These Terms of Service signed by you (“you” and “your”) and Sonans Dissonance AI, Inc., (“Sonans”, “we”, “us”, or “our”) constitute the “Agreement” and is entered into effective as of such signature date (the “Effective Date”). The Agreement contains the terms and conditions under which we will provide software services to you on a subscription basis, as well as related services such as support, maintenance, onboarding and implementation (the “Services”). It shall control over any different or additional terms of any purchase order or other non-Sonans ordering document, and no terms in any such order or document shall apply to the Services. Sonans and you may be referred to in this Agreement individually as a “Party” and collectively as “Parties.”
Under this Agreement, Sonans will use commercially reasonable efforts to provide Customer a limited license to use the Sonans AI platform (“Software”) so that you may use the Services.
If you decide to purchase specific professional services such as customization, event build, or other consultation services, the terms and conditions of such services will be defined in a separate Professional Services Agreement and Statement of Work.
Sonans will provide you with reasonable technical support services in accordance with Company’s standard practice. These Services may be product support, enhancements, modifications, updates, corrections or a subsequent release or version of the Services we generally make available to our customers under our Product Support Services Level Agreement.
We may use tools, software and utilities (“Tools”) to administer the Services and help resolve your requests. Except as necessary for such functions, the Tools do not collect, report, or store any data received from you (collectively, “Customer Data”) residing in the Services.
Sonans grants you, during the period specified in the Agreement for the Services (the "Term”), a nontransferable, non-exclusive, limited license to use the Services solely for your internal business operations under this Agreement. Sonans exclusively owns all right, title and interest in all information, content, and intellectual property rights related to the Services as our Confidential Information and we reserve any rights not expressly granted. With regard to the Services, you agree to not (a) modify, disassemble, decompile, or reverse engineer any part, including without limitation related software or another customer’s data, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software; (b) copy or reproduce any part, or create derivative works; (c) access or use any other customer’s data; (d) use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) breach any security measure we provide; (f) reduce or impair accessibility; (g) direct anyone to enter cardholder data anywhere except encrypted fields which provide cardholder data security; (h) remove any copyright, trademark, or other proprietary rights notices or labels; or (i) use the Services for any purpose that may (i) harass or cause damage to any person or property; (ii) display content that is false, defamatory, obscene, or offensive; (iii) promote racism or hatred; (iv) constitute unsolicited bulk e-mail, junk mail, or spam; (v) infringe intellectual property, privacy, or other third party rights; or (vi) violate any applicable law. Upon any violation, we may remove or disable access to any prohibited material and/or terminate the license and Services, and you agree to defend and indemnify Sonans for any related claims.
(a) Initial Term and Renewal. The initial Term commences on the Effective Date. Except as otherwise expressly stated in the Quote, (a) automatic renewal for additional Terms of twelve (12) months each shall occur unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Term and (b) any renewal Term is subject to our pricing and terms in effect on the renewal date.
(b) Early Termination by Either Party. Either Party may terminate this Agreement (i) immediately if the other Party ceases doing business in the normal course or becomes the subject of a bankruptcy proceeding or (ii) upon the other Party’s breach that is not cured within thirty (30) days of written notice specifying the breach in detail. If you are the breaching party, Sonans reserves the right to immediately suspend your access and use of the Services during such cure period.
(c) Effect of Termination. Upon any termination of the Agreement, all right to access and use the Services immediately ceases. If you are not in breach of this Agreement, upon receiving your written request within ninety (90) days after termination, we will make available to you a file of your Customer Data then in our possession. We assume no obligation to retain Customer Data more than ninety (90) days following termination and we may in our sole discretion permanently delete it. You agree to promptly delete or return any Sonans information in your possession or control.
Invoices itemize any Services, overages, and taxes or other governmental charges. Unless otherwise agreed in writing, we invoice you at the effective date of the Agreement and about one (1) month before the start of any renewal or subsequent billing period. Payment in full is due within thirty (30) days of the invoice date unless the Parties agree In writing on a different payment term. All fees are irrevocable and nonrefundable due to Sonans' substantial up-front investment of time and resources in implementing the Services. Suspension of Services due to nonpayment does not waive any payment obligation. If an account is sixty (60) days or more past due, (a) any unpaid amounts provided for In the Agreement accelerate and are immediately due and payable (after full payment, restoration of Services for the remainder of the Term may be requested) and (b) we reserve the right to permanently delete any Customer Data.
