These Terms of Service apply to the software, services, and goods provided by Soundtrace Inc (“Soundtrace”) to its customer or service recipient (“Customer” and together with Soundtrace, the “Parties”, and each a “Party”) set forth on an estimate, quote proposal, statement of work, invoice, or other transaction or ordering document (a “Statement of Work”, and collectively with these Terms of Service, the “Agreement”) provided by Soundtrace and accepted by Customer.
Soundtrace and Customer agree as follows:
- Soundtrace shall provide to Customer the services set out in the Statement of Work (“Services”).
- Where provided in the Statement of Work, the Services will include the provision of specified hardware as a service to Customer, including ongoing support and maintenance for the provided hardware (“HaaS Services”).
- Where provided in the Statement of Work, the Services will include the provision of and access to specified software services to Customer, including software services to configure and monitor the hardware provided as part of the HaaS Services (“Software Services”).
- Where provided in the Statement of Work and as otherwise provided in this Agreement, the Services will include certain professional services (“Support Services”), which may include customer support, customer training, installation and implementation support, configuration or calibration support for equipment, or other professional services as may be applicable by the terms of this Agreement.
- Where provided in the Statement of Work and as otherwise provided in this Agreement, the Services may include certain audiological services (“Audiology Services”) performed by in-house Soundtrace audiologists and independent contractors within Soundtrace’s network.
- Where Soundtrace determines that changes to the Services under the Statement of Work are required, Soundtrace will inform Customer of such changes in a written notice that describes the extent and reason for the changes, which notice may be in the form of a new or amended Statement of Work, or a new or amended invoice. If Customer does not wish to accept the changes, Customer may refuse the changes by providing written notice to Soundtrace within five (5) days of receiving notice of the changes, otherwise, the changes will be deemed to have been accepted by Customer.
- Where the Statement of Work provides any timelines or milestones for the completion of certain Services (“Timelines”), such Timelines are estimates only, and while Soundtrace will use commercially reasonable efforts to complete Services according to any Timelines, Soundtrace does not, and cannot ensure that Timelines will be met. In the event that any portion of a Timeline is missed due to Customer demands, Customer delays, unforeseen circumstances, or other factors reasonably outside of Soundtrace’s control, all dependent portions of the Timeline will be adjusted based on the impact of such delays. Soundtrace may adjust any Timeline, at Soundtrace’s sole discretion, upon written notice to Customer describing the adjusted Timeline and the underlying cause of the adjustment.
- Operations. Customer is responsible for the operational aspects of accessing and using the Services, including, but not limited to: (a) acquiring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to access and use the Software Services; (b) obtaining access to the Internet; (c) determining the accuracy of all data it uploads to and downloads from the Software Services; (d) adopting reasonable policies, procedures, and quality assurance measures to limit Customer’s exposure with respect to potential losses and damages arising from use, nonuse, errors and omissions of the Software Services, and system downtime, including, but not limited to, examining and confirming data prior to use, identifying and correcting errors and omissions, preparing and storing backup data, replacing lost or damaged data or media, reconstructing data, and providing network security; (e) providing continuous and adequate electrical power and suitable installation locations for Equipment (as defined below); and (f) performing regular maintenance, calibration, testing, or other upkeep for Equipment, unless separately provided for on the Statement of Work.
Soundtrace Obligations. Soundtrace shall designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions: (a) a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Soundtrace Contract Manager”); and (b) a number of employees or contractors that it deems sufficient to perform the Services set out in the Statement of Work.
2. Customer Obligations. Customer shall:
- Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
- Require that the Customer Contract Manager respond promptly to any reasonable requests from Soundtrace for instructions, information, or approvals required by Soundtrace to provide the Services.
- Cooperate with Soundtrace in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Soundtrace to provide the Services.
- Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Soundtrace’s provision of the Services.
- Comply with all applicable laws, rules, and regulations of the jurisdictions in which it accesses and uses the Services, including, but not limited to: (i) all laws, rules, and regulations regarding using, storing, securing, and transmitting data, and (ii) all applicable laws, rules, and regulations concerning workplace safety.
