AS MAY BE UPDATED OR AMENDED FROM TIME TO TIME, WHICH IS HEREBY INCORPORATED BY REFERENCE, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF CUSTOMER DOES NOT AGREE TO ALL OF THIS AGREEMENT DO NOT USE OR ACCESS THE SERVICES.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- Services. The Services (as defined below) will be offered pursuant to this Agreement. Subject to Customer’s compliance with this Agreement, Sounder grants Customer a nonexclusive, revocable, limited, nonsublicensable, nontransferable right and license to access and use Sounder’s Audio Insights platform (the “Platform”, and together with Sounder Data (as defined below) (the “Services”) during the term of this Agreement for the internal business purposes of Customer, only as provided herein and only in accordance with Sounder’s applicable official user documentation for the Platform.
- Customer Account. Sounder will provide Customer with access privileges that permit Customer to access and manage its Platform account(s) (collectively, “Customer Account”) and to access and use the Services (subject to the restrictions set forth in this Agreement). To the extent requested by Sounder, Customer will identify an administrative user name and password that will be used to set up its Customer Account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account (including acts or omissions by other persons to whom the Customer has granted access to its Customer Account), and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for Sounder’s Services without permission. Customer must notify Sounder immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account, and of any material changes to the Customer Account. Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer.
- Updates. From time to time, Sounder may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to the terms of this Agreement; provided that, Sounder shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Sounder may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Sounder shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
- Ownership; Feedback. As between the parties, Sounder retains all right, title, and interest in and to the Services (including, without limitation, any Sounder Data), and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Sounder for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. All suggestions, comments, input, information or other feedback provided by Customer to Sounder hereunder (collectively, “Feedback”), will be the property of Sounder and Customer shall and hereby does assign any rights in such Feedback to Sounder. Customer agrees to assist Sounder in obtaining intellectual property protection for such Feedback, as Sounder may reasonably request. Nothing in this Agreement will impair Sounder’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
- Usage Data. For purposes of this Agreement, “Usage Data” shall mean any usage or operational data or other similar information collected by Sounder in connection with the provision of the Services. Sounder shall retain all right, title and interest to Usage Data and Sounder shall expressly have the right to (i) use, copy, access, process, reproduce, perform, display, modify, distribute, transmit, operate, maintain and prepare derivative works of Usage Data for the purposes of providing the Services to Customer and (ii) freely use and make available Usage Data for Sounder’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Sounder’s products and services) on an anonymized, aggregated basis.
- Sounder Data. For the purposes of this Agreement, “Sounder Data” means all data, information, and insights generated from Sounder’s analysis of audio content and which is provided or made available to Customer by Sounder in connection with Customer’s use of the Services. For the avoidance of doubt, Sounder Data expressly includes any Comma-Separated Values (CSV) files made available to or accessible by Customer, and any other output accessible to Customer through or via the Platform. Subject to Customer’s compliance with all the terms of this Agreement, including without limitation the restrictions set forth in Section 8, Sounder hereby grants Customer a non-exclusive, perpetual, non-sublicensable, non-transferable right and license to use, access, analyze and download the Sounder Data in connection with Customer’s use of the Services and in connection with Customer’s business. Notwithstanding anything to the contrary in this Agreement, the Sounder Data and the foregoing license are provided on an “AS IS” basis without any representations or warranties of any kind and Company specifically disclaims all representations, warranties, and conditions, whether express, implied, or statutory, with respect thereto.
- Fees. Customer acknowledges and agrees that certain portions of the Services may be subject to fees, which Sounder shall provide in writing to Customer.
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) download or export Sounder Data in bulk, or otherwise exceed or violate any limitations on downloading or exporting such Sounder Data set forth by Sounder in any accompanying documentation or as communicated by Sounder to Customer; (ii) sell or re-sell any Sounder Data to a third party; (iii) access or use the Services in any manner to build a revenue-generating product, service or other offering; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (v) modify, translate, or create derivative works based on the Services; (vi) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (vii) use the Services for the benefit of a third party; (viii) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (ix) use the Services to build an application or product that is competitive with any Sounder product or service; (x) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (xi) bypass any measures Sounder may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, importing or storing data on the Platform, exporting or downloading Sounder Data and the activity of those that you grant access to your Customer Account. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
- Third Party Services. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Sounder. Sounder is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Sounder does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Termination. This Agreement shall commence on the date that Customer accepts this Agreement or first uses the Services, whichever comes first, and shall continue until terminated by either party at any time. All terms of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations (if applicable), ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Confidentiality. Each party agrees that the business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. Upon the disclosing party’s request, all of the Confidential Information (including any copies) will be returned to the disclosing party, and the receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge and agree that there can be no adequate remedy at law for any breach of such party’s obligations under this Section 11, which breach may result in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat thereof, the non-breaching party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
- Indemnification. Customer shall defend, indemnify, and hold harmless Sounder, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Sounder Indemnitees”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relates to (i) Customer’s use of the Services; (ii) Customer’s violation of this Agreement; (iii) Customer’s violation of any applicable law, rule or regulation; or (iv) Customer’s violation of any other party’s right, including without limitation any right or privacy or intellectual property rights.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING WITHOUT LIMITATION ANY SOUNDER DATA) AND ALL RELATED INFORMATION, RECOMMENDATIONS, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF SOUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, SOUNDER DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SERVICES (INCLUDING WITHOUT LIMITATION ANY SOUNDER DATA) WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, OR THAT DATA WILL NOT BE LOST, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- Limitation of Liability. IN NO EVENT SHALL EITHER SOUNDER, ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR THE GREATER OF (A) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO SOUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER OR (B) ONE-HUNDRED DOLLARS ($100).
- Miscellaneous. This Agreement represents the entire agreement between Customer and Sounder with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Sounder with respect thereto. Sounder reserves the right to amend, modify or change this Agreement at any time and will use commercially reasonable efforts to notify Customer of the same. If Customer uses the Services in any way after such changes are effective, then the Customer will be deemed to have agreed to all of the changes. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail. Notice must be sent to the address for Customer as set forth in the Customer Account; notice for Sounder must be sent to 1153 Bergen Pkwy Ste. 267 Evergreen, CO 80439 or email@example.com. Sounder shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Sounder’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Customer may not assign any of its rights or obligations hereunder without Sounder’s consent. Sounder may freely transfer, assign or delegate this Agreement and its rights and obligations without consent. Any purported transfer or assignment in violation of the foregoing is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.