You agree to notify us if you believe your account with us is no longer secure (such as in the event of a loss, theft or unauthorized disclosure, or use of your ID, password, or any payment information).
You represent, covenant, and warrant that you will use the Services only in compliance with this Agreement, Sonans' standard published policies then in effect, and all applicable laws and regulations. You hereby agree to indemnify and hold harmless Sonans against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of the Services. Although Sonans has no obligation to monitor your use of Services, Sonans may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
You will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You will also be responsible for maintaining the security of Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or Equipment with or without your knowledge or consent.
You agree (a) to provide us assistance, information, and materials reasonably required for the Services (collectively, the “Customer Materials”) and (b) that the Customer Materials are accurate and complete and may be relied upon by us without independent verification. The Services may depend on your completion of certain tasks or adherence to agreed-upon schedules. The schedule for the Services may require adjustments if such tasks or schedules are modified or are not completed as anticipated; we will have no liability or be responsible for such adjustments.
Each Party (the “Receiving Party”) understands that the other Party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to Disclosing Party’s business (hereinafter referred to as “Proprietary Information” ). Proprietary Information of Sonans includes without limitation non-public information regarding features, functionality and performance of Software, the Services, and our business. Receiving Party agrees to take reasonable precautions to protect such Proprietary Information with methods that are at least as stringent as those used to protect Is own similar Information and at least reasonable care, and not to use (except for the purposes described in this Agreement) or divulge to any third person any such Proprietary Information. Notwithstanding the foregoing, if Sonans is the Receiving Party, you agree that we may disclose your Proprietary Information to our third party providers to the extent necessary to provide the Services, provided that we have a non-disclosure agreement in place with them that is no less protective than this Agreement.Disclosing Party agrees that the foregoing will not apply with respect to any information after three (3) years following the disclosure thereof or any information that Receiving Party can document:
(a) is or becomes generally available to the public;
(b) was in its possession or known by its prior to receipt from Disclosing Party;
(c) was rightfully disclosed to it without restriction by a third party;
(d) was independently developed without use of any Proprietary Information of Disclosing Party; or
(e) is required to be disclosed by law; provided, however, that the Receiving Party shall provide prompt prior written notice to the Disclosing Party to enable the Disclosing Party to seek a protective order or prevent or limit such disclosure.
You will retain ownership of all right, title and interest in and to Customer Data, as well as any data that is based on or derived from Customer Data and provided to you as part of the Services. You hereby grant Sonans a worldwide, non-exclusive, fully paid-up license to display, modify, and otherwise use the Customer Data solely to enable you to use the Services. Sonans will protect any Customer Data as your Proprietary Information. It is your sole obligation to (a) inform third parties of the use, processing or transfer of Customer Data; (b) ensure that such third parties have given their consent as required by all applicable data protection laws; and (c) ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and the copyright and other intellectual property rights of all Customer Data. Sonans' practices concerning the privacy of Customer Data is in our Privacy Policy incorporated herein by reference at https://sonans.ai/privacy. We use various technologies and practices to protect payment information, which are reviewed and updated on an ongoing basis. We will defend and indemnify you from any claims and liabilities resulting from an unauthorized disclosure of personal information (a person’s name, telephone number, physical address, e-mail address, payment information or method, or password) solely caused by our negligence or misconduct.
Sonans will own and retain all right, title and interest in and to:
(a) Software, all improvements, enhancements or modifications thereto;
(b) any software, applications, inventions, or other technology, know-how, or information developed in connection with the Software or the Services; and
(c) all intellectual property rights related to any of the foregoing.
Sonans warrants that (a) the Software and Services (a) conform to our online specifications under normal use and (b) Sonans will use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions in functioning of Software. You agree to notify Sonans in writing within thirty (30) days after performance of particular Services of any warranty deficiencies in sufficient detail so we may investigate. For a breach of this express warranty, we will re-perform the deficient Services, and if we are unable to re-perform them as warranted, you are entitled to recover the portion of fees paid for such deficient Services as your exclusive remedy and our sole liability.
Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sonans or by third-party providers, or because of other causes beyond Sonans' reasonable control, but Sonans will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Sonans does not warrant that functioning of software will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Software.
