TERMS OF SERVICE
PLEASE REVIEW THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BY AND BETWEEN SOUND COMMERCE TECHNOLOGIES, INC. (“SOUNDCOMMERCE”) AND THE “CUSTOMER” UNDER WHICH AN ACCOUNT TO USE THE SERVICE (AS DEFINED BELOW) IS REGISTERED OR THAT IS NAMED IN THE ORDER FORM PURSUANT TO WHICH A SUBSCRIPTION TO USE THE SERVICE IS ORDERED, AS THE CASE MAY BE (THE “ORDER FORM,” COLLECTIVELY WITH THESE TERMS AND THE POLICIES (AS DEFINED BELOW), THE “AGREEMENT”); AND GOVERN CUSTOMER’S ACCESS TO AND USE OF SOUNDCOMMERCE’S PLATFORM, TOOLS, APPLICATIONS, DATA, SOFTWARE, AND SERVICE. BY ACCEPTING THE AGREEMENT, AND ACCESSING AND USING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, CUSTOMER WILL NOT BE ALLOWED TO ACCESS OR USE THE SERVICE. IN ORDER TO ACCESS AND USE THE SERVICE CUSTOMER AND ITS END USERS MUST BE AT LEAST EIGHTEEN (18) YEARS OLD. THE AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER ACCEPTS THESE TERMS ONLINE OR AS OF THE DATE SET FORTH IN THE ORDER FORM, AS THE CASE MAY BE (THE “EFFECTIVE DATE”).
1. ACCESS TO THE SERVICE; RESTRICTIONS.
1.1 Service Use; Professional Services. Subject to the terms and conditions of the Agreement, SoundCommerce hereby grants to Customer non-exclusive, non-transferable rights to access and use SoundCommerce’s standard software as a service offering with the scope and features selected by Customer in any Order Form(s) during the Term (as defined below) (including all modifications, updates and enhancements thereto, the “Service”). The Agreement is an agreement for services and Customer is not granted any license hereunder. Customer shall comply with all usage documentation, functionality and instructions accompanying or made available by SoundCommerce in connection with the Service and with all restrictions and limitations applicable to Customer’s access to and use of third party products and services used in connection with the Service. Customer shall have the right to permit Authorized Users (as defined herein) to access and use the Service on Customer’s behalf provided that Customer shall ensure that such access and use complies with all terms and conditions applicable to Customer’s use of the Service hereunder and applicable law, including the user limitations set forth in any Order Form. Customer’s agreement to enter into this Agreement is neither contingent on the delivery of any future functionality or features or on the delivery of any other services, nor is it dependent on any oral or written public comments made by or on behalf of SoundCommerce regarding future functionality or features. In addition to the Service, Customer may purchase certain professional services (the “Professional Services”) pursuant to the terms and conditions set forth in an Order Form. The Professional Services are provided by SoundCommerce separate and distinct from the Service, are purchased separate and distinct from the Service, and are not required for Customer’s use or enjoyment of the Service. “Authorized Users” shall mean any employee, contractor, vendor, and/or other third party who is authorized by Customer to access the Service on Customer’s behalf and who does not compete with SoundCommerce.
1.2 Restrictions. Customer agrees that it and its Authorized Users will not: (a) reproduce, modify, distribute, transfer, disclose, or make available to any third party any portion of the Service (or any related user manuals or documentation) in any form; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (c) publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (d) access or use the Service, or permit others to access or use the Service, for any purpose other than Customer’s internal business purposes, including, but not limited to, accessing or using the Service to build a competitive product or service, or to perform or publish any performance, or benchmark test or analysis relating to the Service; (e) interfere with or modify the form and manner of the Service, or the tools incorporated by SoundCommerce or any third party into or with the Service; (f) take any action that imposes an unreasonable or disproportionately large load on the Service, or interferes with the proper functioning of the Service; (g) circumvent any technological measure or Policies implemented by SoundCommerce to restrict or regulate the manner in which the Service may be used (in accordance with the Agreement); or (h) disrupt the integrity or performance of the Service or third-party tools directly or indirectly contained, integrated or linked therein.