3. HaaS Services.
- Subject to and conditioned on Customer’s payment of fees and compliance with all other terms and conditions of this Agreement, Soundtrace will provide Customer the equipment identified on the Statement of Work (the “Equipment”) during the term of the HaaS Services set forth in the Statement of Work (the “HaaS Term”). As between the Parties, all right, title, and interest in or related to the Equipment is and will remain the exclusive property of Soundtrace. Soundtrace hereby grants to Customer a non-transferable license to access and use the Equipment solely for Customer’s internal business purposes during the HaaS Term. Except as expressly permitted by this Agreement, Customer will not, without Soundtrace’s prior written consent: (i) provide Equipment to any third party for any purpose, (ii) remove Equipment from Customer’s facility or location at which it was initially provided, or (iii) relocate Equipment from an original location of installation within Customer’s facility to another location within Customer’s facility. The restriction of part (iii) above will not apply to Equipment that, by its nature, is intended to be mobile (e.g., such as wearable devices or personal monitoring Equipment). Customer will abide by the terms and conditions of all confidentiality notices or legends placed upon the Equipment or included in documents or other materials provided in association with the Equipment.
- During the HaaS Term, Soundtrace will repair or replace any malfunctioning Equipment at no additional cost to Customer, subject to the terms and limitations of this Section 4 (the “Equipment Warranty”). In order to make a claim under the Equipment Warranty, the Customer Contract Manager must (i) perform basic troubleshooting of the Equipment according to the instructions or materials provided by Soundtrace from time to time; and (ii) if the malfunction is not resolved, notify the Soundtrace Contract Manager in writing including a description of the affected Equipment, the nature of the malfunction, and the troubleshooting performed (a “HaaS Claim”). Upon receiving a valid HaaS Claim, Soundtrace will: (i) coordinate with the Customer Contract Manager as reasonably necessary to verify the malfunction of the Equipment, and (ii) if the Equipment malfunction is verified, notify the Customer Contract Manager in writing to confirm that replacement Equipment will be provided for the HaaS Claim (“Replacement Equipment”). The Equipment Warranty does not assure uninterrupted operation of the Equipment or immediate availability of the Replacement Equipment. Replacement Equipment will be of the same type as, or an equivalent substitute to, the malfunctioning Equipment.
- Upon confirmation of Replacement Equipment, Soundtrace will (i) use commercially reasonable efforts to promptly provide the Replacement Equipment to Customer at the same facility or location at which the malfunctioning Equipment was initially provided under the Statement of Work, and (ii) provide Customer with instructions and materials for returning the malfunctioning Equipment to Soundtrace. Customer will use best efforts to promptly return the malfunctioning Equipment to Soundtrace according to the instructions. If Customer fails to return the malfunctioning Equipment to Soundtrace within 30 days of receiving the return instructions, Soundtrace may, at its sole discretion, invoice Customer for the new retail cost of the malfunctioning Equipment, with payment for such invoiced amount due immediately upon receipt.
- The Equipment Warranty does not apply to Equipment that is malfunctioning, non-functioning, or otherwise unusable as a result of: (i) abuse, misuse, accident or neglect; or, repairs, alterations, and/or modifications which are not expressly permitted under this Agreement and which are performed by anyone other than Soundtrace or its agents; (ii) any cause external to the Equipment, including, but not limited to, electrical work, fire, flood, water, wind, lightning, and transportation, any act of God, or any systems, hardware, or software that is external to the Equipment; (iii) any incompatibility with any system, hardware, or software that is external to the Equipment; (iv) theft or loss of the Equipment, or the relocation of Equipment from the Customer’s location; (v) Customer’s failure to continually provide a suitable installation environment including, but not limited to, adequate electrical power; (vi) Customer’s use of the Equipment for purposes other than those for which they are designed, or the use of the Equipment with accessories not approved by Soundtrace; or (vii) failure of any Equipment not provided by Soundtrace (“Excluded Claims”). In the event of any Excluded Claims, Soundtrace will invoice Customer for the new retail cost of the malfunctioning Equipment, with payment for such invoiced amount due immediately upon receipt.
