Sonar Agreement

Sonar Agreement

Please review the agreement below and sign to access your Sonar instance.

This software as a service subscription agreement (the “Agreement”) is between you, the Customer, and Sonar Software, Inc., a Canadian corporation, having its principal place of business at PO Box 270191, West Allis, WI, 53227, USA (“Sonar”). This Agreement governs your use of the Sonar System (as defined below) and any related services provided by Sonar. If you use the Sonar System, or if you click “I agree” or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you are an agent or employee of the Customer, you individually represent and warrant to Sonar that you are authorized to bind the Customer to this Agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

    Definitions
        Customer Data. “Customer Data” means any of Customer’s or its subscribers’ information, documents, or electronic files that are provided to Sonar or otherwise entered into, created by or uploaded into the Sonar System.
        Documentation. “Documentation” means any documentation provided by Sonar that information and/or instructions regarding the use and functionality of the Sonar System.
        Maintenance Windows. “Maintenance Windows” means collectively, the time periods for standard maintenance and emergency maintenance. Standard Maintenance Windows will be provided to Customer via email sent to all administrative users on the Customer’s account at least 72 hours in advance of the start of the standard maintenance window and will be between 11:00 pm and 5:00 am Central Time. Emergency maintenance will occur as needed. Sonar will make reasonable efforts to publish emergency maintenance windows on Sonar’s website in advance of the emergency Maintenance Window, but it is possible that advanced notification of an emergency Maintenance Window may not occur.
        Sonar System. “Sonar System” means the ISP Billing and OSS software service provided by Sonar for which Customer has paid, including any Updates relating thereto that may be provided hereunder.
        Update. “Update” means any patch, bug fix, release, version, modification or successor to the Sonar System.
        Subscriber. “Subscriber” means a subscriber of Customer whose subscription is billed and/or otherwise managed through the Sonar System.
        Effective Date. “Effective Date” is the date on which the Customer’s subscription to the Sonar System starts.
    License and Use
        License Grant. Sonar hereby grants to Customer a non­exclusive, non­transferable, non-sublicensable right to access and use the Sonar System beginning on the Effective Date.
        License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. Customer acknowledges and agrees that Sonar shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Sonar System and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer's Subscribers relating to the Sonar System.
        Customer Data. Customer owns all right, title and interest in and to the Customer Data. Customer hereby grants to Sonar, a non­exclusive, non­transferable right and license to use, copy, transmit, modify and display the Customer Data, together with the right to sublicense these rights to hosting, connectivity and telecommunications service providers to the extent reasonably necessary for the exercise and performance of Sonar’s rights and obligations hereunder. During the term of this Agreement, Customer shall have the right to export all Customer Data on the Sonar System in Sonar Comma Separated Value (CSV) format using the Sonar Application Programming Interface (“Sonar API”) or in report form using the report tool(s) in the Sonar System.
        No Sensitive Data; Customer Responsibilities. Customer is responsible for ensuring that all use and maintenance of Customer Data on or in connection with the Sonar System is in compliance with all applicable laws and governmental regulations. Customer acknowledges that Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
        Security. Customer assumes full responsibility for the security and maintenance of all Customer Data and any other information prior to its receipt by or storage in the Sonar System. Customer also assumes full responsibility for the security and maintenance of all Customer Data and any other information downloaded from the Sonar System. Customer shall use its reasonable best efforts, including reasonable security measures, to ensure that no unauthorized person may gain access to the Sonar System.
        Access. Customer is solely responsible for establishing access to the internet or other telecommunications system as may be necessary to interact with the Sonar System. Sonar does not represent or warrant the quality or speed of any connection to the Sonar System. Customer is also solely responsible for the selection, maintenance and use of any browser or other interface that may be necessary to interact with the Sonar System and Sonar does not represent or warrant that the Sonar System is compatible with any software or system other than that recommended or approved by Sonar.
        Proper Use. Customer agrees not use the Sonar System in any way that causes or may cause damage to the Sonar System or impairment of the availability or accessibility of the Sonar System. Customer agrees not to use the Sonar System in any way that is unlawful, illegal or fraudulent or in furtherance of any unlawful, illegal or fraudulent purpose or activity.
    Support
        Services Generally. Subject to the terms of this Agreement, Sonar shall use commercially reasonable efforts to make the Sonar System available to Customer.
        Error Correction. Sonar shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using commercially reasonable efforts during Sonar’s normal business hours. Customer shall provide such access, information, and support as Sonar may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors.
        Support Exclusions. Sonar is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
            The acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment;
            Any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Sonar’s firewall);
            Customer’s use of the Sonar System other than in accordance with the Documentation; or
            A Force Majeure Event.
        Support Fees. Sonar has the right to bill Customer at its standard services rates for any support issues excluded by Section 3(c) above, that have been pre­approved in writing (including in an email) by Customer.
    Sonar Representations and Warranties
        Sonar shall use commercially reasonable efforts to:
            Keep Customer Data confidential;
            Maintain appropriate security measures against unlawful and unauthorized access to the Sonar System and Customer Data;
            Comply with all applicable laws and governmental regulations;
            Conform the Sonar System to any published specifications or documentation;
            Maintain the Sonar System free from viruses, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
            Promptly correct any reported or discovered bugs, errors or defects in the Sonar System.
    Customer Acknowledgements.
        Customer acknowledges that:
            The Sonar System is not intended for use with protected health information under HIPAA. All credit card and other financial information maintained on the Sonar System is tokenized and/or encrypted. Apart from such tokenization and/or encryption, Customer assumes all risk arising from use of any such sensitive information with the Sonar System, including the risk of inadvertent disclosure or unauthorized access thereto;
            Complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure; and
            Sonar may at any time suspend Customer access to the Sonar System in the event of violation of these terms and conditions including but not limited to known or suspected legal or regulatory violations.
    Limitations, Disclaimers and Indemnification.
        Limitations of Liability. Sonar shall have no liability for any failure to satisfy its representations, warranties or obligations hereunder if such failure is attributable, in whole or in part, to: (i) Customer’s failure to use any bug fixes, corrections, patches, updates, upgrades or new or corrected versions of the Sonar System or documentation made available by Sonar, (ii) use of the Sonar System by Customer for any purpose other than that authorized in this Agreement, (iii) use of the Sonar System in combination with other software, data or products that are defective, incompatible with, or not authorized in writing by Sonar for use with the Sonar System, (iv) misuse of the Sonar System by Customer, (v) any malfunction of your software, hardware, computers, computer-related equipment or network connection, or (vi) a Force Majeure Event.

