1. LEGAL AGREEMENT
Under the terms of and subject to the restrictions in this Agreement, SONAD will provide its advertiser-customer mobile app (the “Product”) to User during the term of this Agreement. User’s rights to use the Product are non-exclusive and non-transferable. User may use the Product only for User’s own benefit, and not for the benefit of any other third party. SONAD may from time to time modify the Product and add, change, or delete features of the Product in its sole discretion. User’s continued use of the Product after any such changes to the Product constitutes User’s acceptance of these changes. SONAD may, in its sole discretion, at any time terminate the Product. SONAD makes no representations or warranties with respect to the quality of any data obtained via its app or any other services provided through the Product. User is strongly advised to periodically backup all electronic advertisement data related to app. User acknowledges and agrees that User is solely responsible for: (a) all use of the Product by User and any other party utilizing User’s data, with or without authorization; (b) maintaining the confidentiality of User’s password; and (c) ensuring that User’s use of the Product complies with all applicable Federal, state, and local privacy and data security rules, regulations and laws. User further acknowledges and agrees that SONAD has no control over and shall not be responsible for any changes by User’s advertisement data including, without limitation, such changes which may affect the Product, and User shall indemnify and hold SONAD harmless with respect to any losses, damages, or claims arising therefrom, pursuant to Section 10 below. Use and performance of the Product are dependent on access to User’s advertisement data.
3. USER’S REPRESENTATIONS AND WARRANTIES
4. SONAD’S REPRESENTATIONS AND WARRANTIES
SONAD represents and warrants to User that SONAD: (i) has the full power and authority to enter into this Agreement; (ii) will not violate any local, state, national or international law or regulation in connection with the provision of the Product; and (iii) will provide the Product in accordance with this Agreement subject to the terms and conditions hereof.
EXCEPT AS PROVIDED FOR ABOVE SONAD, NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SONAD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY REPORTS, ANALYSIS, OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE PRODUCT. THE PRODUCT IS NEITHER DESIGNED NOR INTENDED FOR HIGH-RISK ACTIVITIES. Without limiting the generality of the foregoing, SONAD does not warrant that the Product will operate without interruption or error-free, or that the Product will be totally secure. Under no circumstances will SONAD be held liable for any loss of User’s data, records, or other materials. User acknowledges that SONAD has no control over the functioning of the Internet, User’s electronic mail provider application, or any other third party applications used in connection with the Product, and SONAD makes no representations or warranties of any kind regarding the performance of the Internet or any such third party applications.
5. USER’S COVENANTS
6. INTELLECTUAL PROPERTY
User agrees that SONAD owns all intellectual property rights in and to the Product including but not limited to all software, scripts, programming and comparable materials used therein or related thereto (“Software”), trademarks, trade secrets, look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays, and any other proprietary rights associated therewith. User shall not copy, modify, reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. User further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Product available to any third party for such third party’s benefit. SONAD reserves all rights in the Product not expressly granted to User hereunder. SONAD shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Product any suggestions, ideas, enhancement requests, feedback, or other information provided by User relating to the Product.
7. TECHNICAL SUPPORT PRODUCT
SONAD shall use reasonable efforts to provide maintenance and technical support for the Product but does not guarantee the results thereof or that any and all technical issues will be resolved. Notwithstanding the foregoing, SONAD expressly disclaims any obligation to provide maintenance, technical or other support, updates, upgrades, bug fixes, patches or any similar service and Customer acknowledges that SONAD has no express or implied obligation to do so and are not entering into this Agreement in reliance on any of the foregoing services. SONAD may, from time to time, provide bug fixes for bugs or other; provided, however, in doing so SONAD does not obligate itself to do so in future.
8. TERM AND TERMINATION
This Agreement will be effective as of the date the User first accesses or uses the Product and, unless sooner terminated as herein provided, will continue in perpetuity. SONAD may discontinue providing the Product and terminate this Agreement at any time without notice and in its sole discretion. User may discontinue its use of the Product and terminate this Agreement at any time without notice and its sole discretion. Any such termination shall relieve the parties of all rights, obligations and liabilities to the other except as provided for in the Sections titled “User Covenants”, “Intellectual Property”, “Confidentiality”, “Liability”, “Indemnification” and “Dispute Resolution”, which Sections shall survive the termination of this Agreement.
9. CONFIDENTIALITY AND SECURITY
“Confidential Information” means any information or data that is disclosed by SONAD to User pursuant to this Agreement that is marked as confidential or that SONAD does not generally make available to the public. Confidential Information does not include information that the User can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving User from a third party without breach of any obligation of confidentiality; or (c) was previously known by the User as shown by its written records. User agrees: (a) to hold the SONAD’s Confidential Information in confidence, and to protect the Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the SONAD’s Confidential Information. Without limiting the foregoing, User shall disclose and allow access to the Product only for the purpose of supporting and augmenting User’s use of the Product. Notwithstanding the foregoing, User may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
User, at its expense, shall indemnify, defend and hold SONAD and its officers, directors, owners, employees, and affiliates harmless from and against any and all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to User’s use of the Product including, but not limited to, liability, damages, injuries, losses, costs and expenses arising from any claims relating to User’s breach of any representations, warranties, or covenants in this Agreement.
User acknowledge and agrees that the Product is being provided without fees or expense to User and, therefore, agrees to the exclusion of liability on the part of SONAD provided for in this Section as a reasonable limitation in light of such fact. The exclusion of liability in this Section represents the agreed and bargained for understanding of the parties and the absence of compensation to SONAD for the Product reflects such understanding. SONAD shall have no liability whatsoever (whether in contract, tort, negligence, strict liability in tort, or by statute or under any other theory of law) to User or to any third party concerning performance or non-performance by SONAD, or in any manner related to this Agreement or the Product. In the event the foregoing exclusion of liability is unenforceable under any applicable law, the parties further agree that in no event shall SONAD be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
12. DISPUTE RESOLUTION
The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in New York, NY (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief. This Agreement shall be interpreted, construed, and governed by the laws of the State of New York, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
User shall have no right to assign this Agreement or any of User’s rights or obligations hereunder. SONAD may assign this Agreement and any of its rights hereunder to third parties. Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
14. AMENDMENTS SONAD
reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to its website or through electronic notice to User. User’s continued use of the Product following the posting or notice of such changes constitutes acceptance of those changes. SONAD will use reasonable commercial efforts to provide notice of material changes to User.
© 2016 SONAD Inc., USA