SONAR SUBSCRIPTION TERMS OF SERVICE
Effective date: Dec 30, 2022
These Sonar Subscription Terms of Service (these “Terms”), together with the terms set forth on any service order, statement of work, or similar document or online order form that contains a reference to these Terms (each, an “Order Form”), constitute a legally binding and enforceable services agreement (the “Agreement”) by and between (1) the person or entity accepting these Terms (“Customer”) by entering into the Order Form via having a duly authorized representative sign or electronically accept the terms of such form; and (2) Sonar Technologies, Inc., a Delaware corporation (“Sonar” or “Service Provider”). These Terms shall govern Customer’s access to and use of the information and data services made available by Service Provider (collectively, the “Services”) and shall be deemed incorporated by reference into each Order Form. All capitalized terms used herein shall have the respective meanings ascribed to them in these Terms or the Order Form, as applicable. Customer and Service Provider hereby acknowledge and agree as follows:
1. SERVICES AND SUPPORT
The Services are made available as subscription licenses according to any usage limitations and/or allowances as set forth in the Order Form. Subject to payment of the applicable Fees and in consideration of the marketing obligations listed herein as well as on the Order Form, Service Provider hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable, non-transferable right to access and use the specific Services listed on the applicable Order Form in accordance with the terms and conditions of this Agreement and the relevant published operational documentation made available by Service Provider (“Documentation”) during the Subscription Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Services account (the “Account”). Customer may use the administrative Account to create standard users (each with a user password) up to the maximum number permitted in the Order Form.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 This is a subscription for Services and the applicable hosted software will be installed, accessed and maintained only by or for Service Provider and no license is granted thereto. As between the parties, Service Provider retains all rights, title, and interest in and to the Services and any underlying software or Documentation provided by Sonar in connection therewith (collectively the “Sonar Materials”) and all modifications, improvements, and derivatives of any of the foregoing. As between the parties, Customer will retain ownership of all messaging content that Customer provides or receives through its use of the Services (collectively, the “Content”) and any analytics data collected or created by Service Provider in connection with Customer’s use of the Services during the Subscription Term and through Customer's account, that is specific to and in a form identifiable with Customer (collectively, the “Customer Data”), subject to Sonar's non-exclusive right to use the Content and Customer Data in connection with the delivery of its Services and operation of its business including use on an aggregated/anonymized basis as set forth in Section 3.2.
Customer shall not (and will not allow any third party to), directly or indirectly:
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Sonar Materials;
- modify, translate, or create derivative works based on the Services or any Sonar Materials or any aspect or portion thereof;
- copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Sonar Materials including any features, designs or graphics made available as part thereof;
- use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
- remove any proprietary notices or labels;
- access or use any Services for the purposes of monitoring their performance or functionality for competitive purposes;
- interfere with or disrupt the integrity or performance of the Services;
- attempt to gain unauthorized access to the Services or its related systems or networks;
- use any Services to transmit any harassing, unsolicited, or unwanted messages (commercial or otherwise) or to engage in any form of fraudulent, misleading, or deceptive practices; or
- load into the Services any Content that (A) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; (B) constitutes “hate speech”; (C) constitutes or solicits personally identifiable health information unless proper notices and consents are obtained; (D) infringes the intellectual property of any person; or (E) introduces malicious code.
2.2 Customer represents, warrants, and covenants that Customer will access and use the Services only in compliance with all applicable laws and regulations (including the Telephone Consumer Protection Act, federal and state telemarketing, and privacy laws or equivalent or similar laws and regulations in non-U.S. jurisdictions, if applicable under the Order Form) and Service Provider’s standard access and security policies then in effect. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Equipment”). In addition, with respect to any available data integration/interoperation of the Services with any third-party platforms, applications, websites, systems, products and/or services, Customer shall be responsible for compliance with any and all applicable third-party terms of service and privacy policies for its own account(s) with such third-party providers.
