order advising Client when Sparrow will begin making the Software available to Client via the internet as contemplated by these Terms;

(j)

“Permitted Users” means the employees of the Client and its affiliates and such stakeholders of Client who:

(i.)	Client identifies in writing to Sparrow from time to time, to be using the Software; and
(ii.)	such other persons Sparrow determines to be using the Software, in its sole and unfettered discretion;

(k)

“Proprietary Products” has that meaning provided in Article 5.1;

(l)

“Software” means the program referred to as “Sparrow” which is an online program accessed through a mobile device application and web browser and enables organizations to post or direct content to employees or other stakeholders affiliated with that organization;

(m)

“Subscription Plan” means the level of support services to be made available by Sparrow under the applicable Order.

ARTICLE 2 SOFTWARE LICENSE

2.1

Sparrow grants to Client, and Client accepts from Sparrow, a worldwide, non-transferable (except to successors or assigns of Client or Client’s affiliates), non-exclusive, irrevocable (subject to no violation of grant) license and right to access and use the Software and related documentation via the internet only as authorized in these Terms, for its own purpose and operations, during the License Term (as defined below).

ARTICLE 3 ACCESSIBILITY

3.1

Sparrow will make the Software available for Client’s use during the License Term on Client’s computer systems, Microsoft O365 Tenant, Email, SMS, and through the Mobile App, in each case in conformity with such Software’s documentation. Sparrow will provide Client the latest supported version of the Software via the internet from the hosting facility that Sparrow leases from a third-party hosting vendor (the “Hosting Site”) on a full time (24 hours a day and 7 days a week) basis, except for scheduled system back-up or other on-going maintenance as required and scheduled in advance by Sparrow and communicated in writing to Client, subject to interruption or failure of the Hosting Site, telecommunications or digital transmissions and links, internet slowdown or any other failures and/or interruptions in Software access due to causes beyond Sparrow’s reasonable control or foreseeability. Scheduled downtime of the Software will not require downtime of Client’s Microsoft O365 Tenant.

ARTICLE 4 TERM AND TERMINATION

4.1	The License Term shall commence on the commencement date indicated in the applicable Order. The License Term shall continue in full force and effect for the number of years specified in the applicable Order (the “License Term”). The License Term will automatically renew for the same duration at Sparrow’s then current rates, unless Client notifies Sparrow in writing of the Client’s intention not to renew at least sixty (60) days prior to the expiration of the current term.
4.2	Notwithstanding Article 4.1, either the Client or Sparrow may terminate the Agreement as a result of a breach of these Terms. For the purposes of these Terms, a default by Client shall include, : (a) unauthorized use of the Software or Services by Client; and (b) Client allowing users other than the Permitted Users to access or use the Software and a default by Sparrow shall include (a) four (4) or more failures by Sparrow within a thirty (30) day period to meet the Service Level Response Times outlined in Section 6.5 of these Terms; and (b) a period of three (3) consecutive months where Sparrow has failed to meet the Service Level Response Times outlined in Section 6.5 of these Terms one (1) or more times during each month.
4.3	Upon termination of the Agreement or expiry of the License Term, Client will retain ownership of all Client Content hosted on Client’s Microsoft O365 Tenant or Microsoft SharePoint On-Premise environment or Microsoft Teams environment.

ARTICLE 5 PROPRIETARY RIGHTS AND RESTRICTIONS

5.1

Client agrees that the Software (“Proprietary Products”) are proprietary products and services and that all right, title and interest in and to the Proprietary Products, including all associated intellectual property rights (including, but not limited to, patents, trademarks, and trade secrets), are and shall at all times remain the property of Sparrow and its Third Party licensors and is protected by Canadian and other copyright laws and international treaties. Client may not copy or distribute the Proprietary Products, electronically or otherwise, for any purpose. Client hereby grants to Sparrow a non-exclusive, non-transferable and revocable right to use all of the Client Content as necessary solely for the purposes of providing the Proprietary Products to Client and its Permitted Users pursuant to these Terms.

5.2

Client may not use the Proprietary Products for the benefit of any Third Party or provide other access or use of Proprietary Products to a Third Party other than those Third Parties identified in the Licensed Entities Schedule attached hereto (if any), or as approved in writing by Sparrow, in its sole unfettered discretion, from time to time. The Proprietary Products contain trade secrets of Sparrow. Client shall not disclose such trade secrets or decompile, reverse engineer, disassemble, or make any attempt to ascertain, derive or obtain the source code for the Software or otherwise reduce the Software to human-perceivable form.