- Upon the expiration or termination of the HaaS Term, Soundtrace will provide Customer with instructions and materials for returning the Equipment to Soundtrace. Unless otherwise provided in the return instructions, Customer will return Equipment with all components and materials that were included at the time it was originally received, including any protective cases, cabling, mounting hardware, or other materials. Customer will use best efforts to promptly return the Equipment to Soundtrace according to the instructions. If Customer fails to return the Equipment to Soundtrace within 30 days of receiving the return instructions, Soundtrace may, at its sole discretion, invoice Customer for the new retail cost of the Equipment, with payment for such invoiced amount due immediately upon receipt. If the expiration or termination of the HaaS Term is a result of Customer’s breach of this Agreement, Customer will be responsible for any shipping costs associated with returning the Equipment according to the instructions.
- Trial HaaS Services. Where Customer is provided Services on a trial basis under the Statement of Work (“Trial Services”), upon the end of such Trial Services, Customer will either (i) execute a new Statement of Work to continue the Services, or (ii) return all Equipment as provided in Section 4.5. If Customer fails to return the Equipment in accordance with the requirements of Section 4.5, Soundtrace may, at its sole discretion (A) invoice Customer for the new retail cost of the Equipment, or (B) invoice Customer for the full retail cost of a 5 year HaaS Term based upon transitioning the Trial Services to a standard Statement of Work, with payment for any such invoice due immediately upon receipt. In the event of part (B) above, Soundtrace will provide a new Statement of Work that is reflective of the transitioned Services, and Customer hereby accepts and agrees to that Statement of Work.
4. Software Services and Audiology Services.
- Subject to and conditioned on Customer’s payment of fees and compliance with all other terms and conditions of this Agreement (i) Soundtrace will provide Customer the Software Services identified on the Statement of Work during the term set forth in the Statement of Work or, if no term is specified, during the HaaS Term (the “Software Term”), and (ii) Soundtrace hereby grants Customer a non-exclusive, non-transferable right to access and use the Software Services during the Software Term, solely for use by those users who are authorized by Customer (“Authorized Users”), and limited to Customer’s ordinary business purposes.
- Customer shall not use the Software Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User to: (i) copy, modify, or create derivative works of the Software Services in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software Services, in whole or in part; (iv) remove any proprietary notices from the Software Services; or (v) use the Software Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Soundtrace reserves all rights in the Software Services not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software Services or any Soundtrace IP.
- Notwithstanding anything to the contrary in this Agreement, Soundtrace may monitor Customer’s use of the Software Services and collect and compile aggregated statistics, anonymized data, de-identified data, and other similar data (“Performance Data”). As between Soundtrace and Customer, all right, title, and interest in Performance Data, and all intellectual property rights therein, belong to and are retained solely by Soundtrace. Customer acknowledges that Soundtrace may compile Performance Data based on Customer Data (as defined below) or other data input into the Software Services. Customer agrees that Soundtrace may (i) make Performance Data publicly available in compliance with applicable law, and (ii) use Performance Data to the extent and in the manner permitted under applicable law; provided that such Performance Data does not identify Customer, Customer’s Confidential Information, or any customer or client of Customer.
- In the event of the termination or expiration of the Statement of Work under which Customer is receiving Software Services, Soundtrace may immediately disable or limit certain functional features of the Software Services, including disabling Customer’s ability to access or obtain copies of the Customer Data. Customer acknowledges and agrees that Customer will obtain any copies of Customer Data that Customer desires to retain prior to such termination or expiration. At Soundtrace’s sole discretion, Soundtrace may provide Customer additional support in obtaining copies of Customer Data, to the extent that such data is still available in an archive or backup storage, and will charge to Customer additional fees for such additional support.