2.3 Customer shall be responsible for ensuring that its Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including administrative and user passwords) and files, and for all uses of the Account or the Equipment whether with Customer’s knowledge or consent or due to Customer’s failure to maintain the security of its Account access credentials. Customer agrees to immediately notify Service Provider if Customer believes that an unauthorized third party may be using Customer’s account or otherwise if Customer’s account login credentials are compromised. During the Subscription Term, Service Provider will implement and maintain an information security program consistent with applicable industry standards designed to prevent unauthorized access, use or disclosure of Customer Data stored and/or processed by Service Provider pursuant to this Agreement.
2.4 Customer may choose to provide Service Provider with input, suggestions, comments, ideas, concepts, know-how, or other feedback (collectively, “Feedback”) in connection with its use of any Services and agrees that Service Provider will be free to use such Feedback entirely without obligation or restriction. Additionally, upon approval by Customer, Service Provider may (i) produce and publish a case study on its website regarding the Customer’s use of the Services, and (ii) create promotional materials such as press releases, advertisements, brochures, etc. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Service Provider and the Services, to be used for Service Provider’s marketing and publicity purposes.
Description of Services. Sonar hereby grants you a limited, revocable, non-exclusive, non-sublicenseable, non-transferable right to access and use the specific Services listed on the applicable Order strictly in accordance with these Terms and our relevant published operational documentation (“Documentation”) during the Term. The Services include the supply of one or more telephone numbers (each a “Number”) as well as the reporting and delivery of associated analytics data. You may use the Numbers as you see fit (e.g. for display and/or publication in various media placements), subject to these Terms and any usage limitations and/or allowances applicable to your selected subscription plan specified on your Order. You acknowledge and agree that any demo version of the Services made available on a trial basis may be limited in features, functionality, or have other limitations we may set from time to time. For the purposes of this Agreement, the term “Personal Data” shall mean information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with any natural person, household, or device and that is collected, received, stored, processed, or otherwise used by Sonar in providing the Services to Customer under an Order.
Call Tracking. The terms of this subsection apply to any Services that enable you to use Numbers to track inbound calls to your business and/or any outbound telephone calls from your business representatives.
Optional Call Recording. Recording, monitoring, analyzing and archiving calls under the Services (collectively, the “Call Recording Services”) are made available as an optional product feature. You may elect not to use Call Recording Services in connection with the Services. To the extent that you do choose to use any Call Recording Services the following terms shall apply:
You represent and warrant that you shall use all available functionality or other available means to ensure that your use of Call Recording Services is in full compliance with all laws applicable to recording, monitoring, storing and/or divulging telephone calls. Without limiting the generality of the foregoing, to the extent that applicable laws and regulations may require that you provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who receive telephone calls monitored and/or recorded in connection with the Services hereunder (the “Call Recipients”), you agree, acknowledge, represent and warrant that you will provide and/or obtain all requisite notices, consents, and permissions relating to Call Recipients, as required by applicable laws and regulations.
You acknowledge and agree that any sample or default pre-recorded notices or messages made available by Sonar within the Call Recording Services, whether at your request or not, are for illustration purposes only and that notwithstanding anything herein to the contrary, we make no representations or warranties with respect to any use of any such notice by you or any other party. In the event a call recording notice requires a revision in order to comply with applicable law, then you shall promptly notify us of that fact, proposing the exact language that you require to comply with applicable laws.
You represent and warrant that your use of the Recorded Call Services will be only for internal business purposes such as “customer service” or “quality assurance” purposes. Without limiting the generality of the foregoing, you acknowledge and agree that Call Recording Services are not intended to be used for the purposes of collecting, accessing, using, or disclosing personally identifiable health information, including Protected Health Information (“PHI”), as defined in the applicable regulations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Regulations”). To the extent that you are a “covered entity,” as defined in HIPAA, any exposure to PHI hereunder will be random, infrequent and incidental to our provision of Call Recording Services and is not meant for the purpose of accessing, managing the PHI or creating or manipulating PHI. As such, we shall not be deemed to be a “Business Associate” under the HIPAA Regulations for the purposes of this Agreement.