5.3

Client may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Proprietary Products, or any portions thereof, to any Third Party (except to successors or assigns of Client or Client’s affiliates) and acknowledge that such action will materially damage Sparrow, and Sparrow may at its option, obtain such injunctive relief as may be necessary to protect its proprietary interest, seek damages, or be entitled to terminate the License Term immediately. The Proprietary Products shall not be used for any commercial purpose beyond the functionality driven by the Software. Client hereby agrees, represents, and warrants to Sparrow that Client will not access or use the Mobile App for any purpose that is unlawful or prohibited by these Terms. Client will not use the Proprietary Products to take any actions that:

(a)	infringe on any Third Party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(b)	Use the Intranet Product, MS Teams Product or the Mobile App in a way that could harm the Intranet Product, MS Teams or the Mobile App or impair any other client’s use of the Intranet Product, MS Teams or the Mobile App;
(c)	violate any applicable law, statute, ordinance or regulation (including those regarding export control); or
(d)	Create or build any derivative works from any information, content, software, products or services obtained from or otherwise connected to Sparrow’s Intranet Product, MS Teams Product or the Mobile App.

5.4

Client acknowledges that all proprietary information of Sparrow relating to or in the context of the Proprietary Products (is the trade secret of Sparrow and that any unauthorized modifying, adapting, translating, renting, distributing, assigning, reselling, copying, duplicating, or other reproduction of all or any part of the Proprietary Products will materially damage Sparrow, and that Sparrow is entitled at its option to obtain such injunctive relief as may be necessary to protect its proprietary interest, seek damages, or be entitled to terminate the License Term immediately.

ARTICLE 6 MISCELLANEOUS

6.1

These Terms supersede all prior agreement and understandings, whether oral or written, in connection therewith

6.2

As part of Sparrow’s Privacy Policy (https://www.sparrowconnected.com/privacy), Personal Information is meant to include Employee Information.

6.3

Sparrow may collect usage and other non-identifying or non-private aggregated data to support software usage reporting, software improvement, and generalized, non-specific marketing communications.

6.4

Sparrow will obtain prior written permission from Client prior to the use of any personal information or private information collected by the Software for any purposes outside of the intended use and support of the Software.

6.5

Sparrow will maintain the confidentiality and security of all Client Content, before and after the term of this Agreement.

6.6

Limitation of Liability

(a)

In no event shall Sparrow be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the use of SOFTWARE, whether in contract, tort, or otherwise, even if Client has advised of the possibility of such loss or damages. Client further agrees that the total liability of Sparrow for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of Sparrow, whether in contract, tort or otherwise, shall not exceed an amount equal to the amount actually paid by Client to Sparrow for SOFTWARE during the twelve (12) month period preceding the date the claim arises. Client shall indemnify and hold Sparrow harmless against any claims by third parties, including all costs, expenses and attorneys' fees incurred by Sparrow therein, arising out of or in conjunction with Client's performance under or breach of this Agreement.

6.7

Force Majeure

(a)

If the performance of this Agreement, or any obligation except the making of payments, is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, terrorist act, cyber-attack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference.

6.8

Unless the applicable Order states otherwise: (a) the Agreement shall be governed by, and construed in accordance with the law of the Province of British Columbia, without reference to any conflict-of-laws principles; and (b) the courts of British Columbia will have exclusive jurisdiction over any action or proceeding arising out of, or based upon, the Agreement, and Client and Sparrow waive any objection on the basis that any such court constitutes an inconvenient forum. Any action or proceeding arising out of, or based upon, the Agreement will be conducted only on an individual basis and not in a class, consolidated or representative action. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.

6.9

Sparrow may give notice to Client by email to the individual or individuals listed on the applicable Order, or by mail to Client’s address as set out on the applicable Order. Client may give notice to Sparrow under or regarding the Agreement by email to legal@thoughtexchange.com, with a duplicate copy sent via registered mail to: Sparrow Connected Inc., Suite E, 1990 Columbia Avenue, PO Box 2260, Rossland BC, Canada V0G 1Y0, Attn: Legal Department.

