Last Updated: October 31, 2022
This Free-Trial Agreement (the “Agreement”) sets forth the terms and conditions that govern the acquisition and use of the Free-Trial Services (as defined below) by the Customer (as defined below), and is a contract between Sona Labs LLC, having an address at 182 Howard St., #803, San Francisco, California 94105 (“Sona Labs”), and the Customer. Sona Labs and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
Since you are using the Free-Trial Services on behalf of an entity or organization that you represent: (a) all references to “Customer” are to that entity or organization and (b) you represent and warrant that you are at least 18 years of age or have otherwise reached the age of “majority” where you reside.
This Agreement becomes binding and effective on Customer upon the earliest of: (a) when you access or use the Free-Trial Services, (b) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (c) when you enter into a Free-Trial Order (as defined below) with Sona Labs (the “Effective Date”).
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 17. Sona Labs may modify this Agreement from time to time, subject to the terms in Section 15 below.
1. FREE-TRIAL ORDERS
This Agreement sets forth the terms pursuant to which Customer may access and use the Free-Trial Services in connection with one or more Free-Trial Orders.
Subject to the applicable Free Trial Order and this Agreement, Sona Labs hereby grants to Customer the right to access and use the Free-Trial Services during the Free-Trial Term.
Sona Labs will make the Free-Trial Services available to Customer until the earliest of: (a) the end of the period specified in the applicable Free-Trial Order; (b) the start date of any Paid Order for the applicable Free-Trial Services; (c) termination by Sona Labs, at any time, in its sole discretion; or (d) termination by Customer pursuant to Section 15. Additional terms and conditions may apply to Free-Trial Services and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2. REPRESENTATIONS AND WARRANTIES
Our Services are evolving, and hence we may update them and the Terms from time to time. If we modify the Terms, we’ll let you know either by posting the updated Terms on our Site or through other communications. It’s important that you review the Terms whenever we update them or when you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in the section entitled “Effect of Changes on Arbitration,” you may not use the Services anymore. We may, at our sole discretion, change or discontinue all or any part of the offerings we provide via our Services, at any time and without notice.
3. PERSONAL DATA
“Personal Data” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, including, but not limited to: (a) a first or last name; (b) geolocation information sufficient to identify a street name and name of city or town; (c) an email address or other online contact information, (d) a telephone number; (e) IP address, user ID, or other persistent identifier that can be used to recognize a user over time and across different devices, websites or online services; or (f) any information that otherwise is regarded as personal data or personal information under applicable laws and regulations.
Sona Labs hereby acknowledges and agrees that Customer is and shall remain owner and controller of all Personal Data that Customer may provide to Sona Labs, or otherwise may allow Sona Labs to access, in connection with this Agreement (“Customer Personal Data”). Sona Labs acknowledges and agrees that it shall act solely as a service provider to Customer, with respect to any Customer Personal Data, and that Sona Labs has no independent rights to use Customer Personal Data for any purposes other than making general improvements to the Free-Trial Services and providing the Free-Trial Services to Customer. To the extent that Sona Labs collates datasets about any consumer or consumers in the course of providing the Free-Trial Services to Customer, such consumer datasets will only be informed by, and consist of, information that Customer provides to Sona Labs or otherwise allows Sona Labs to access on Customer’s behalf. In no event shall any Customer Personal Data be shared with other customers of Sona Labs, or utilized for the benefit of other customers, without the express agreement of Customer.
Notwithstanding any of the foregoing provisions of this section, Customer acknowledges and agrees that Sona Labs may retain, use, and disclose Personal Data in order to: (a) comply with applicable laws; (b) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities; (c) cooperate with law enforcement agencies concerning conduct or activity that Customer, Sona Labs, or a third party reasonably believes may violate federal, state, or local law; (d) exercise or defend legal claims; and (e) create aggregated or otherwise de-identified data sets for Sona Labs’ use.
4. CUSTOMER PROPRIETARY MATERIALS
- Acknowledgment. Sona Labs acknowledges that, as between Customer and Sona Labs, Customer owns and retains all right, title, and interest in and to the data, information, content, and other materials that are submitted, posted, collected, transmitted, or otherwise provided by Customer through the Free-Trial Services or to Sona Labs in connection with Customer’s use of the Free-Trial Services, excluding services usage data, aggregated data, de-identified data, and any other information, data models, content, or materials owned or controlled by Sona Labs (“Customer Proprietary Materials”).
- License to Sona Labs. Customer hereby grants Sona Labs a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify the Customer Proprietary Materials during the Free-Trial Term of this Agreement solely for the purpose of hosting, operating, improving, and providing the Free-Trial Services and other related products, services, and technologies.
