USER LICENSE AGREEMENT
This User License Agreement (the “Agreement“) is made as of the today’s date (the “Effective Date”) between you (the “Customer“) and Hoggard Technology, LLC, a Mississippi limited liability company (the “Company“) for the use of Sonido Software.
THE COMPANY PROVIDES THE SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM.
BY CLICKING THE “ACCEPT” BUTTON, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE COMPANY WILL NOT AND DOES NOT LICENSE THE SERVICE TO CUSTOMER AND YOU MUST NOT ACCESSS THE SERVICE.
1. Definitions.
1.1. “Administrator” shall mean a Subscriber with authority to designate additional Authorized Users and/or Administrators and commit the Subscriber to additional services from the Company.
1.2. “Authorized User” shall mean a Subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.
1.3. “Confidential Information” shall mean the Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
1.4. “Content” shall mean any information the Customer uploads or post to the Service and any information provided by the Customer to the Company in connection with the Service, including, without limitation, information about Authorized Users or customers.
1.5. “Originating Subscriber” shall mean the Subscriber who initiated the Services offered by the Company and is assumed by the Company to have the sole authority to administer the subscription.
1.6. “Service” shall mean any software or services provided by the Company, including but not limited to Sonido.
1.7. “Subscriber” shall refer to the purchaser of the Services provided by the Company and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on Customer’s behalf.
2. License and Use of Services.
2.1. During the term of this Agreement and subject to the terms and conditions of this Agreement, the Company hereby grants to Subscriber a non-exclusive, nontransferable, non-licensable limited right and license to use the Service. All rights not expressly granted to Subscriber in this Agreement are reserved to the Company.
2.2. Authorized Users shall not, directly, indirectly, alone, or with another party, (i) avoid, bypass, remove, deactivate, alter or impair a security measure of the Service; (ii) make any alterations to the Service; (iii) transfer or otherwise grant any rights in the Service to any other party, or (iv) otherwise attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as otherwise expressly permitted in this Agreement.
2.3. Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service without the express written permission from the Company.
2.4. Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, the Company, or any other software or service provided by the Company.
2.5. Authorized Users agree that they will not knowingly use the Service in any manner which may infringe upon the copyright or intellectual property rights of others or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.6. Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.7. Except for the non-exclusive license granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with the Company.
2.8. Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). It is the responsibility of the Authorized User to determine if the Service being shared is appropriate. The Company reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.9. The Company reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that the Company shall provide Subscriber with thirty (30) days’ notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
2.10. The Company reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two (2) business days’ notice prior to any such suspension. Such notice shall be provided to the Customer in advance through by way of notification within the Service, email or other notification method deemed appropriate by the Company. Further, the Company shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, the Company will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.11. Subscriber grants to the Company a non-exclusive, royalty-free right during Subscriber’s use of the Service, to use the Customer Confidential Information for the sole purpose of performing the Company’s obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for the Company to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with this Agreement.
3. Access to the Service.
3.1. Subscriber is only permitted to access and use the Service if he/she is an Authorized User. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
3.2. Each Authorized User will be provided with a unique identifier to access and use the Service, a username. The username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.3. The initial Administrator shall be the Originating Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active username if the Administrator wishes to terminate access to the Service for any Authorized User.
3.4. Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
3.5. As between the Company and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon cancellation or termination of Service as set forth herein, the Subscriber shall be solely responsible for the exporting of any Content and the Company shall have no responsibility or liability with respect to any Content not exported by Subscriber prior to cancellation or termination of this Agreement.
3.6. All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
3.7. Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
3.7.1. Any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by this Agreement;
3.7.2. The Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
3.7.3. Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. The Company, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
3.7.4. The Company reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.
4. Confidentiality.
4.1. Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.2. The Company and any third-party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (i) as required to perform their obligations under this Agreement; or (ii) Confidential Information that is required by law, regulation or rules of a governmental body, court to be disclosed.
5. Security and Access.
5.1. The Company is responsible for providing a secure method of authentication and accessing the Service. The Company will provide mechanisms that: allow for user password management, transmit passwords in a secure format, and protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.2. Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.3. Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords and will promptly notify the Company upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.4. At all times, the Company, and any third party vendors and hosting partners it utilizes to provide the Service, will: (i) use information security best practices for transmitting and storing Customer Content, adhering to industry standards; (ii) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management; and, (iii) ensure its host facilities maintain industry standards for security and privacy.
5.5. The Company shall report to Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that the Company reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). The Company shall make such report within seventy-two (72) hours after learning of the Security Breach.