Outbound Call Tracking. Any Services that enable tracking your outbound telephone calls are not intended to and may not be used to make calls to any kind of emergency services including 911 or any other public safety answering points for services such as police, fire response, and/or medical services. We will not be liable for any claim, loss or damages whatsoever to the extent arising from or related to your inability to use the Services to make such emergency calls.
Maintenance and Support. We will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, subject to downtime from scheduled maintenance and circumstances outside of our reasonable control. We will provide reasonable customer support for the Services from Monday through Friday during our normal business hours.
APIs and Third-Party Integrations. Certain Services may enable the export of your Account Data to or other interoperation with one or more third-party platforms, applications, websites, systems, products and/or services for which we make an integration available (each, a “Third-Party Technology”). If a Third-Party Technology provider modifies its APIs or integration requirements in a way that prevents interoperation with our Services, or imposes requirements with respect to interoperability that we deem to be unreasonable, and if we are unable to accommodate such modifications or requirements after reasonable efforts to do so, then upon reasonable notice to you, we may cease or suspend our provision of interoperability between the Services and the affected Third-Party Technology without liability. To the extent included on an Order, you may only implement those automated means that are expressly made available or approved in writing by Sonar for the purposes of enabling interoperability between the Services and either your own systems or environment or an applicable Third-Party Technology, subject to your compliance with all programming instructions, and/or standards for accessing Services set forth in the relevant Documentation.
Acceptable Use of Services.
Your Account. You shall be responsible for obtaining and maintaining any equipment and any ancillary services needed to access and use the Services. You agree to protect any passwords or other login credentials associated with your account and are responsible and liable for all activities conducted through your account, regardless of who conducts those activities. You agree to take all reasonable precautions to prevent unauthorized access to, or use of, our Services, and agree to immediately notify us if you believe that an unauthorized third party may be using your account or otherwise if your account login credentials are compromised. We will not be liable for any loss or damage arising from your failure to protect your account credentials. As between the parties, you are also solely responsible for all use and for all acts and omissions of anyone you authorize to access your account and their respective compliance with these Terms.
Your Responsibilities. You represent, warrant, and covenant that you will access and use all Services only in compliance with all applicable laws and regulations (including the Telephone Consumer Protection Act (“TCPA”), the FTC’s Telemarketing Sales Rule, federal and state telemarketing, and privacy laws or equivalent or similar laws and regulations in non-U.S. jurisdictions, if applicable under the Order) as well as applicable industry self-regulatory guidelines (e.g. the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association). Without limiting the generality of the foregoing, you will be responsible for: (1) implementing any consumer disclosures, consent, and/or age verification processes that may be required by applicable laws and regulations (e.g. the TCPA, the FTC’s Telemarketing Sales Rule, etc.) with respect to any persons to be contacted using any Services and maintaining all records thereof necessary to demonstrate compliance; (2) compliance with any applicable time-of-day restrictions to contact any individuals using any Services under applicable law or regulation; (3) all text and/or image content you contribute in any manner, approve for use, or transmit to anyone in connection with any Services (collectively, “Content”); and (4) your use of any Personal Data acquired in connection with your use of the Services and implementing appropriate security safeguards to protect any Personal Data you choose to export from the Services. In addition, with respect to any Third-Party Technology you elect to use in connection with the Services, you will be responsible for your compliance with any and all applicable third-party terms of service for your own account(s) with such third-party providers.
Opt Outs. We will provide an opt-out feature for messages sent through the Services. However, if you receive any opt out request(s) outside of the Services, you shall promptly remove the relevant contact information from your Sonar account and/or upload the applicable out-out information to your account in the format specified by Sonar. We will not be responsible for any opt-out request(s) that you neglect to process as provided herein or for any delays in your processing of such opt-out request(s) in accordance herewith.