5. INTELLECTUAL PROPERTY AND LICENSE GRANT
- Sona Labs Intellectual Property. Sona Labs is the sole owner of and will retain ownership of all right, title, and interest in: the Free-Trial Services, the Paid Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Free-Trial Services, documentation, aggregate data related to the Free-Trial Services, all improvements, modifications or enhancements to (or derivative works of) the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing (“Sona Labs IP”).
- License Grant to Customer. Without limiting the foregoing, and subject to the terms and conditions of this Agreement, Sona Labs hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable license to use the Free-Trial Services, during the Free-Trial Term, in accordance with the terms of this Agreement, solely for Customer’s own business purposes, and not for any purpose which competes with Sona Labs’ provision of these Free-Trial Services.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, Sona Labs reserves and, as between the Parties, will solely own, the Sona Labs IP and all rights, title and interest in and to the Sona Labs IP. All Intellectual Property Rights created in any Sona Labs IP will vest solely in Sona Labs upon creation, and to the extent that sole ownership does not originally vest in Sona Labs, such Intellectual Property Rights are hereby automatically and irrevocably assigned by Customer to Sona Labs. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
6. RESTRICTIONS AND LIMITATIONS
Customer will not at any time, and will not permit any person to, directly or indirectly: (a) license, sublicense, sell, resell, mirror, frame, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Free-Trial Services in any way; (b) modify or make derivative works based upon the Free-Trial Services; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Free-Trial Services; (d) access the Free-Trial Services in order to design or build a competitive product or service, (e) use the Free-Trial Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g) use the Free-Trial Services to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the Free-Trial Services or the data contained therein; (i) attempt to gain unauthorized access to the Free-Trial Services or its related systems or networks; (j) impersonate another Sona Labs user or employee or provide false identity information to gain access to or use the Free-Trial Services; (k) release to any third party the results of its evaluation or use of the Free-Trial Services or share such results for any other benchmarking or competitive purposes without the prior written approval of Sona Labs; (l) use the Free-Trial Services in any manner beyond the scope of rights expressly granted in this Agreement; (m) access or search the Free-Trial Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism other than software or features provided by Sona Labs; or (n) use the Free-Trial Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law or regulation.
7. CUSTOMER’S REPORTING OBLIGATIONS
Customer shall notify Sona Labs immediately of any unauthorized use of any password or account or any other known or suspected breach of security related to the Free-Trial Services. Customer shall report to Sona Labs immediately, and use reasonable efforts to stop immediately, any copying, distribution or misuse of the Free-Trial Services or any other related technology, Free-Trial Services or deliverable that becomes known or suspected by the Customer
Subject to this Agreement, Sona Labs may, at its option, make support available to Customer by email.
Each Party to this Agreement (each, a “Recipient”) shall protect and keep confidential all non-public information (“Confidential Information”) disclosed by the other Party (each, a “Disclosing Party”), whether or not it is marked or identified as "Confidential" by the Disclosing Party, and shall not, except as contemplated in this Agreement, use or disclose any such Confidential Information. For the avoidance of doubt, this includes Confidential Information provided to the Recipient prior to the Effective Date of this Agreement. Confidential Information refers to any and all financial, technical, commercial, or other information concerning the business affairs of the Disclosing Party, including, without limitation, contractual terms and conditions, personal information, marketing or distribution data, business methods or plans, computer programs, code, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), and other technical, business, pricing and fee schedules, the Service’s operations, functionality, methodology, results and look and feel, and all pricing terms offered to Customer. The existence and outcome of any dispute between the Parties, should such occur, will be maintained as Confidential Information of both Parties. The terms and conditions of this Agreement, all Free-Trial Orders and Paid Order shall constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
Each Party shall maintain the other’s Confidential Information in strict confidence and shall protect the other Party’s disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination, or publication of the Confidential Information as it uses to protect its own Confidential Information of a similar nature, and in no event shall it use less than a reasonable standard of care in its treatment of the Confidential Information. Each Party shall limit its disclosure of the other Party’s Confidential Information to those employees and consultants who have a need to know such Confidential Information in connection with the use of the Free-Trial Services rendered under this Agreement.
The obligations of confidentiality shall not apply to any information which: (a) was previously known to Recipient; (b) is or becomes publicly available, through no fault of Recipient; (c) is disclosed to Recipient by a third Party having no obligation of confidentiality to Disclosing Party; (d) is independently developed by Recipient; or (e) is required to be disclosed as a matter of law.
The Recipient will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement. Recipient’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the Free-Trial Term of this Agreement and for a period of five (5) years after the termination or expiration of this Agreement.