1.3 Customer Materials
1.3.1 Customer acknowledges that SoundCommerce and the Service will interact with, access and use information and data provided by or on behalf of Customer or otherwise made available to SoundCommerce pursuant to this Agreement (“Customer Data”) and Customer and third party applications and other systems and facilities, APIs, interfaces, tools and information, provided or made available, directly or indirectly, by Customer or accessed by SoundCommerce at Customer’s request or on Customer’s behalf (including Customer Data, the “Customer Materials”). SoundCommerce will not be responsible or liable for any failure to provide the Service to the extent arising from Customer’s: (a) failure to provide access to such Customer Materials as SoundCommerce reasonably deems necessary to enable Customer to access and use the Service; or (b) breach of any third party terms or conditions associated therewith. When referenced in this Agreement or in any Order Form, the terms “Customer Data” and “Customer Materials” shall incorporate the qualifications and requirements set forth in Section 1.3.3.
1.3.2 Customer hereby grants SoundCommerce a limited, worldwide, sublicensable (to the extent necessary to provide the Service), royalty-free, fully paid-up license to access, link to, store, reproduce, reformat, transmit, provide access to, distribute, use, display, reproduce, and transmit the Customer Materials solely for the purpose of providing the Service during the Term. In addition, Customer hereby grants SoundCommerce a perpetual, non-exclusive, worldwide, sub-licensable, royalty-free, fully paid-up license to access, link to, store, reproduce, reformat, transmit, provide access to, distribute, use, display, reproduce, transmit, generate, and exploit Aggregate Data (as defined herein) for any and all lawful purposes. “Aggregate Data” means data arising from or in connection with SoundCommerce’s provision of the Service or other responsibilities hereunder and which aggregates Customer Data with other data but does not identify or reference Customer, customers of Customer or Authorized Users.
1.3.3 Customer shall be exclusively responsible for, and SoundCommerce shall have no liability with respect to: (a) the Customer Materials, including, but not limited to, their accuracy, quality, integrity, legality, reliability, scalability, data throughput, completeness and appropriateness, and any problems or other issues arising therefrom; (b) the validity and legality of Customer Data for ingestion by the Service; (c) exports from Customer and third party data sources; (d) the design, development, testing, and deployment of Customer Data queries, orchestrations, dashboards, reports, and visualizations that consume SoundCommerce output, selected or implemented by Customer (or implemented by SoundCommerce at Customer’s direction); (e) Customer’s failure to update or otherwise maintain access to the latest version of the Service after its being made available to Customer; (f) Customer’s use of, failure to use or improper use of information resulting from or in connection with the Service, including but not limited to the impact of such use on Customer’s business; (g) the deletion and removal of any portion of Customer Data that constitutes personal information and notification to SoundCommerce of any corresponding applicable requirement; and (h) the security of all passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures used or usable in connection with Customer’s access of the Service and its systems. Customer acknowledges and agrees the Service is not intended to replace the professional knowledge and judgment of any of Customer’s employees, personnel, or advisors.
2. RETAINED RIGHTS; OWNERSHIP.
2.1 Rights in Customer Materials. Except for the limited license granted in Section 1, as between Customer and SoundCommerce, Customer retains all right, title and interest in and to the Customer Materials. Customer warrants that: (a) it has all rights and has obtained all consents necessary to provide, and grant SoundCommerce and the Service the right to control, process, access and use, the Customer Materials in accordance with this Agreement (including but not limited to personal data related to Customer’s customers and other end users); (b) SoundCommerce’s use of the Customer Materials will not violate or infringe any applicable law or third party rights (including, but not limited to, applicable data privacy and security laws and regulations); and (c) the Customer Materials will not contain any viruses, worms or other malicious computer programming codes.
