SonicSpec, Inc. Terms of Service Agreement

Last updated: June 21, 2023

‍PLEASE READ THE FOLLOWING TERMS OF SERVICE ("AGREEMENT") CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU ("USER") AND SONICSPEC, INC. ("WE," "US,""OUR"). 

1. Acceptance of Terms By using our web-based Software as a Service (SaaS) product, you signify your agreement to these terms. If you do not agree to these terms, you may not use our services.

2. Description of Service We provide a web-based Software as a Service solution (the "Service"), intended to help users analyze and interpret specifications. This Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and we are not responsible for any delays, failures, or other damage resulting from such problems.

3. Specification Interpretation Limitation While the Service is intended to assist with the analysis and interpretation of specifications, SonicSpec, Inc. does not guarantee the accuracy or correctness of the interpretation results and is not responsible for any interpretation errors. SonicSpec, Inc. shall not be liable for any financial or other damages that occur as a result of a specification interpretation error.

4. Registration and User Information You are responsible for maintaining the confidentiality of your login, and you are fully responsible for all activities that occur under your account. You agree to (a) immediately notify us of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session.

5. Ownership and License to Content

‍(a) Exclusive Ownership: Except for the rights and licenses granted in the Agreement, you acknowledge and agree that we and our licensors own (and will own) any and all intellectual property rights in and to: (i) the SonicSpec Solution; (ii) the De-Identified Information; (iii) anything developed or delivered by or on behalf of SonicSpec under the Agreement; (iv) Feedback; and (v) any modifications, improvements, customizations, updates, enhancements, aggregations, compilations, translations, adaptations, or derivative works in the foregoing subsections (i) through (iv) (together, the "SonicSpec Property"). All rights not expressly granted by us under the Agreement are reserved.

(b) Content: As between you and SonicSpec, you own any and all intellectual property rights in and to the content you provide, create, store, and process through the SonicSpec Platform (the "Content"). You hereby grant SonicSpec a worldwide, royalty-free, fully paid-up, non-exclusive license during the Term to host, collect, use, and store the Content: (i) for the purpose of making available the SonicSpec Solution to you and to provide related services to you; (ii) to exercise our rights and perform our obligations under the Agreement; and (iii) to generate anonymized and aggregated information to enable us to monitor the performance, use, and stability of the SonicSpec Platform, and to improve the SonicSpec Solution (the "De-Identified Information").

6. Confidentiality

‍(a) Confidentiality: "Confidential Information" means information of a Party (the "Disclosing Party") that the other Party (the "Receiving Party") receives in connection with the provision or receipt of the SonicSpec Solution under the Agreement, which based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential to the Disclosing Party, including, with respect to you, your Content and Personal Information, and with respect to SonicSpec, information concerning SonicSpec Property and the provisions of the Agreement. Notwithstanding the foregoing, Confidential Information (other than Personal Information) does not include information that is: (i) previously known to the Receiving Party prior to disclosure by the Disclosing Party, without any obligation of confidentiality; (ii) publicly known or becomes publicly known through no breach of the Agreement by the Receiving Party; (iii) rightfully received from a third party under no confidentiality obligation with respect to the Confidential Information; and (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.

(b) Obligation to Protect Confidential Information: A Receiving Party will: (i) limit access and use of Disclosing Party’s Confidential Information to those of the Receiving Party’s employees and agents that require such access and use in connection with the Agreement; (ii) not disclose the Disclosing Party’s Confidential Information to third parties, unless authorized pursuant to this Section 6; (iii) protect the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to exercise its rights or perform its obligations hereunder or as otherwise specifically permitted by the other Party.