10 . FEEDBACK
“Feedback” shall mean any suggestions, recommendations, observations (and the like) provided by Customer regarding Sona Labs’ products or services, Free-Trial Services and Paid Services, including requested or suggested changes to Sona Labs’ current or future products or services, the Free-Trial Services and/or the Paid Services. Notwithstanding anything that Customer may note or state in connection with providing Feedback, all Feedback provided by Customer shall not be considered Confidential Information and shall be received and treated by Sona Labs on a non-confidential and unrestricted basis. Customer hereby grants Sona Labs a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Sona Labs’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Free-Trial Services and the Paid Services.
11. TERM, TERMINATION
The term of this Agreement shall commence upon the Effective Date and continue through the last Free-Trial Term to be in effect.
Upon expiration or earlier termination of a Free-Trial Order: (subject to this section, all rights granted to Customer with respect to Free-Trial Services under such Free-Trial Order will terminate effective as of the effective date of termination and (b) subject to this section, Sona Labs will have no obligations to provide Free-Trial Services to Customer after the effective date of the termination.
Upon termination of this Agreement: (i) Customer will no longer access, use, or display the Free-Trial Services in any manner, (ii) each Party to this Agreement will cease any use of the other Party’s trademarks or intellectual property; (iii) the license grants contained in Sections 4.2 and 5.2 shall immediately expire as of the date of termination; (iv) each Party shall return or destroy the Confidential Information received from the other Party if requested by the Disclosing Party and shall certify such return or destruction in writing to the Disclosing Party; and (v) all provisions of this Agreement intended by their nature to survive the termination of the Agreement, shall survive, including without limitation, confidentiality obligations, warranty disclaimers, indemnifications, limitations of liability, and dispute resolution.
12. INDEMNIFICATION OBLIGATIONS
- Customer Indemnification Obligations. Customer will indemnify, hold harmless, and defend Sona Labs against claim, suit, or proceeding brought by a third party (“Claims”) arising from (i) any Customer Proprietary Materials, including, without limitation, (a) any Claim that the Customer Proprietary Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (b) any Claim that the use, provision, transmission, display or storage of Customer Proprietary Materials violates any applicable law, rule or regulation; (ii) any of Customer’s own products or services; (iii) any material misrepresentation by Customer; (iv) Customer’s breach of any material representation, warranty, or obligation by under this Agreement; (v) Customer’s violation of any applicable privacy or data protection law or regulation; or (vi) use of the Free-Trial Services by Customer in a manner that is not in accordance with this Agreement, including, without limitation any breach by Customer of Section 6 of this Agreement (Restrictions and Limitations). In each case, Customer will indemnify and hold harmless Sona Labs against any damages and costs awarded against Sona Labs or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
- Sona Labs Indemnification Obligations. Subject to Section 12.3 (Exclusions), Sona Labs will defend Customer against any Claim alleging that Customer’s use of the Free-Trial Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Sona Labs (including reasonable attorneys’ fees) resulting from such Claim.
- Exclusions. Sona Labs’ indemnification obligations will not apply if the underlying third-party claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Proprietary Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Free-Trial Services that have been provided by Sona Labs; (iv) modifications to the Free-Trial Services by anyone other than Sona Labs; (v) Customer’s combination of the Free-Trial Services with software, data, or materials not provided by Sona Labs; or (vi) Customer’s continued use of a prior version of the Free-Trial Services that has been superseded by a non-infringing version subsequently released by Sona Labs.
- Remedies Related to Infringement. If Sona Labs reasonably believes the Free-Trial Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Sona Labs may, at its sole option and expense, use commercially reasonable efforts to: (i) modify or replace Free-Trial Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use. If Sona Labs determines that neither alternative is commercially practicable, Sona Labs may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Sona Labs will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this section shall constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Free-Trial Services.
- Indemnification Procedure. A Party seeking defense and indemnification (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing of any Claim, provided that failure to give notice will only relieve the Indemnifying Party of liability to the extent the Indemnifying Party has suffered actual prejudice by such failure. The Indemnifying Party will (i) control the defense of any such claim; (ii) reimburse the Indemnified Party for any reasonable legal expenses directly incurred as a result of the Claim, as such expenses are incurred; and (iii) have the right to consent to judgment on, or otherwise settle, an indemnified claim; provided that the Indemnifying Party may not settle any claim without the Indemnified Party's prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products or services. The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
13. DISCLAIMERS, LIMITATION OF LIABILITY
- Disclaimers. Except as expressly set forth in this Agreement, the Free-Trial Services, support (if any) and any other products or Free-Trial Services related thereto are provided “AS IS” and as available. To the maximum extent permitted by applicable law, Sona Labs and its licensors disclaim any and all warranties, written or oral, express or implied, including but not limited to the implied warranties of title, merchantability, and fitness for a particular purpose. Customer hereby acknowledges that the Free-Trial Services are presently in development, testing, or in beta versions and are provided “AS IS” and “as available.” No employee, agent, representative or affiliate of Sona Labs has authority to bind Sona Labs to any oral representations or warranty concerning the Free-Trial Services. Any written representation or warranty not expressly contained in this Agreement is not authorized and is unenforceable.