2.2 Rights in SoundCommerce Materials. Except for the limited rights to access and use the Service granted in Section 1, SoundCommerce retains all right, title and interest in and to the Service, all features, configurations, developments, ideas, inventions, research, development, processes, models, mappings, templates, business practices, documentation and other intellectual property directly or indirectly related to the Service and/or to any Professional Services SoundCommerce provides to Customer in connection with this Agreement, and to Aggregate Data (individually and collectively, the “SoundCommerce Materials”). Customer acknowledges that, except as expressly set forth herein, no right, title or interest in or to the SoundCommerce Materials is granted or otherwise transferred to Customer, whether by implication, estoppel or otherwise. Customer acknowledges and agrees that nothing in this Agreement shall limit SoundCommerce’s right to provide the Service to third parties, including, but not limited to, any third parties that may have use cases, customizations, configurations, or other uses or applications similar to, or identical to, those of the Customer.
3. TERM; TERMINATION.
3.1 Term. This Agreement shall commence on the Effective Date and unless earlier terminated in accordance with this Section 3, continue until expiration or termination of all Order Forms entered into between the parties (the “Term”).
3.2 Termination. Notwithstanding the foregoing, a party may terminate this Agreement and all outstanding Order Forms: (a) if the other party material breaches this Agreement, or any of such party’s representations or warranties set forth herein, which breach is not cured within thirty (30) days of receiving notice of such breach; or (b) in the event of: (i) the other party’s filing of a voluntary petition for bankruptcy; (ii) an involuntary petition of bankruptcy is filed against such other party and is not discharged within sixty (60) days of its filing; (iii) such other party’s assignment of assets for the benefit of creditors; or (iv) the appointment of a receiver over a majority of such other party’s assets.
3.3 Survival. Upon expiration or termination of this Agreement: (a) except to the extent necessary for SoundCommerce to carry out its obligations under Section 4, each party shall immediately return or destroy all Confidential Information (as defined below) of the other party; (b) upon request, each party shall provide written certification that the foregoing obligations have been completed; and (c) Customer will immediately cease use of the Service. Sections 1.2, 1.3, 2, 3.3, 4, 6.2, and 7-9 shall survive expiration and termination of this Agreement. Notwithstanding anything otherwise set forth herein, SoundCommerce shall have no obligation after termination or expiration of this Agreement to modify, update, refresh, maintain, destroy, or return any Customer Data.
4. CONFIDENTIALITY.
4.1 Each party (“Receiving Party”) acknowledges that it may receive from the other (“Disclosing Party”) confidential or proprietary information relating to the Disclosing Party, including but not limited to technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary based on the nature of the information disclosed and the circumstances surrounding disclosure (“Confidential Information”). The terms of this Agreement, details related to the Service, the SoundCommerce Materials, Aggregate Data and all Service documentation, technical and business information relating thereto and Feedback shall be Confidential Information of SoundCommerce. Customer Materials shall be Confidential Information of Customer. “Feedback” shall mean any input provided by Customer regarding the use, operation and functionality of the Service, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features.
4.2 Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or (c) is independently developed by the Receiving Party, its employees or third party contractors without use of or reference to the Disclosing Party’s Confidential Information.
4.3 The Receiving Party shall: (a) not disclose to third parties or use (except for carrying out its rights and responsibilities under this Agreement) Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; (b) limit disclosure of the Disclosing Party’s Confidential Information to its employees and contractors who have a need to know such information in connection with exercising the Receiving Party’s rights under this Agreement, and (c) take no less than the same measures that it takes with its own Confidential Information, and in any case, no less than reasonable measures, to safeguard the use and disclosure of the Confidential Information of the Disclosing Party. Without limitation of the foregoing, each party shall maintain administrative, physical, and technical safeguards that are no less rigorous than accepted data industry practices in order to prevent the release of any personally identifiable information to unauthorized parties. Each party shall notify the other party promptly upon becoming aware of any unauthorized use or disclosure of the other party’s Confidential Information.
4.4 Either party may disclose Confidential Information to the extent required by law, provided that it gives the Disclosing Party reasonable advance notice of such required disclosure, to the extent not prohibited by law, and upon request, provides reasonable cooperation to the Disclosing Party so that the Disclosing Party has the opportunity to obtain confidential treatment for such Confidential Information.
4.5 Authorized Users personal information will be treated in accordance with SoundCommerce’s privacy policy posted at: https://soundcommerce.com/soundcommerce-privacy-policy / (the “Privacy Policy”).