        SONAR IS NOT LIABLE OR RESPONSIBLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT, EVEN IF SONAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, WHETHER ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE OR OTHERWISE. UNLESS OTHERWISE SPECIFICALLY STATED, ALL REMEDIES AVAILABLE UNDER THIS AGREEMENT AND ALL REMEDIES PROVIDED BY LAW, WILL BE DEEMED CUMULATIVE AND NOT EXCLUSIVE. REGARDLESS OF THE FORM OF ANY CLAIM YOU MAY HAVE ARISING UNDER OR RELATING TO THIS AGREEMENT, SONAR’S LIABILITY FOR ANY DAMAGES SHALL NOT EXCEED THE FEES YOU HAVE PAID TO SONAR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
        Disclaimer. THE FOREGOING WARRANTIES AND/OR REPRESENTATIONS ARE EXCLUSIVE AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS AND IMPLIED, WHICH ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF A USE IN TRADE OR COURSE OF DEALING OR PERFORMANCE. SONAR DOES NOT WARRANT (i) THAT ACCESS TO OR USE OF ALL OR ANY PART OF THE SONAR SYSTEM WILL BE CONTINUOUS, ERROR- FREE OR UNINTERRUPTED, (ii) THAT THE RESULTS ARISING OUT OF YOUR USE OF THE SONAR SYSTEM WILL BE ACCURATE, COMPLETE OR ERROR-FREE, OR (iii) THAT THE SONAR SYSTEM WILL MEET YOUR NEEDS.
        Indemnification
            Customer’s Indemnification. Customer will indemnify, defend, and hold harmless Sonar from and against any and all liability, damage, loss or expense (including reasonable attorneys’ fees) arising out of (i) any claim, demand, action or proceeding, statutory or otherwise, based on allegations arising as a result of use of the Sonar System in a manner not expressly described or permitted by this Agreement, (ii) use of the Sonar System in any unlawful manner or for any unlawful purpose, (iii) breach or alleged breach of this Agreement by Customer or its personnel, (iv) Sonar’s use of Customer Data as permitted by this Agreement that infringes any third party Intellectual Property, or (v) Sonar’s use of Customer Data as permitted by this Agreement that violates the privacy rights or the rights to Personally Identifiable Information of a third party.
            Sonar’s Indemnification. Sonar will, at its own expense (including payment of attorneys' fees), defend Customer in the event that any suit is brought against Customer based on a claim from a third party that Customer’s use of the Sonar System permitted by this Agreement directly infringes any valid U.S. Intellectual Property right and shall indemnify Customer from any amounts assessed against it in a resulting judgment or settlement of such claims. Sonar will not be liable for any cost or expense of defense Customer incurs in connection with any such suit or claim, without Sonar’s prior written consent.