Prohibited Uses. You shall not (and will not cause any third party to), directly or indirectly: (1) reverse engineer, decompile, disassemble or otherwise attempt to discover of any source code or other operational mechanisms of the Services or any software or Documentation we provide in connection therewith (collectively, the "Sonar Materials"); (2) modify or create derivative works based on the Services or Sonar Materials or any aspect or portion thereof; (3) copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Service or any Sonar Materials including any features, designs or graphics made available as part thereof; (4) access or use the Service for the purposes of monitoring their performance or functionality for competitive purposes; (5) interfere with or disrupt the integrity or performance of the Services; (6) attempt to gain unauthorized access to the Services or its related systems or networks; (7) use the Service to transmit any harassing, unsolicited, or unwanted messages (commercial or otherwise) or to engage in any form of fraudulent, misleading, or deceptive practices; or (9) use the Services in any manner or for any purpose that violates any applicable law, regulation, industry guidelines or any right of any person, including intellectual property or rights of privacy. If we incur any fines, penalties, or similar costs from a governmental or regulatory body or a telecommunications provider as a result of your use of the Services, you agree to pay all such costs in accordance with Section 3 below.
Content Restrictions. You shall not use the Services, or authorize the Services to be used directly or indirectly, to transmit any Content that: (1) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; (2) constitutes “hate speech” directed at an individual or a group based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, gender identity or language of such individual or group, (3) infringes or misappropriates the intellectual property of any person; (4) causes the introduction of “viruses,” “worms,” “Trojan horses,” “cancelbots,” or other similar destructive computer programming routines into any of our systems or the handsets or other devices of any consumers; or (5) constitutes or solicits personally identifiable health information under applicable law unless you maintain records of having provided written warning of the risk of unauthorized disclosure and have obtained the individual´s written consent to communicate by text in each instance. Although we have no obligation to monitor your Content or any other information or materials you provide through your use of the Services, we may do so and may, in our sole, but reasonably exercised, discretion, remove any such content or prohibit any use of the Services we believe may be (or is alleged to be) in violation of these Terms or could reasonably become the subject of any legal, regulatory, or other governmental proceeding or process, including any law enforcement, proceeding, process, or inquiry.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (“Proprietary Information”). Nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered Proprietary Information of the Disclosing Party unless either it is disclosed in tangible or written form and is conspicuously marked Confidential or Proprietary (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
3.2 The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except as expressly permitted herein) or divulge to any third party any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document is or becomes generally available to the public; was in its possession or known by it without restriction on disclosure prior to receipt; was rightfully disclosed to it without restriction by a third party; was independently developed without use of any Proprietary Information; or is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. PAYMENT OF FEES
4.1 Customer will pay Service Provider the applicable fees and charges as specified on the applicable Order Form (the “Fees”). All Fees are payable via check, electronic transfer, or by other means specified on the Order Form. Customer shall be responsible for all applicable taxes and any applicable campaign registration fees, surcharges, or similar fees associated with the Services (collectively “Surcharges”) that are charged by communications service or telecommunication providers or their authorized designees, subject to valid exemptions.
4.2 Payment obligations for Fees based on purchased subscription licenses to Services (“Subscription Fees”) will be non-cancelable and Subscription Fees paid will be non-refundable except as otherwise expressly provided in this Agreement. Subscription Fees will be due and payable on the 1st payment due date specified on the Order Form and monthly thereafter or in accordance with any different billing frequency stated on the Order Form. For subscriptions of a year or longer, Service Provider may change the Subscription Fees and/or institute new fees or charges for renewal periods by providing written notice at least sixty (60) days prior to renewal.