4.6 Except for the limited license granted herein, each party shall retain all right, title and interest in and to its Confidential Information.
5. DATA PROTECTION.
During the Term, SoundCommerce shall maintain a data security program in accordance with https://soundcommerce.com/soundcommerce-security-policy, as may be amended by SoundCommerce from time to time with written notice to Customer to comply with changes in applicable law or to address material changes in the features or functionality of the Service (the “Security Policy,” together with the Privacy Policy, the “Policies”).
6. SOUNDCOMMERCE WARRANTIES.
6.1 Warranties. SoundCommerce warrants to Customer that: (a) it has the authority to enter into and perform its responsibilities under this Agreement; and (b) it will provide the Service using commercially reasonable care and skill. Without limitation of any right of Customer to defense and indemnification which may arise under Section 7.3 below, Customer’s exclusive remedy for breach of this Section 6.1 shall be to terminate this Agreement and receive a pro-rata refund of the portion of any fees that have been pre-paid by Customer and unapplied for Services not provided as of the date of termination.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE SERVICE IS PROVIDED AS-IS AND AS-AVAILABLE, AND SOUNDCOMMERCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SERVICE AND THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY: (a) IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT; AND (ii) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOUNDCOMMERCE MAKES NO REPRESENTATION OR WARRANTY THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SOUNDCOMMERCE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY, TRUTHFULNESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
6.3 For the sake of clarity and notwithstanding anything set forth herein, Customer acknowledges and agrees that SoundCommerce does not own or control any information, data, communications, messages, texts, files, images, photos, graphics, videos, audio, or other materials posted, present or displayed or published on, or transmitted, distributed or otherwise linked through SoundCommerce’s website and/or the Service by Customer or by a third party (the “Content”). Customer understands and agrees SoundCommerce does not control, is not responsible for, and expressly disclaims all representations and warranties with respect to all liability related to or arising from: (a) any issues arising from or related to third party tools, products, services, applications or other facilities used or accessed directly or indirectly by Customer or by SoundCommerce on Customer’s behalf; (b) any failure of the Service related to: (i) Customer’s misuse or alteration of the Service; or (ii) failure or fluctuation of cloud computing services providers, internet service providers, electrical power, telecommunications facilities, other third party facilities, or the internet not arising from SoundCommerce’s gross negligence or intentional misconduct; or (c) the Content. Unless expressly stated otherwise, SoundCommerce does not verify or endorse any Content and does not guarantee the accuracy, integrity, quality, or appropriateness of any Content. Customer is responsible solely for Customer’s access to, use of, and/or reliance on, the Content, and Customer understands it uses and relies on such Content at its sole risk. Under no circumstances will SoundCommerce be liable in any way for any Content or for any loss or damage of any kind incurred as a result of Customer’s use of any Content. Notwithstanding anything to the contrary set forth herein, SoundCommerce, in its sole discretion, reserves the right to refuse, move, modify or delete any Content for any reason, with or without notice to Customer. Customer further acknowledges SoundCommerce does not control the transfer of data over communications facilities, including the internet, and that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Accordingly, SoundCommerce will not be responsible for any delays, delivery failures, or other damage resulting from such problems or any issue outside of SoundCommerce’s reasonable control.
7. LIMITATION OF LIABILITY; INDEMNIFICATION.
7.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN TORT OR CONTRACT, UNDER STATUTE OR OTHERWISE): (A) FOR ANY INDIRECT, LOST PROFITS, SPECIAL, PUNITIVE, COVER, REMOTE, CONSEQUENTIAL, OR INCIDENTAL DAMAGE (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, THE SERVICES OR DELIVERABLES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; or (B) EXCEPT AS SET FORTH IN SECTION 7.2, TO THE OTHER PARTY OR ANY THIRD PARTIES FOR DAMAGES, LOSSES, OR CLAIMS IN EXCESS OF THE FEES PAID AND PAYABLE UNDER THE TERMS OF ANY OUTSTANDING ORDER FORMS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
7.2 THE LIMITATIONS OF LIABILITY IN SECTION 7.1 DO NOT APPLY TO A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 1.2, 4 OR 7.3 OR TO CUSTOMER’S FULFILLMENT OF ITS PAYMENT OBLIGATIONS UNDER SECTION 8. IN CONNECTION WITH A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 4 AND/OR SECTION 7.3, IN NO EVENT WILL SUCH PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE GREATER OF THE AMOUNT SET FORTH IN SECTION 7.1(B) AND ONE MILLION DOLLARS ($1,000,000).