- In some cases, the Software Services may provide customer with information, data, or reports that include descriptions of environmental characteristics of a workplace. As an example, such information may include descriptions of decibel levels over times in an environment, as may be applicable to measuring occupational noise exposure (“Exposure Reports”). Such information may also include descriptions of rules, laws, or regulations that may be applicable based on the Exposure Reports, and may also include descriptions of certain activities that may be required or recommended based on the Exposure Reports (collectively, “Recommendations”). Customer acknowledges and agrees that: (i) Recommendations are not legal advice or counsel, and shall not be solely relied upon in order to determine any course of action related to any of Customer’s legal duties or other obligations; and (ii) Customer will independently verify, with the help of legal counsel or other suitable advisors, which activities, if any, may be required based on the Exposure Reports. While Soundtrace strives to provide a high level of accuracy of information provided as part of the Recommendations, Soundtrace cannot and does not represent or warrant that the Recommendations will be complete or accurate. Soundtrace expressly disclaims any responsibility or liability arising from Customer’s reliance on the Recommendations.
5. Support Services.
- Subject to and conditioned on Customer’s payment of fees and compliance with all other terms and conditions of this Agreement, Soundtrace will provide the Support Services identified on the Statement of Work during the term set forth in the Statement of Work or, if no term is specified, during the HaaS Term (the “Support Term”).
- For Support Services related to HaaS Claims, malfunction or unavailability of the Software Services, or general customer training or support hours specified on the Statement of Work (“General Support”), Soundtrace will provide General Support between the hours of 8:00 a.m. and 5:00 p.m. Eastern, Monday through Friday (excluding U.S. federal holidays) (hereafter the “Service Coverage Period”). When providing General Support, Soundtrace will use commercially reasonable efforts to promptly respond to Customer requests during the Service Coverage Period. Soundtrace may, at its sole discretion, provide General Support outside the Service Coverage Period upon Customer’s request, and on a time and materials basis at Soundtrace’s then current rates for such Support Services.
- For Support Services other than General Support, which may include custom support for configurations, enhancements, or other support, Soundtrace will perform such Support Services according to the Statement of Work. Unless otherwise provided on the Statement of Work, such Support Services will be provided on a time and materials basis at Soundtrace’s then current rates for such Support Services.
6. Fees and Expenses.
- In consideration of the provision of the Services by Soundtrace and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the Statement of Work. Unless otherwise provided in the Statement of Work, said fee will be payable within 10 days of receipt by the Customer of an invoice from Soundtrace. If Customer requests any services not specified in the Statement of Work, Soundtrace may, at Soundtrace’s sole discretion, provide such services and invoice Customer on a time and materials basis at Soundtrace’s then standard rates.
- Customer shall reimburse Soundtrace for all reasonable expenses incurred in accordance with the Statement of Work if such expenses have been pre-approved, in writing by the Customer Contract Manager, within 15 days of receipt by the Customer of an invoice from Soundtrace accompanied by receipts and reasonable supporting documentation.
- Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder, including any penalties and interest arising from Customer’s failure to pay such taxes timely; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Soundtrace’s income, revenues, gross receipts, personnel, or real or personal property or other assets. If Customer has tax exempt status, it shall supply Soundtrace with its tax-exempt certificate and/or number upon request.
- Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Soundtrace for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Soundtrace does not waive by the exercise of any rights hereunder), if the Customer fails to pay any undisputed amounts when due hereunder and such failure continues for 15 days following written notice thereof, Soundtrace shall be entitled to suspend the provision of any Services until such amounts are paid.