            Notwithstanding the foregoing, Sonar has no obligations under this Section in the event any infringement claim is solely or in part based upon or arising out of (i) any modification or alteration to the Sonar System made by Customer, (ii) any combination or use of the Sonar System with products, hardware or services not supplied by Sonar or approved in writing by Sonar in advance of such combination, (iii) Customer’s continuance of allegedly infringing activity after being notified of such activity, or after being informed of modifications that would have avoided the alleged infringement, (iv) Customer’s failure to use corrections or enhancements made available by Sonar, (v) use of the Sonar System in manner not in accordance with the applicable documentation or outside the scope of this Agreement, (vi) Customer’s use of the Sonar System in an otherwise patented processes or business method, or (vii) the use of the Sonar System in a manner for which it was neither designed nor contemplated.
            Notification. The indemnification obligations set forth above will apply only if and to the extent (i) the indemnified party gives prompt written notice to the indemnifying party of the assertion of any such claims, demands, action or proceeding, (ii) the indemnifying party has the right to select counsel and control the defense and all negotiations for settlement thereof and (iii) the indemnified party provides all reasonable information, assistance and cooperation required to defend such claim, demand, action or proceeding. The indemnifying party shall not settle or dispose of any such claim, demand, action or proceeding without written notification to the indemnified party provided the settlement or disposal materially adversely impacts the indemnified party.
    Service Level Requirements
        Availability. Availability of the Sonar System shall exceed 99.99%, excluding planned downtime for maintenance events. Planned downtime shall not exceed 4 hours in any 24-hour period and shall be performed during the Maintenance Window. Sonar will credit Customer for all downtime in excess of 0.01% (“Excess System Downtime”) calculated by taking the previous months payment, determining the 'per minute' rate from that payment and then applying a credit at that rate to every minute of Excess System Downtime.
        Hosting Environment. The Sonar System will be hosted in physical facilities that meet industry standards for power and cooling technologies and fire suppression systems and other environmental controls.
        Security. The Sonar System shall use industry-standard system security, including without limitation firewall and intrusion detection, and 128 bit encryption via HTTPS/SSL protocols, and industry-standard antivirus software and procedures.
        Backups. Sonar will perform constant, streaming backups of Customer Data to an offsite data center. Other files will be backed up every thirty (30) minutes. Customer Data and other files will be restored at no charge to Customer if corrupted or lost as a result of errors, bugs or other fault in or caused by the Sonar System. Any other restoration will be undertaken by Sonar, upon request, at the then current charge rate set forth on the Sonar website.
        Updates. Sonar will perform all software updates and maintenance without end-user intervention as deemed necessary by Sonar.
    Term and Termination.
        Term. The term of this Agreement shall be for one (1) month and will begin upon Sonar's receipt of your full payment of the applicable start-up fees. Such term shall automatically renew for subsequent terms of equal length, unless previously terminated by either party pursuant to Section 8(b), hereof.
        Termination. Either party may terminate this Agreement immediately at any time upon written notice to the other in the event of a breach of a material provision of this Agreement. Sonar may immediately suspend this Agreement, and access to the Sonar System in the event it reasonably suspects a material breach of a provision of this Agreement, including without limitation a failure to pay any amount due and owing. Sonar will use commercially reasonable efforts to notify Customer of such suspension as soon as practicable. Either party may immediately terminate this Agreement in the event the other party (i) files for, or has filed against it, a bankruptcy petition, and such petition is not dismissed within sixty (60) days of the filing date; or (ii) ceases to conduct business in the normal course, (iii) makes an assignment for the benefit of its creditors, (iv) is liquidated or otherwise dissolved, (v) becomes insolvent or unable to pay its debts in the normal course, or (vi) has a receiver, trustee or custodian appointed for it. Customer may provide notice of termination of this Agreement at any time, for any reason, which termination shall be deemed effective at the end of the then current monthly term. Sonar, may terminate this Agreement for any reason, by giving notice of termination to Customer thirty (30) days prior to the expiration of the then-current monthly term.
        Rights After Expiration or Termination. Upon expiration or termination of this Agreement, Sonar will immediately terminate Customer’s use of the Sonar System. Customer shall have ten (10) days to extract any Customer Data residing on the Sonar System. Within thirty (30) days of termination or expiration of this Agreement, Sonar shall delete all Client Data obtained or shared during the course of the Agreement. Immediately upon any termination or expiration of this Agreement, Customer must return to Sonar (or destroy at Sonar’s option) any Documentation, whether in written or electronic form, and certify in writing such return or destruction. After notice of termination, but before the date of termination, Customer shall have the right to request Sonar to provide Customer, at no charge, a copy of all Customer Data in Sonar CSV format (“Customer Data Export”). Sonar shall provide any timely requested Customer Data Export within sixty (60) days of such request.