7.3 Subject to the Indemnification Provisions (as defined herein), each party (in such capacity, the “Indemnifying Party”) shall indemnify and defend the other party, its officers, directors, agents and assigns (individually and collectively, the “Indemnified Party”) from any and all costs, expenses, losses, damages, injunctions, suits, claims, demands, actions, penalties or liabilities of every kind or nature to persons or property (including, but not limited to, defense or settlement costs, reasonable attorneys’ fees) (“Claim(s)”) arising from third party claims against the Indemnified Party caused or allegedly caused by: (a) the Indemnifying Party’s breach of this Agreement, any of its representations or warranties set forth herein, or applicable law; and/or (b) the Indemnifying Party’s use of the Service. For purposes hereof, “Indemnification Provisions” shall mean the following: (i) the Indemnified Party promptly notifies the Indemnifying Party of any Claim for which it is entitled to indemnity hereunder; (ii) the Indemnifying Party shall have primary control over the defense and settlement of the proceeding; (iii) the Indemnified Party makes no admission of liability nor enters into any settlement without the Indemnifying Party’s prior written agreement; and (iv) the Indemnified Party provides such assistance in defense of the proceeding as the Indemnifying Party may reasonably request, at the Indemnifying Party’s expense.
7.4 If use of all or any part of the Service is, or in SoundCommerce’s reasonable opinion is likely to become, the subject of a Claim of infringement of any intellectual property or other right of any third party, then SoundCommerce shall, as Customer’s exclusive remedy, have the right to: (a) procure the continuing right for Customer to use the Service; (b) replace or modify the Service in a functionally equivalent manner so that it no longer infringes; or (c) terminate the applicable Order Form and refund to Customer an amount equal to any fees pre-paid by Customer and unapplied for Services not provided as of the date of termination.
7.5 Notwithstanding anything set forth in this Agreement, SoundCommerce will have no obligation under this Agreement with respect to any Claim based upon: (a) any use of the Service not in accordance with this Agreement or the documentation applicable to it; (b) any use of the Service in combination with systems, services or data not supplied by SoundCommerce (including, but not limited to, systems, services and data supplied by a third party when engaged by SoundCommerce on Customer’s behalf) where the issue would not have occurred but for such combination; (c) any use of any version of the Service other than the most current version made available to Customer after notice from SoundCommerce that Customer must upgrade to such version to avoid an infringement or misappropriation Claim and Customer had a reasonable time in which to implement such upgrade; (d) any Customer or third party data, systems, materials or technology (including, but not limited to, Customer Materials) accessed, retrieved, stored, displayed, incorporated in or otherwise processed by the Service or otherwise made available by Customer to be used by SoundCommerce in connection with the Service; or (e) the negligence, intentional misconduct, breach of this Agreement or violation of law of Customer, its employees, contractors or agents.
8. FEES; PAYMENT.
8.1 Fees; Payment. Customer shall pay all fees referenced in the Order Form, plus all taxes and governmental assessments applicable thereto. Except as may be set forth in the applicable Order Form, all amounts shall be payable in U.S. dollars within thirty (30) days of Customer’s receipt of SoundCommerce’s invoice. SoundCommerce reserves the right, in its sole discretion and without limitation of its other rights and remedies under this Agreement and applicable law, to suspend Customer’s access to the Service for Customer’s failure to pay any fees when due. For clarity, the parties agree that, unless or until SoundCommerce provides notice of termination in accordance with Section 3.2 above, any such suspension shall not be deemed termination of the Agreement.
8.2 Customer AP Contacts. Invoices shall be sent to the following Customer accounts payable contact set forth in an Order Form, or as otherwise provided to SoundCommerce in writing from time to time.