4.3 Any Fees that apply based on usage of Services (“Usage Fees”) will be due and payable no later than thirty (30) days after the end of the month in which Services are provided. Usage shall be calculated factoring in any segmentation applied by telecommunication service providers based on then-current character limits. If Customer believes that Service Provider has billed incorrectly, Customer must contact Service Provider within fifteen (15) days after the first billing statement in which the error appeared to receive an adjustment.
4.4 If Customer elects to pay Fees by credit card, Customer authorizes Service Provider to charge such credit card for any Fees owed under this Agreement and will promptly update billing information as needed. Past due amounts may incur a finance charge of 1.5% per month, or the maximum permitted by law, plus all expenses of collection. Service Provider may suspend access to the Services for past due accounts.
Reservation of Rights. As between the parties, we own all rights, title, and interest in and to the Services and any Sonar Materials provided to you hereunder and all modifications, improvements, and derivatives of any of the foregoing. We reserve all rights not expressly granted hereunder. Without limiting the generality of the foregoing, as between the parties, all Numbers we provide in connection with the Services remain our property pursuant to agreements with various telephone carriers and are made available solely for use in accordance with these Terms and subject to applicable law and regulation. You acknowledge and agree that your use of the Services and/or any Number(s) may be further limited by, among other factors, changes to carrier terms, industry standards, changes in carrier relationships, guidelines recommended by Federal, state or local regulators, or changes to applicable law and regulation from time to time. Additionally, we reserve the right to set limits on the volume of Numbers made available in connection with the Services and make no guarantee that local CTNs will be available for specific area codes. You may choose to provide us with input, suggestions, comments, ideas, concepts, know-how, or other feedback (collectively, “Feedback”) in connection with your use of the Services and agree that we will be free to use such Feedback entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
Your Content and Account Data. Any Content sent or received through the Services as well as any data or information we collect or create pursuant to this Agreement that is specific to and made available through your account (collectively, “Account Data”) shall belong to you, provided that we may use your Account Data as necessary in connection with the delivery of our Services to you and will retain a non-exclusive, perpetual right to use any such Account Data on an aggregated (non-personally identifiable) basis for purposes that may include quality assurance, advancing and improving our products and services as well as development and publication of market and industry intelligence and expertise. We may also collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that such user data is anonymized and no personally identifying information is revealed.
5. TERMINATION
5.1 Subject to earlier termination as provided below, the initial effective term of this Agreement (the “Subscription Term”) shall be for the period specified in the applicable Order Form and shall automatically renew for additional periods of the same duration unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.
5.2 Either party may terminate this Agreement upon thirty (30) days’ prior written notice if the other party materially breaches and fails to cure within such period. Notwithstanding the foregoing, if Customer violates Section 2.1 or experiences certain insolvency events, Service Provider may immediately suspend or terminate. If terminated due to Customer breach, Customer will pay all remaining Subscription Fees through the end of the then-current Subscription Term.
5.3 Termination does not limit either party from pursuing other remedies. Customer will pay any applicable Usage Fees up to and including the last day on which the Services are provided.
5.4 Upon termination, Customer’s rights under Section 1 will terminate and, upon request, the Receiving Party shall return or destroy the Disclosing Party’s Proprietary Information. Sections that by their nature should survive termination will survive, including Sections 2, 3, 4, 6, 7, 8, and 9.
6. INDEMNIFICATION
6.1 Service Provider will indemnify, defend, and hold Customer harmless against any third-party claim alleging that the use of the Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, subject to customary conditions and exclusions, and may procure rights, replace/modify the Services, or terminate and refund prepaid, unused Fees if necessary. This Section 6.1 constitutes Customer’s sole and exclusive remedy with respect to any such infringement claim.
6.2 Customer will indemnify, defend, and hold harmless Service Provider from any claim arising from Content provided by Customer or Customer's use of the Services, including violations of Sections 2 or use or disclosure of Customer Data obtained through the Services.