EXCEPT FOR THE EXPRESS WARRANTY ABOVE, ALL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT, AND THE RESULTS OBTAINED THEREBY. YOU ACKNOWLEDGE SONANS DOES NOT CONTROL OR HAVE RESPONSIBILITY FOR TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES SUCH AS THE INTERNET AND THAT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER FACTORS INHERENT IN USING SUCH FACILITIES.
NEITHER PARTY IS LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, (EXCLUDING FEES UNDER THIS AGREEMENT), OR ECONOMIC ADVANTAGE RELATED TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF THE PARTY FROM WHICH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNLESS A CLAIM IS BASED ON GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SONANS EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU TO SONANS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATION OF OUR LIABILITY IN THE PRIOR SENTENCE DOES NOT APPLY TO SONANS' INDEMNITY OBLIGATIONS IN SECTION [TBD] BELOW. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above exclusions may not apply to you.
(a) Indemnification. One Party (the “Provider”) may provide the other (the “Recipient”) information, designs, specifications, instructions, software, data, content, or other material (collectively, “Material”). If a third party claims that any Material infringes its intellectual property rights, as the Parties’ exclusive remedy for any infringement claims or damages, the Provider will indemnify the Recipient against the claim, subject to the Recipient (a) notifying the Provider promptly in writing not later than thirty (30) days after the Recipient receives notice of the claim, or sooner if required by applicable law; (b) giving the Provider sole control of the defense and any settlement negotiations; and (c) giving the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
(b) If Sonans Is the Provider. If we believe or it is determined that any Material may have violated a third party’s intellectual property rights, we may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or, if these alternatives are not commercially reasonable, we may terminate the license under Section [TBD] above, and require return of, the applicable Material and refund the pro-rata portion of any unearned, prepaid fees you have paid applicable to the terminated license or Services.
(c) If You are the Provider. If the return of your Material materially affects our ability to meet our obligations under the Agreement, we may in our sole discretion, and upon thirty (30) days’ prior written notice to you, terminate the Agreement.
(d) Exclusions. The Provider will not indemnify the Recipient (i) if the Recipient (x) alters the Material, (y) uses it outside the scope of use identified in the Provider’s user documentation, or (z) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of such Material or (ii) to the extent an infringement claim is based upon any Material not furnished by the Provider or upon the combination of any Material with any products or services not furnished by the Provider.
You and Sonans are independent contractors in all matters relating to this Agreement, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between you and Sonans.
Neither Party is responsible for failure or delay of performance if caused by an act of God, terrorism, telecommunication outage not caused by the obligated Party, or other event outside the reasonable control of the obligated Party that makes its performance impossible or impracticable. Each Party will use all reasonable efforts to mitigate the effect. If such delay or failure continues for more than ninety (90) days, either Party may cancel the unperformed obligation upon written notice. This does not excuse a Party’s duty to follow its normal disaster recovery procedures or your obligation to pay for the Services.
Sonans may list you as a customer and your logo on our website.
This Agreement is governed by the laws of the State of California, without giving effect to principles of conflicts of law, with exclusive jurisdiction in the state courts of Santa Clara County, California and federal courts of the Northern District of California. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods are expressly excluded.
(a) This Agreement and information incorporated by written reference, such as in a URL or referenced policy (which may be revised from time to time in Sonans' sole discretion) constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements, communications, and negotiations between the Parties regarding the same subject matter.
(b) This Agreement can be modified only by a written amendment signed by the Parties.
(c) Failure to enforce any provisions of this Agreement will not constitute a waiver; any waiver must be made in writing.
(d) If any provision If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable, such provision shall be construed to reflect the Parties' intentions, with all other provisions remaining in full effect.
(e) Parties may execute this Agreement by electronic signatures or by facsimile in counterparts, which taken together will constitute one instrument.
(f) Neither Party may assign or transfer this Agreement without the prior written consent of the other Party.
(g) Any notice under this Agreement must be in writing and delivered personally or by overnight courier or sent by email.
(g) The section headings of this Agreement are for convenience only and have no value for interpretation of the Agreement.
The following provisions survive termination or expiration of this Agreement: 11 (Confidentiality. Proprietary rights), 15 (Limitations of liabilities), 16 (Governing law) and 21 (General provisions).