5.6. In the event of a Security Breach, the Company shall (i) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (ii) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (iii) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (iv) use commercially reasonable efforts to mitigate any harmful effect of the Security Breach.
6. Payments, Refunds, and Subscription Changes.
6.1. Subscribers with paid subscriptions will provide the Company with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes which Subscribers agree to pay based on where the Subscriber is primarily domiciled. In addition to any fees, the Subscriber may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
6.2. Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. Monthly Subscribers will thereafter be charged in advance each thirty (30) days. Annual Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
6.3. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
6.4. There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
6.5. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding Authorized User subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes the Company to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
6.6. All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
6.7. Subscriber is responsible for paying all taxes associated with the subscription to the Service. If the Company has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.8. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, the Company receives an amount equal to the sum it would have received had no such deduction or withholding been made.
7. Termination.
7.1. Administrators are solely responsible for canceling subscriptions and subscriptions may be cancelled at any time by accessing the Service. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
7.2. the Company in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (i) in material violation of this Agreement and (ii) create a Security Breach.
7.3. If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Breach; (ii) the Company provides Subscriber with commercially reasonable notice of this violation; (iii) the Company uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to the Company’s reasonable satisfaction within thirty (30) days of such notice, then the Company reserves the right to suspend access to the Service.
7.4. Upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service.
8. Disclaimers, Limitations, and Indemnification.
8.1. Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE MATERIALS OR SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF ITS USE. THE COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.2. Disclaimer of Consequential and Other Damages. THE COMPANY HAS NO LIABILITY TO THE CUSTOMER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. Limitation of Liability. THE COMPANY’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL AMOUNTS RECEIVED BY THE COMPANY FROM CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
8.4. Indemnification By Customer. Customer shall indemnify the Company, its affiliates, and all of their owners, officers, directors, agents, and employees, and each of their respective successors and assigns (each, an “Indemnified Party“) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to: (i) any breach by Customer of any representation, warranty, or covenant set forth in this Agreement, (ii) any negligence, intentional misconduct, or other act or omission of Customer, or its agents or employees, (iii) Customer’s failure to comply with any law or applicable regulation, or (iv) any claims by an unaffiliated third party resulting from, arising out of or relating to any of the foregoing (each a “Third Party Claim“). The Company shall promptly notify Customer in writing of any Third-Party Claim, stating the nature and basis of the Third-Party Claim, to the extent known. Customer has sole control over the defense and settlement of any Third-Party Claim, provided that, within fifteen (15) days after receipt of the above-described notice, Customer notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party is entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party’s legal expenses in exercising this right are subject to indemnification in this Agreement to the extent that:
8.4.1. Customer fails or refuses to assume control over the defense of the Third-Party Claim within the time period set forth above; or
8.4.2. The Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or
8.4.3. Representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest.
9. General.
9.1. Technical Support. Technical support and training may be available to Authorized Users with active subscriptions.
9.2. Force Majeure. “Force Majeure Event” means any act or event that (i) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (ii) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (iii the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
9.3. Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement. No additional or contrary terms on any invoice, purchase order, or other document are binding on either party absent an amendment that conforms to the preceding sentence.
9.4. Relationship of Parties. The parties are independent contractors. None of the terms set forth in this Agreement create, or are to be construed as creating, any partnership, joint venture, agency, master-servant, employment, trust, or any other relationship between the parties. Neither party has the right or the power to serve as an agent of the other party, or to act in any other way on behalf of or in any way that might create a binding obligation on the other party.
9.5. Notices. Each party giving or making any notice, request, demand or other communication (each, a “Notice“) pursuant to this Agreement must give the Notice in writing to the address provided in the introductory clause and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, electronic mail, registered or certified United States Mail (in each case, return receipt requested and postage prepaid), or internationally recognized overnight courier (with all fees prepaid).
9.6. Waivers. The parties can waive this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
9.7. Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement will remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
9.8. Survival of Certain Provisions. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.
9.9. Entire Agreement. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement.
9.10. Assignment and Delegation. Customer shall not assign any of its rights under this Agreement, except with the prior written consent of the Company. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any purported assignment of rights or delegation of performance in violation of this section is void. For avoidance of doubt, the Company may assign its rights or obligations under this contract to any party without Customer’s consent.
9.11. Governing Law, Jurisdiction and Venue. The laws of the State of Mississippi (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Lafayette County, Mississippi, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Lafayette County, Mississippi; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
9.12. Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties are entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