7. WARRANTY AND DISCLAIMER
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY. THE FOREGOING EXCLUSIONS AND LIMITS SHALL NOT APPLY TO: (I) ANY BREACH OF SECTION 3 (CONFIDENTIALITY); (II) CUSTOMER’S BREACH OF SECTIONS 2.1-2.2; AND (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6. CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 WILL NOT BE LIMITED.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The word “include” or any variants thereof used herein shall be construed non-exclusively to mean “including without limitation.” Section headings are for reference only. This Agreement is not assignable by Customer without Service Provider’s prior written consent. Except for payment obligations, neither party is liable for any failure or delay resulting from a condition beyond the reasonable control of the party. This Agreement constitutes the entire agreement between the parties with respect to the Services specified in the corresponding Order Form, superseding and replacing any and all previous written and oral agreements relating to such Services. No waiver of a breach shall be deemed a waiver of any succeeding breach. No agency, partnership, joint venture, or employment is created as a result of this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and deemed given as provided herein. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief will be appropriate. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court. Each party waives any right to a jury trial. Sonar may modify these Terms by posting a revised version to its website, and Customer's continued participation in the Services following such changes signifies acceptance.
Billing. If you sign up for a paid Services plan, you agree to provide us with valid credit card information and hereby authorize us to charge such credit card for any amount owed under this Agreement including the recurring monthly fees for your selected plan, your initial selected account deposit balance amount and, if applicable, your selected re-occurring balance amount based on the applicable threshold remaining balance for your plan. You will provide complete and accurate billing and contact information and will promptly notify us of any changes to such information. All dollar amounts referred to in this Agreement are in the lawful money of the United States of America. You agree that Sonar may deduct all applicable fees for your usage of Services from your deposit balance based on the applicable pricing rates applicable to your selected subscription plan specified on your Order.
Calculations. Usage of SMS/MMS will be calculated factoring in any segmentation applied by telecommunication service providers based on then-current character limits. For example, for as long as a limit of 160 alpha-numeric characters per transmitted SMS message is applied in the telecommunications industry, if a given SMS-based communication sent or received through the Services includes 280 alpha-numeric characters, it will be counted as two messages. If applicable, any usage metrics for Services based on a per minute calculation shall be rounded up to the nearest whole minute. Sonar reserves the right to change its pricing rates and to institute new charges and fees, upon prior written notice to you (which may be sent by email or notification within the Services dashboard).
Late Payments. If we are unable to collect fees owed from your credit card for any reason, you shall either promptly provide us with an alternate credit card to pay such amount or otherwise remit payment to us within three (3) business days after we notify you. In any event, you shall be liable for any finance charges levied by the payment networks processing your payment, plus an additional finance charge of 1.5% per month on the outstanding amount, or the maximum rate permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
Taxes and Surcharges. All our fees are exclusive of and you will be responsible for payment of (1) all applicable taxes, levies, duties, or other similar charges imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”), if any, associated with Services other than Taxes based on our net income, property, or employees; and (2) all applicable campaign registration fees, surcharges, or similar fees associated with the Services (collectively “Surcharges”) that are charged by communications service or telecommunication providers (e.g., carriers) or their authorized designees (e.g. The Campaign Registry), provided that if you provide us with valid exemption information or a certificate issued by an appropriate authority, you will become exempt from Taxes and/or Surcharges on a going-forward basis once we confirm the validity of the exemption request.