ARTICLE 7 COST & INVOICING DETAILS

7.1	The Software will be provided to Client for the License Term. Client will be invoiced all Fees on the Commencement Date and anniversary each period. Unless otherwise agreed in the Order, payment terms are NET 30.
7.2	Sparrow will review the number of subscribed users on an annual basis; should the total number of users exceed the specified Total Users set out in the applicable Order, the annual subscription cost will increase to support the additional users:

ARTICLE 8 SUBSCRIPTION PLANS

8.1

Base Support

Base Support is included in the annual Sparrow licensing and covers supporting the following components:

Sparrow’s SharePoint components and their proper functioning
Sparrow’s Administration and Analytics Portal
Sparrow’s Android and iOS Applications
Sparrow’s email, email newsletter and SMS components
Product knowledge

The support does not cover support of SharePoint (see Ultimate Support below), therefore issues escalated to Sparrow are expected to have gone through an internal review process to identify the likelihood the issue is Sparrow related.

Base Support includes:

Providing release packages consisting of fixes and/or new features. This is provided up to four times a year. These packages are expected to be installed by Client within 9 months in order to ensure compatibility with the Sparrow cloud and mobile applications.
Providing hotfixes for issues deemed necessary to be immediately fixes. These are to be installed by the Client to ensure proper functionality.
Access to our ticketing system to submit issues that will examined according to the severity code. Below is a table aligning Incident severity codes with descriptions and response times.

8.2

Plus Support

If set out in the applicable Oder, Plus Support includes the features of Base Support and more. For an additional annual cost of $4,500 + off business hour support fees, Sparrow’s Managed Application Services (MAS) will apply the Sparrow upgrades to the Client’s SharePoint on-premises or SharePoint Online environments.

Plus Support includes components listed under the base support, in addition to the following:

Installation of up to 4 Sparrow product upgrades per year
Enhanced incident response times, including 24/7 support for Severity 1 incidents.

This level of support can optionally be paired with Ultimate Support (see below).

8.3

Ultimate Support

If set out in the applicable Oder, Ultimate Support includes the features of Plus support and more. Sparrow offers custom support options to meet the unique needs of ClientS and ensure that they have the right level of support needed. Our Managed Application Services group is able to further enhance the above support options to include managing the SharePoint On-Premises/ SharePoint Online environments/MS Teams + Sparrow. This can include:

Office365 support
- SharePoint Online
- Groups
- Microsoft Teams
- OneDrive
- Skype for Business
- Azure AD
SharePoint Administration Services (on-premises/ online)
SharePoint Patch management (on-premises)
Proactive Monitoring (on-premises/ online)
Enhancements (SharePoint Workflow/Flow, Nintex WorkFlow/Forms, PowerApps, Custom WebParts, etc.)

Pricing is determined based on Client’s specific support requirements and scope.

ARTICLE 9 SERVICE LEVEL AGREEMENTS

9.1

Service Levels Generally

(a)	Service Levels identify aspects of the delivery of Support Services that are viewed as being important to the success of Client’s business and to the relationship with Sparrow, that need to be monitored and reviewed on a regular, ongoing basis.
(b)	The Service Levels are intended to define the level of service to which Sparrow targets its services. Sparrow will strive to implement continuous improvement strategies on an on-going basis.
(c)	Client and Sparrow both recognize that the Service Levels will need to accommodate changing circumstances and expectations. Accordingly, both parties agree that the Service Levels in this schedule will be open to mutually agreeable adjustment, and that future circumstances may give rise to the addition of new Service Levels or the deletion of present Service Levels.

9.2

Service Levels Procedures

(a)

This section establishes a procedure for assessing, measuring and establishing Service Levels for certain Support Services, including, without limitation:

(i)	the definition of Service Levels for defined and supported Support Services which Sparrow is required to meet during the License Term and during any renewal terms;
(ii)	the duties, obligations and responsibilities of Sparrow for meeting the Service Levels and for reporting periodically on the performance of Sparrow in connection therewith;
(iii)	Client’s responsibilities in support of Sparrow’s efforts to meet the Service Levels for defined and supported Support Services; and
(iv)	the specification of certain specific Service Levels as set forth in this Article 6, which describes those specific Service Levels which Sparrow aims to meet during the term of the Agreement.