- Payment Method. When executing or accepting the Statement of Work or accessing the Software Services, Customer may be required to provide a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through a third party platform or service (a “Payment Method”). Customer hereby grants Soundtrace the permission use the Payment Method for completion of any payments associated with Services, and to provide the Payment Method to a third-party for completion of any payments associated with the Services as may be needed. Customer agrees that Soundtrace and its third-party payment processors may use the Payment Method for current Services, renewals of Services, subsequently added Services, as well as for any fees or charges related to Excluded Claims, unreturned Equipment, Trial Services, or other fees arising from the Services. All such fees and other charges applicable to the Services or Payment Method, such as taxes and transaction fees, will be charged to the Payment Method on or after the date(s) that such payments are due. For the sake of clarity, where this Agreement provides that Soundtrace will invoice Customer with payment due immediately upon receipt, Soundtrace may charge due amounts to the Payment Method prior to or in parallel with provision of such invoice to Customer. Customer authorizes Soundtrace to charge any Payment Method associated with Customer, including any previously provided Payment Method not designated as the current Payment Method. If a payment is not successful for any reason, Soundtrace may immediately suspend some or all of the Services, which may impact the completeness and availability of Customer Data. Customer may update the Payment Method from time to time upon written request to Soundtrace. Following any update to Customer’s Payment Methods, Customer authorizes Soundtrace to continue to charge any newly added or modified Payment Methods. All payments are nonrefundable and there are no refunds or credits for partially used Services.
- Charges for Excluded Claims & Equipment Returns. Customer acknowledges and expressly agrees that Soundtrace may collect payment for owed amounts, using Customer’s Payment Method and without prior notice to Customer, in at least the following additional circumstances: (i) Soundtrace’s determination of an Excluded Claim according to Section 4.4.; (ii) Customer’s failure to return Equipment according to Section 4.5.
7. Limited Warranty; Disclaimers.
- Soundtrace warrants that it shall perform the Services in accordance with the terms and subject to the conditions set out in the Statement of Work and this Agreement. As Soundtrace’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty, Soundtrace shall (a) use commercially reasonable efforts to promptly cure any such breach at no additional cost to Customer; or (b) at Soundtrace’s sole discretion, terminate the Statement of Work and refund to Customer any prepaid and unearned fees.
- Soundtrace warrants that it shall perform the Support Services (a) using personnel of industry standard skill, experience, and qualifications; and (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. As Soundtrace’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty, Soundtrace shall (a) use commercially reasonable efforts to promptly cure any such breach at no additional cost to Customer; or (b) at Soundtrace’s sole discretion, terminate the Statement of Work and refund to Customer any prepaid and unearned fees.
- Soundtrace will take all commercially reasonable steps to keep the Software Services operating smoothly and efficiently. However, since the Software Services operate using computer equipment, computer software programs, and the Internet, Soundtrace shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including, without limitation, limitations on the availability of telephone transmission lines and facilities, failures of cellular data network equipment, failures of other communications equipment, Internet access delays or failures, failures or deficiencies of Customer’s equipment, or Customer’s failure to meet its responsibilities under this Agreement. Soundtrace will maintain adequate back-up arrangements and equipment in order to maintain Customer’s data stored on or through the Software Services in the event of the failure of any of Soundtrace’s equipment. Service interruptions for maintenance and system upgrades will be scheduled, to the extent reasonably practicable, to minimize interference with Customer’s daytime business activities. For unscheduled service interruptions attributable to causes within Soundtrace’s reasonable control, as Soundtrace’s sole obligation and Customer’s exclusive remedy, Soundtrace shall make use best efforts to promptly restore the Software Services.