5. CONFIDENTIALITY.
For the purposes of this Agreement, "Confidential Information" shall include: (a) the results, data, or performance information relating to the Services; (b) the pricing and other terms of any offers or promotions we may communicate to you from time to time; and (c) any information provided, which, under the circumstances surrounding its disclosure would be reasonably deemed confidential, or that which we designate as "confidential", "proprietary" or some similar designation, whether upon disclosure or thereafter. During the Term, and for a period of two (2) years following the termination or expiration of this Agreement, you shall not disclose any of our Confidential Information, except to an employee or authorized agent of your business who has a need to know such information and is bound by confidentiality obligations similar to those contained in this Section 5. You shall use the same degree of care that you use to protect your own confidential and proprietary information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. You may not use any portion of any Confidential Information for any purpose other than as needed to facilitate your use of the Services and fulfill your obligations under this Agreement. You hereby acknowledge and agree that if you breach this Section 5, we will have no adequate remedy at law available to us, will suffer irreparable harm, and will be entitled to seek immediate injunctive and/or other equitable relief in addition to any other remedies which may be available under contract or at law. You hereby waive any requirement for a bond in connection with any such claim for injunctive relief. The restrictions placed on the use and disclosure of Confidential Information by this Section 5 do not apply to information that has become publicly known through no breach by you, or has been: (i) independently developed by you without access to our Confidential Information; (ii) approved in writing for release by us; or (iii) required to be disclosed pursuant to a valid legal process; provided, however, that you promptly notify us of any such requirement and reasonably cooperate with us to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information.6. ACCOUNT DATA.
During the Term, we will implement and maintain an information security program consistent with applicable industry standards and that includes administrative, technical, and, if applicable, physical safeguards that are commensurate to the nature and sensitivity of the relevant information assets and designed to prevent unauthorized access, use or disclosure of Account Data stored and/or processed pursuant to this Agreement. To the extent applicable, each party agrees to comply with all state and federal laws that relate to the protection of privacy and Personal Data and/or provide individuals with certain rights with respect to their Personal Data such as the California Consumer Protection Act (California Civil Code §§ 1798.100, et seq., as amended by the California Privacy Rights Act of 2020), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, the Connecticut Data Privacy Act, and their respective implementing regulations and guidance, as may be amended or supplemented (collectively, the “Data Privacy Laws”). To the extent relevant to the Services provided under this Agreement and any applicable Data Privacy Laws, you will be deemed to be the “business” or “controller” and we shall be deemed to be the “service provider” or “processor” to you under the Data Privacy Laws, as applicable. The nature and purpose of our processing of Personal Data under these Terms is the provision of the specific Services listed in the applicable Order to you (the “Business Purpose”). The processing of the Personal Data shall continue for the duration of the Term Term subject to Section 6(b) below. We will: (1) limit the collection of any Personal Data to only what is necessary for the Business Purpose; (2) not “sell” or “share” (as such terms are defined under applicable Data Privacy Laws) such Personal Data; and (3) not retain, use, or disclose such Personal Data for a commercial purpose other than providing the Services to Customer or any purpose other than: (i) the Business Purpose; (ii) in accordance with your written instructions; or (iii) as otherwise permitted by the applicable Data Privacy Laws. We will cooperate with you in responding to and complying with consumer requests made pursuant to any applicable Data Privacy Laws and, if applicable, requiring our sub-processors, if any, to do the same with respect to any Personal Data in their custody or control unless we determine in good faith that such processing is impossible or involves disproportionate effort, in which case, we will provide you with a reasonably detailed explanation of our determination. To the extent required by any applicable Data Privacy Laws, once per year during the Subscription Term and upon reasonable advance notice from you, we will provide you with any information reasonably necessary to demonstrate our compliance with our obligations under this Section. We shall notify you if we determine that we can no longer meet our obligations under any applicable Data Privacy Laws. In such event, you shall have the right, upon notice to us, to take any reasonable and appropriate steps to stop and remediate any unauthorized processing of Personal Data by us.
All archived Account Data shall be subject to our standard storage and deletion protocols, including maximum storage periods and automatic and mandatory deletion protocols, which may change from time to time. Notification of any such changes may be posted on our website or within your account dashboard or sent by email. You agree to download and maintain a backup of any information or data that you require to be subject to your own storage protocols, subject to these Terms. You acknowledge and agree that we may disclose Account Data to law enforcement or other governmental authorities upon receipt of request therefrom or in connection with any and all exigent circumstances involving individual or public health, rescue or safety, without incurring any liability for such action.
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