8.3 Expense Reimbursement. Customer will reimburse SoundCommerce within thirty (30) calendar days of Customer’s receipt of SoundCommerce’s written request (including reasonable backup documentation) for all reasonable out-of-pocket expenses (including travel and accommodation expenses) incurred by SoundCommerce in connection with performing its obligations under this Agreement.
8.4 Late Payment. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate allowable by law. Customer shall also reimburse SoundCommerce for any expenses SoundCommerce incurs to collect late payments, including SoundCommerce’s reasonable attorneys’ fees.
9. GENERAL
9.1 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations under this Agreement, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect. Notwithstanding anything set forth herein, SoundCommerce may use third party contractors in connection with carrying out its responsibilities under this Agreement.
9.2 Notices. All notices, consents and approvals under this Agreement must be delivered in writing: (a) by courier; (b) certified or registered mail (postage prepaid and return receipt requested); or (c) by email, provided that notice in accordance with (a) or (b) is also provided, to the other party at the address set forth on the cover page, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
9.3 Governing Law; Venue. The Agreement is governed by the laws of the State of Washington, without regard to its conflicts of laws provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. Any disputes arising out of this Agreement shall be solely and finally settled by arbitration in King County, Washington, in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. An award rendered in connection with an arbitration proceeding pursuant to this Section 9.3 shall be final and binding upon the parties and any judgment upon such award shall be entered and enforced in any court of competent jurisdiction.
9.4 Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.5 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
9.6 Independent Contractors. Customer’s relationship to SoundCommerce is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of SoundCommerce.
9.7 References. SoundCommerce may use Customer’s name and a description of the services, provided to Customer that does not contain Customer’s Confidential Information, in any SoundCommerce reference list, case study, testimonial, or press release regarding SoundCommerce products or services and in any advertising, publicity, or similar material presented to prospective customers.
9.8 Prevailing Terms. Each Order Form shall be governed by the terms and conditions set forth in these Terms; however, in the event of any conflict between these Terms and an Order Form, the provisions of the Order Form (as applicable) shall prevail to the extent expressly set forth therein.
9.9 Equitable Relief. Each of Customer and SoundCommerce acknowledges that damages will be an inadequate remedy if the other violates Sections 1, 2, 4 or 9.16 of this Agreement. Accordingly, and notwithstanding anything to the contrary set forth in Section 9.3, each of them shall have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any such breach, threatened breach, or otherwise to specifically enforce any of the obligations in those sections of this Agreement.
9.10 Compliance with Laws. SoundCommerce and Customer shall comply with all applicable laws and regulations with respect to this Agreement. Neither party shall have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law.
9.11 Entire Agreement; Electronic Signatures. These Terms and any Order Form(s) entered into in connection herewith collectively constitute the entire agreement between the parties regarding the subject matter hereof, and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral. These Terms and the Policies may be modified by SoundCommerce from time to time, which modifications shall become effective once Customer receives notice thereof. Notwithstanding the foregoing, each Order Form may be amended only by a written document signed by both parties expressly referencing this Agreement and the terms being amended. Customer acknowledges and agrees that by clicking “I Agree” or “I Accept” in connection with the Service: (a) Customer agrees to conduct electronically the particular transaction into which it is entering; (b) Customer read, understands and agrees to be bound by the electronic copy of electronic contracts, notices and records to which it is agreeing, including, without limitation, the Agreement; (c) Customer is capable of printing or storing a copy of electronic records of agreements to which it is agreeing including, without limitation, the Agreement; and (d) Customer agrees to receive electronically information about the agreements to which it is agreeing including, without limitation, this Agreement.
9.12 Non-Solicitation. During the term of this Agreement, and for a period of one (1) year thereafter, neither party shall, without the prior written consent of the other party, directly or indirectly solicit any employee or individual independent contractor of the other party to become an employee or individual independent contractor of the former party.
9.13 Legal Expenses. If any proceeding is brought by a party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding shall be entitled to recover, in addition to all other relief arising out of this Agreement, such party’s reasonable attorneys’ and other experts’ fees and expenses.