- Customer acknowledges and agrees that (i) regular, maintenance, calibration, and other upkeep of Equipment is required in order to ensure normal operation, and that such activities are the sole responsibility of Customer unless otherwise specified on the Statement of Work; (ii) proper installation, mounting, and other physical configuration of the Equipment, as well as regular inspection and testing of such physical configuration is required in order to ensure normal operation and reduce the risk of injury from the Equipment, and that such activities are the sole responsibility of Customer unless otherwise specified on the Statement of Work; and (iii) Customer’s compliance with certain laws, rules, or regulations may be dependent upon Customer performing the preceding activities or ensuring that such activities have been performed. Soundtrace specifically and expressly disclaims any responsibility or liability arising from miscalibrated or otherwise misconfigured Equipment, and Customer expressly agrees that Customer is solely responsible for such liability, including at least any claims, damages, risks, liabilities, or other costs arising from (a) any compliance or non-compliance with any law, rule, regulation, or other requirement, including those provided by the Occupational Safety and Health Administration (“OSHA”), or (b) injury or an allegation of an injury by or on behalf of any Customer employee, consultant, visitor, or other personnel or third party, including hearing loss or related injuries.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SOUNDTRACE MAKES NO WARRANTY (i) THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (ii) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S DISCRETION AND RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM SOUNDTRACE OR THROUGH OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOUNDTRACE MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN 8.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. SOUNDTRACE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, ACCURACY OF DATA, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR FROM USAGE OF TRADE.
8. Intellectual Property.
- Except as expressly provided by this Agreement, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Services or the results of the Services are and will remain the sole property of Soundtrace.
- Soundtrace and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all documents, data, know-how, methodologies, software, and other materials, including computer programs, hardware designs, inventions, and specifications, provided by or used by Soundtrace in connection with performing the Services, in each case developed or acquired by Soundtrace (i) prior to the commencement of this Agreement, or (ii) for use by Soundtrace’s customers generally, including all Intellectual Property Rights therein (“Soundtrace IP”). For the sake of clarity, the Soundtrace IP includes the Software Services, any Intellectual Property Rights embodied by hardware provided as part of the HaaS Services, and any documents, guides, tools, software, methods, processes, or other materials used in the course of providing Support Services.
- Excluding any Soundtrace IP, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in and to all information that Customer provides as input to the Software Services, and all information or reports produced by the Software Services as output, including all Intellectual Property Rights therein (“Customer Data”). To the extent that any Customer Data is created by Soundtrace, such Customer Data is a work-for-hire owned by Customer. To the extent that any such Customer Data is not considered a work-for-hire, Soundtrace hereby assigns all right, title, and interest in and to such Customer Data to Customer. Customer hereby grants to Soundtrace a perpetual, irrevocable, non-exclusive, worldwide, royalty free, sublicensable, fully paid up license to use, store, copy, modify, transmit, and creative derivative works of the Customer Data: (i) in order to perform the Services for Customer, and (ii) in aggregate, de-identified, or otherwise anonymous forms in order to improve the Services and create the Performance Data.
- To the extent that any Soundtrace IP is incorporated with Customer Data, Soundtrace hereby grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to use such Soundtrace IP solely in the form and manner incorporated with the Customer Data, and solely to the extent reasonably required to enable Customer to make reasonable use of the Customer Data in accordance with this Agreement.
- Customer acknowledges that Soundtrace personnel performing Services under this Agreement may perform similar services for others, and this engagement by Customer will not prevent Soundtrace from providing services or developing materials that are competitive with those developed hereunder for Customer regardless of any similarity between such services or materials. Soundtrace and its personnel shall be free to use their general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used in the course of providing Services hereunder on other engagements; and Soundtrace’s other customers shall have the right to use materials incorporating such ideas, concepts, know-how and techniques.
- Unless otherwise provided for on the Statement of Work, Customer represents and warrants that the Customer Data and any other data, information, or other materials provided by Customer to Soundtrace in relation to the Services will not include any personally identifiable information, personal data, or private data of Customer, Customer’s personnel, Customer’s customers, or any other party.
- From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this 10; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 10 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, partners, members, managers, agents, independent contractors, attorneys, accountants, and financial advisors.
1. Term, Termination, and Survival.
- This Agreement shall commence as of the effective date of the Statement of Work and shall continue thereafter until terminated pursuant to this Section 11 or the expiration or termination of the Statement of Work (the “Term”).
- Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Additionally, Soundtrace may terminate this Agreement or any Statement of Work, in its sole discretion, upon 30 days prior written notice to Customer.