9.3

Service Level Review

(a)

On an annual basis, or with such other frequency as may be agreed upon by Sparrow and Client in writing. Client may elect to conduct performance reviews of the Service Levels. Such review may include:

(i)	adding to, deleting or changing the Support Services to be measured and the corresponding Service Levels to reflect changes in Client’s operations;
(ii)	improving the existing Service Levels, where warranted, to reflect operational or technical improvements; and
(iii)	adding to, deleting or changing the reports to reflect changes in Client’s operations.

9.4

Missed Service Levels

(a)

If Sparrow fails to meet a Service Level or other level of expected performance, Client may direct Sparrow to develop a specific action plan to remedy any problem by a mutually agreed on deadline between the Parties in order to prevent the recurrence of any such problem which shall not exceed forty-five (45) days.

(b)

Sparrow shall promptly investigate and correct failures to meet the Service Levels including:

(i)	initiating problem investigations to identify root causes of failures related to not achieving the required Service Levels, correct problems and minimize recurrences of missed Service Levels;
(ii)	promptly reporting problems to Client that reasonably could be expected to have a material adverse effect on Client’s operations; and
(iii)	making written recommendations to Client for improvement in procedures related to Service Levels.

(c)

Client agrees to correct and minimize the recurrence of problems for which Client is responsible and which prevent Sparrow from meeting its Service Levels obligations.

(d)

Sparrow will not be held accountable for failure to meet a Service Level to the extent such failure was due to:

(i)	problems resulting from components, including hardware components or parts, (hardware/software/network) for which Client is responsible;
(ii)	changes made to the environment which were not communicated, with reasonable prior notice, to Sparrow;
(iii)	Caused by factors outside Sparrow 's reasonable control
(iv)	That resulted from Client equipment and/or third-party equipment (not within the primary control of Sparrow)
(v)	performance or non-performance by Client’s third-party service providers and suppliers; or
(vi)	circumstances that constitute a “force majeure” as specified in this document;

9.5

Initial Service Level Agreement and Service Levels – Response Times

(a)	Requests for support or problem identification & resolution services may be handled via telephone or email
(b)	Sparrow shall respond to all support calls and requests for error correction or problem identification and resolution within the following periods specified in the following impact table. Note that standard working hours are 8am – 5pm Mountain Standard Time, regular business days (i.e. Canadian holidays excluded):

Severity Code	Description	Response Time
Severity 1 Critical impact to business processes	Primary business service, major application, or mission critical system is critically affected. Client’s resources should be available and willing to work on a 24x7 basis with Sparrow and or application vendor to resolve the case. Characteristics of a Severity 1 case include: ● Business service is not operational ● Production system crashes ● Data integrity at risk ● Production backup and/or recovery operations fail.	Base Support Within 2 business hours during standard working hours Plus Support Within 1 business hour during standard working hours. After hours and holiday support @ $160/hr, minimum 2 hours
Severity 2 High impact to parts of business process	Primary business service, major application, or system is seriously affected, or implementation stopped. No acceptable workaround is available.	Base Support Within 4 business hours during standard working hours Plus Support Within 2 business hours during standard working hours. After hours and holiday support @ $160/hr, minimum 2 hours
Severity 3 Medium impact to parts of business process	Primary business service, major application, or system is moderately impacted, no data has been lost, and the business service, application, or system is still functioning. The case may be temporarily circumvented using an available workaround.	Base Support Within 8 business hours during standard working hours Plus Support Within 4 business hours during standard working hours. After hours and holiday support @ $160/hr, minimum 2 hours
Severity 4 Low impact to parts of business process	Non-critical cases, general questions, enhancement requests, or documentation cases	Base Support Within 24 business hours during standard working hours Plus Support Within 8 business hours during standard working hours. After hours and holiday support @ $160/hr, minimum 2 hours

9.6

Schedule Downtime

(a)	Occasionally, Sparrow needs to perform maintenance to keep the product working as smoothly as possible. If scheduled downtime is necessary, Sparrow will give Client 48 hours advance notice in writing. Scheduled downtime of the Software will not require downtime of Client’s Microsoft O365 Tenant.

9.7

Miscellaneous

(a)	Sparrow shall notify Client of availability of newer versions of the Software and when they are released.
(b)	The Support Services will cover bug fixes, patches, updates and upgrades pertaining to the Software. These fixes, patches, updates, and upgrades will be made available via the relevant application store (e.g. Apple App Store or Microsoft Store).

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