(c) Permitted Disclosures: The Receiving Party may disclose Disclosing Party’s Confidential Information:(i) if and to the extent required by a Governmental or Regulatory Authority or otherwise as required by Applicable Law, provided that the Receiving Party must first give the Disclosing Party notice of such compelled disclosure (except where prohibited by Applicable Law from doing so) and must use commercially reasonable efforts to provide the Disclosing Party, unless prohibited by Applicable Law, with an opportunity to take such steps as you desire to challenge or contest such disclosure or seek a protective order. Thereafter, the Receiving Party may disclose the applicable Confidential Information, but only to the extent required by the applicable Governmental or Regulatory Authority or Applicable Law and subject to any protective order that applies to such disclosure; and (ii) to: (A) the Receiving Party’s accountants, auditors, legal counsel, and other professional advisors if and to the extent that such Persons need to know such Confidential Information in order to provide the applicable professional advisory services relating to its business; (B) Personnel if and to the extent that such Personnel need to know such Confidential Information for purposes relating to the provision of the SonicSpec Solution to you or the exercise of its rights under the Agreement; provided that such Person has entered into a written agreement with the Receiving Party that includes confidentiality obligations in respect of the Confidential Information that are no less stringent than those contained in the Agreement. We may also disclose your identity and the terms of the Agreement (if necessary), but not your Content, to potential permitted assignees or successors or partners if and to the extent that such Persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation, partnership, or other corporate transaction involving our business or assets, which Person shall be legally bound to protect such Confidential Information.

(d) Feedback: If you provide suggestions, comments, and feedback regarding the SonicSpec Solution ("Feedback") you covenant that any Feedback provided by Customer or its Users, including, in each case all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of SonicSpec or its licensors. Customer hereby assigns to SonicSpec all of its right, title, and interest in and to any Feedback, including all intellectual property rights therein or relating thereto. The Parties acknowledge and agree that the Feedback shall not contain any Content.

7. Network Security and Data Breach

‍(a) We will use commercially reasonable physical, organizational, and technical measures to protect your Confidential Information against unlawful access, use, or disclosure.

(b) Despite such efforts, you acknowledge that our collection, storage, use, and disclosure of Content and Personal Information as contemplated hereunder, will involve transmission over the Internet and over various networks, only part of which may be owned or operated by us. Customer acknowledges and understands that Content or Personal Information may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, or other electronic means. We are not responsible for any Content or Personal Information that is delayed, lost, destroyed, altered, intercepted, or stored during the transmission of such data across network infrastructure not owned or operated by us, including the Internet, third party websites, or your or Users’ local networks. You agree that we are not in any way responsible for any interference with your or you Users’ use of or access to the SonicSpec Solution via such means or security breaches arising from or attributable to such network infrastructure and, to the fullest extent permitted by Applicable Law, you waive any and all claims against us in connection therewith.

8. Fees and Payment Terms Unless otherwise set out in the Order Form:

(a) Fees, Payment & Charges. You will pay the applicable fees set out in the Order Form, online payment form, our invoices to you or as otherwise agreed pursuant to the Agreement (the “Fees”). We reserve the right to change the Fees for any Renewal Term by providing you with not less than 30 days’ notice prior to the commencement of each Renewal Term, provided that we will not increase the Fees by more than the then-current list prices at which we generally make available the SonicSpec Solution to our customers. All Fees are non-refundable, except where you terminate the Agreement for our uncured material breach pursuant to Section 9(b), in which case we will provide you with a refund for any prepaid Fees on a pro-rata basis calculated from the effective date of termination. In the event that Customer requires a Purchase Order number issued prior to payment of any SonicSpec invoices issued pursuant to the applicable Order Form, then such Purchase Order number must be provided to SonicSpec prior to the activation of the SonicSpec Solution. Customer’s execution and return of the applicable Order Form to SonicSpec without designating a Purchase Order number is deemed an acknowledgment that no purchase order is required for payment of invoices hereunder. Terms, provisions or conditions on any Purchase Order, if any, together with any acknowledgments or other business processes, forms or writing that Customer may use or require in connection with the provision of the SonicSpec Solution from SonicSpec are of no force and effect and will have no effect on the rights, duties and obligations of the Parties hereunder, regardless of any failure of SonicSpec to object to such matters.

(b) Invoicing. We will send you an invoice for any Fees that become due and payable. You will pay all invoiced amounts in accordance with the terms set out in the Order Form, or in the absence of an Order Form, as referenced in each invoice.