- In the event that this Agreement or a Statement of Work is terminated (i) as a result of Soundtrace’s status as a Defaulting Party under Section 11.2, or (ii) for Soundtrace’s convenience under Section 11.2, Soundtrace shall refund to Customer any prepaid and unearned fees for portions of the Services not yet provided.
- The rights and obligations of the Parties set forth in this 11, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
2. Limitation of Liability.
- IN NO EVENT SHALL SOUNDTRACE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, OR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES, OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SOUNDTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SOUNDTRACE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SOUNDTRACE PURSUANT TO THE STATEMENT OF WORK IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Indemnification by Customer. Customer shall indemnify and hold Soundtrace harmless from and against all claims, liabilities, damages, and expenses claimed or brought by a third party, including court costs and reasonable attorney fees, arising out of or in any manner connected with (a) Customer’s use of the Services, except to the extent arising from Soundtrace’s gross negligence or willful misconduct, (b) Customer’s breach of its obligations under Section 3, Section 9, or Section 10, including any claim or allegation that Soundtrace’s use of the Confidential Information or other materials provided by Customer infringe the rights of any third party, (c) Customer’s negligence, willful misconduct, or violation of law, (d) non-compliance with any law, rule, regulation, or other requirement, including those provided by OSHA, or (e) injury or an allegation of an injury by or on behalf of any Customer employee, consultant, visitor, or other personnel or third party, including hearing loss or related injuries.
- Insurance. At all times during the Term of this Agreement and for a period of three years thereafter, Customer shall procure and maintain, at its sole cost and expense, at least the following types and amounts of insurance coverage (i) Commercial General Liability with limits that are reasonable and industry standard given the extent of Customer’s business activities, including bodily injury and property damage; and (ii) Worker's Compensation with limits no less than the minimum amount required by applicable law. Upon the written request of Soundtrace, Customer shall provide Soundtrace with copies of the certificates of insurance and policy endorsements for all insurance coverage, and shall not do anything to invalidate such insurance. This Section 14 shall not be construed in any manner as waiving, restricting, or limiting the liability of either Party for any obligations imposed under this Agreement (including but not limited to, any provisions requiring a Party hereto to indemnify, defend, and hold the other harmless under this Agreement).
- Publicity. Soundtrace may use Customer’s name and logo to publicly identify Customer as Soundtrace customer in a press release, on Soundtrace’s website, and through other public communications. Customer will provide a brief statement that Soundtrace may use in such communications. Soundtrace may also produce and publicly distribute a case study regarding Customer’s use of the Services.
- Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of the Statement of Work, the terms and conditions of this Agreement shall supersede and control.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party using the contact information as set forth above.
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Soundtrace. Any purported assignment or delegation in violation of this 21 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Soundtrace may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Soundtrace’s assets without Customer’s consent.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Soundtrace shall be under its own control, Customer being interested only in the results thereof. Soundtrace shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Dispute Resolution for Customer in United States of America. Any claim or controversy arising out of or relating to this Agreement, including any anticipatory breach or disagreement as to interpretation of this Agreement, that is not resolved by the Parties themselves or through a third-party mediator, shall be settled by binding arbitration in Cincinnati, Ohio administered by Cincinnati Bar Association Arbitration Services pursuant to its rules and procedures in effect at the time the dispute is submitted. The arbitrator(s) shall decide all discovery issues. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Neither Party nor the mediator nor the arbitrator(s) may disclose the existence, content, or results of any mediation or arbitration hereunder without the prior written consent of both Parties. All fees and expenses of the mediation and arbitration shall be borne by the Parties equally. However, each Party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs, except that, in arbitration, the prevailing Party shall be entitled to an award of reasonable attorney’s fees.
- Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Ohio, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio.
- Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the courts of the State of Ohio, located in or near the Cincinnati, Ohio metropolitan area. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such venue. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Soundtrace hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities.
The Impacted Party shall promptly give notice to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days, the other Party may thereafter terminate this Agreement upon 30 days’ written notice.