Without limiting the other provisions of this section, Sona Labs makes no warranty of any kinds that the Free-Trial Services, Documentation, ancillary tools or any other material, or results of the use thereof, will (a) meet Customer’s or any other person’s requirements; (b) operate without interruption; (c) achieve any intended result; (d) be error free or (e) be compatible, work with or continue to work with the Customer’s system. Any changes to the Customer’s system (including their unavailability) or third-party terms during an Order Term do not affect Customer’s obligations under this Agreement.
- Limitation of Liability. To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall Sona Labs (or its licensors, partners, affiliates, agents directors, officers, or employees) be liable to Customer or to any other person for (i) any indirect, special, incidental, or consequential damages of any kind, including damages for lost profits, loss of goodwill, loss of anticipated savings, loss of use or corruption of software, data or information, work stoppage, accuracy of results, or computer failure or malfunction, or (ii) any amount, in the aggregate, in excess of $100 (U.S. Currency). The Parties hereby acknowledge and agree that the limitations of liability in this Limitation of Liability section are an essential part of the basis of the bargain between the Parties and will apply even if the remedies available hereunder are found to fail their essential purpose.
14. DISPUTE RESOLUTION
The Parties hereby agree that any dispute, claim, or controversy arising out of Customer’s use of the Free-Trial Services, or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including any dispute relating to the provisions of this Dispute Resolution section itself (“Disputes”), will first be addressed informally and directly (without recourse to formal legal procedures, lawsuits, etc.) between the Parties in a good faith attempt to reach a mutually agreeable resolution of the issue. If, after thirty (30) days of good faith discussion between the Parties, no mutually agreeable resolution has been reached, the Parties agree that the Dispute shall be resolved through final and binding arbitration by a single arbitrator and not in a class, representative, or consolidated action or proceeding, except as otherwise set forth below in this section. This includes Disputes arising out of or relating to interpretation or applicability of this Dispute Resolution section, including its enforceability, revocability, or validity. This Dispute Resolution section shall survive termination of these Terms.
The American Arbitration Association (“AAA”) will administer the arbitration under its Streamlined Arbitration Rules and Procedures in effect at the time. The arbitration will be held in the county of San Francisco, California. The AAA rules will govern payment of all arbitration fees. Neither Party will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that the claim brought to arbitration is frivolous.
Except as otherwise provided in this section, the arbitrator shall determine all issues of liability on the merits of any claim and may award declaratory or injunctive relief only in favor of the Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim. To the extent that either Party seeks public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The Parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Notwithstanding the mandatory arbitration provisions contained in this section, either Party may (a) assert claims, if they qualify, in a U.S. small claims court; or (b) bring an individual action seeking only injunctive or other equitable relief from a court to prevent or stop unauthorized use or abuse of the Free-Trial Services or infringement or misappropriation of intellectual property without first engaging in arbitration described above. If the arbitration requirements of this section are found not to apply to Customer or Customer’s claim, Customer agrees to the exclusive jurisdiction of the state and federal courts of the Northern District of California and, in such event, Customer hereby consents to the personal jurisdiction and venue therein.
Customer acknowledges and agrees that Customer may only resolve disputes with Sona Labs on an individual basis, and may not bring a claim as a plaintiff or class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If this specific provision (in this paragraph) is found to be unenforceable, the entirety of this “Dispute Resolution” section will be deemed void.
15. CHANGES TO THIS AGREEMENT
Sona Labs may modify this Agreement at any time by posting a revised version on its website (www.sonalabs.com), which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the Free-Trial Services and terminate all Free-Trial Orders and this Agreement upon written notice to Sona Labs. For the avoidance of doubt, any Free-Trial Order is subject to the version of the Agreement in effect at the time of the Free-Trial Order.
16. MISCELLANEOUS PROVISIONS
- Applicable Law. This Agreement is governed by and will be construed under the laws of the State of California, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
- Independent Contractor. Sona Labs and Customer are, and will remain, independent contractors. The Agreement does not constitute a partnership or joint venture relationship. Neither Party is a franchisee, agent, or legal representative of the other for any purpose, and neither Party has the authority to act for, bind, or make commitments on behalf of the other.