    Fees and Billing
        Monthly Billing. Sonar shall bill Customer on a monthly basis for all use of the Sonar System. Such bills shall be sent to Customer on the first day of each month and are due and payable upon receipt. Any payment not received by Sonar by the twentieth (20th) day of the month , shall be subject to a late charge of $40 and shall accrue interest at a rate of 1%, unless otherwise agreed upon.
        Charge Basis. Charges on each bill shall be determined based on the peak number of active subscribers in existence in Customer’s account in the Sonar System during the prior month.
        Rates. Charges shall be based on the then current charge rates set forth on the Sonar website.
    General Provisions
        Assignment. This Agreement will inure to the benefit of and be binding upon both parties and their permitted successors and assigns. Notwithstanding the foregoing, Customer may not assign or otherwise transfer this Agreement or its rights and obligations under this Agreement without the prior written consent of Sonar. Sonar may assign and/or transfer this Agreement or its rights and obligations under this Agreement at any time, to any entity that acquires all or substantially all of Sonar’s assets.
        Modification and Waiver; Severability. Any modifications of this Agreement must be in writing and signed by both parties. A waiver by either party of a term or condition will not be deemed a waiver of any other or subsequent term or condition. Should any arbitrator or court of competent jurisdiction determine that any term or provision of this Agreement is unenforceable, or otherwise invalid, the offending term or provision will be modified to the minimum extent necessary to render it enforceable. If such modification is not possible, the term or provision will be severed from this Agreement with the remaining terms to be enforced to the fullest extent possible under the law.
        Force Majeure. Except for a party’s payment obligations hereunder, neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach thereof are delay or prevented by reason of any act of God, government, fire, natural disaster, accident, terrorism, network or telecommunication system failure, sabotage or any other cause beyond the control of such party (“Force Majeure Event”), provided that such party promptly gives the other party written notice of such Force Majeure Event.
        Independent Contractors. The parties will be deemed to have the status of independent contractors, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, or partners or joint ventures. Neither party has the authority to bind, commit or make any representations, claims or warranties on behalf of the other party without obtaining the other party’s prior written approval.
        Notices. Any notices provided under this Agreement will be in writing in the English language and will be deemed to have been properly given if delivered personally or if sent by: (i) a recognized overnight courier; (ii) certified or registered mail, postage prepaid, return receipt requested; or (iii) facsimile, if confirmed by mail. Sonar’s address for such notices is set forth below. Customer’s address for such notices will be the address on file with Sonar as provided by Customer. Such address or contact information may be revised from time to time by provision of notice as described in this Section. All notices sent by overnight courier will be deemed given on the next business day after deposit with the overnight courier. All notices sent by facsimile will be deemed given on the next business day after successful transmission. All notices sent by certified or registered mail shall be deemed given five (5) business days from the date of mailing unless the intended recipient can demonstrate, by written records, that the notice was not the subject of at least one delivery attempt.
        Notice Address. Sonar Software, Inc. PO Box 270191, West Allis, WI, 53227, USA.
        Governing Law and Dispute Resolution. This Agreement is to be construed and governed by the laws of the United States and the State of Wisconsin, without regard to conflict of laws provisions. Any dispute arising out of or in connection with this Agreement, must be brought exclusively in the appropriate court located in Milwaukee County, Wisconsin, and you expressly waive any and all objections regarding jurisdiction and forum non conviens. The prevailing party in any dispute brought in a court of law will be entitled to recover its reasonable attorneys’ fees and costs.
        Electronic Signatures. Facsimile signatures or any other form of electronic signatures are binding and fully enforceable to the same extent as written signatures. Customer understand and acknowledges that its act of accessing or using the Sonar System constitutes Customer’s electronic signature and consent to the terms of this Agreement.
        Entire Agreement. This document constitutes the entire agreement between Customer and Sonar with respect to the subject matter discussed above. This Agreement supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding this subject matter.

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