- Nonsolicitation of Employees. For the entire term of this Agreement and for one (1) year subsequent to its termination, neither Party nor its affiliates will hire or solicit for hire any employee or consultant of the other Party. Nothing herein shall preclude generalized searches by either Party for employees through the use of advertisements in the media (including on job or message boards) that are not specifically directed at the employees of the other or the hiring of any such persons as a result of any such advertisement.
- No Assignment. This Agreement will be binding upon, and inure to the benefit of, Sona Labs and Customer and their respective legal representatives, successors, and permitted assigns. Unless otherwise agreed to in writing by the parties, neither Party will assign, sublicense or otherwise transfer any of its rights, or delegate any of its duties, hereunder, in whole or in part, except to a person or entity which has acquired or succeeded to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement (whether by sale, merger, operation of law, or otherwise) and which undertakes in writing to fully perform and discharge the assigning Party's obligations and liabilities hereunder.
- Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
- Standard Terms of Customer. No terms, provisions, or conditions of any purchase order, acknowledgment, or other business form that Customer may use in connection with the acquisition or licensing of the Free-Trial Services or ordering of service shall have any effect on the rights, duties, or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of Sona Labs to object to such terms, provisions, or conditions.
- Force Majeure. Neither Party will be liable nor deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Agreement or other interruptions of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, or other causes beyond the reasonable control of the Party affected thereby.
- Publicity. Subject to the provisions of Section 9 (Confidentiality), each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the Term, Sona Labs may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on its website and in its marketing materials to identify Customer as Sona Labs’ customer, and for the purpose of providing the Free-Trial Services to Customer, provided that Sona Labs shall use commercially reasonable efforts to adhere to the usage guidelines, if any, furnished by Customer with respect to Customer’s Marks.
- Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant (physical or electronic) address set forth in the Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this section. Such notices shall deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when received by telegraphic or other electronic means (with no bounceback message received). Either Party may change its address for notices by providing notice to the other Party in accordance with this Section.
- Subcontracting. Sona Labs may use subcontractors and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that the Sona Labs remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. Stripe), Sona Labs shall use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but shall not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that any such losses are caused directly from the gross negligence or willful misconduct of Sona Labs.
- Entire Agreement. This Agreement, together with all Free-Trial Orders and any schedules, amendments, and other attachments, contains a full, complete and exclusive expression of the rights and obligations of the Parties. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Free-Trial Services under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
- Severability. Except as otherwise provided in Section 14 (Dispute Resolution) of this Agreement, if any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Amendments in Writing. Except as otherwise provided in Section 15 hereof, no amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in writing that refers to this Agreement and is executed by authorized representatives of each Party.
- Counterparts. This Agreement and any written Free Trial Orders may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. This Agreement and any written Free Trial Orders may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
- Headings. The headings in this Agreement have been included solely for reference and are to have no force or effect in interpreting the provisions of the Agreement.
- No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the Parties and their respective successors and assigns.
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 17.
“Documentation” means Sona Labs’ standard user documentation for the Free-Trial Services, together with any applicable supplemental documentation for Free-Trial Services.
“Free-Trial Order” means an order for Free-Trial Services pursuant to this Agreement completed and submitted by Customer online at the Sona Labs site and accepted by Sona Labs, including any Customer registration for Free-Trial Services, or executed by Sona Labs and Customer.
“Free-Trial Services” means (a) any Services made available by Sona Labs to Customer free of charge under a Free-Trial Order and (b) any alpha, beta or other pre-commercial releases of a Sona Labs product or service (or feature of functionality of a product or service) made available by Sona Labs to Customer free of charge under a Free-Trial Order.
“Free-Trial Term” means, with respect to each Free-Trial Order, the period from the effective date of the Free-Trial Order through termination pursuant to Section 1.
“Paid Order” means an order for Services submitted by Customer online at the Sona Labs site and accepted by Sona Labs, or executed by Sona Labs and Customer, under which Customer commits to pay for the Services. If Customer enters into a Paid Order, Customer’s access and use of the applicable Services will be subject to a master services agreement, unless Sona Labs and Customer have separately executed a written agreement for the applicable Services, in which case that agreement will govern.
“Paid Services” means the Services to which Customer uses following a Paid Order.
“Services” means access to the Sona Labs advanced attribution and customer data platform and associated tools and services, including but not limited to audit services. Sona Labs may make such changes to the Services as Sona Labs deems appropriate from time to time.