(c) Set-off; Suspension Rights and Additional Costs for Late Payment. You may not withhold or setoff any amounts due under the Agreement. We reserve the right to suspend your access to the SonicSpec Solution, after providing written notice of overdue payment, until all due amounts are paid in full. To offset our additional processing costs arising from late payment, we may invoice you for reasonable administrative charges as set from time to time for administrative or account activities, including collection efforts due to non-payment, bounced checks or rejected payments.

(d) Credit Card Payments. If we permit you to pay the Fees through your credit cards, your use of the SonicSpec Solution will be subject to any applicable credit card fees.

(e) Taxes. The Fees and any other amounts quoted in the Agreement do not include tax. You are responsible for paying all governmental sales, use, value-added, commodity, harmonized and other taxes imposed on your access to and use of the SonicSpec Solution, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the Agreement, other than taxes based on our net income or profits. To the extent we are required to collect such taxes, the applicable tax will be added to your invoice.

9. Term and Termination

(a) Term. The Agreement will commence on the Effective Date and will continue throughout the Initial Term, and thereafter, will automatically renew for successive one month or one year periods, except as otherwise agreed in the Order Form (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless and until: (i) the Agreement is terminated or expires pursuant to this Section 9; or (ii) either Party notifies the other Party of its intention not to renew the Agreement, which notice must be provided no less than 30 days prior to the date of expiry of the Initial Term or any then-current Renewal Term, unless the term is a one month term or otherwise agreed.

(b) Termination for Cause. Either Party may terminate the Agreement for cause if the other Party commits a material breach of a material provision of the Agreement, and fails, within 30 days after receipt of notice of such breach, to cure such breach, except that a Party may terminate the Agreement for cause with immediate effect if such breach is not capable of remedy or if you breach any Use Restriction.

(c) Termination for Convenience by You. If you wish to terminate the Agreement, you can do so at any time by e-mailing us at support@sonicspec.com. If you terminate for convenience, all outstanding Fees for the unexpired portions of the then-current Initial Term or Renewal Term will become immediately due and payable, irrespective of the payment frequency or other payment terms set out in the Order Form. If you have pre-paid the Fees for a portion of the Term, such pre-paid Fees will not be repayable by us.

(d) Other Termination by Us. We may immediately terminate the Agreement (in whole or in part) on written notice to you if the provision of the SonicSpec Solution becomes, in our opinion, prohibited under Applicable Law or to comply with an order of a Governmental or Regulatory Authority requiring us to cease making available the SonicSpec Solution to you, in which case your sole and exclusive remedy will be to receive a refund of any pre-paid Fees attributable to the period after the effective date of termination.

(e) Effect of Termination. Upon expiration or termination of the Agreement your access to and rights to use the SonicSpec Solution will immediately terminate. Upon payment of all applicable Fees under the Agreement and provided that you notify us within 30 days of the effective date of termination or expiry of the Agreement, you may request and receive a copy of your Content and Personal Information from the SonicSpec Platform (subject to a legal requirement to maintain such information), and we will use commercially reasonable efforts to fulfill such request within 30 days of your request in either Microsoft Word or Excel file formats. If you do not notify us within 30 days of the effective date of termination or expiry of the Agreement your Content will be deleted.

(f) Survival. The following Sections, together with any other provision of the Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 5 (Ownership and License to Content), Section 6 (Confidentiality), Section 7 (Network Security and Data Breach), Section 8 (Fees and Payment Terms), Section 10 (Indemnification), Section 11 (Warranties; Disclaimers; Limitation of Liabilities), this Section 9(f) (Survival), and Section 12 (General Terms).

10. Indemnification

(a) Your Indemnity to Us. You will defend and hold harmless us and our affiliates, employees, officers, directors, agents, successors and assigns, at your own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) your Content; (ii) your violation of any third party rights (including third party intellectual property rights or privacy rights); and (iii) your use of the SonicSpec Solution contrary to the Agreement.

(b) Our Indemnity to You. We will defend and hold harmless you and your employees, officers, directors, agents, successors and assigns, at our own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any third party claims that your use of the SonicSpec Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party under the laws of the United States (“Infringement Claim”). In the event of an Infringement Claim, or if SonicSpec reasonably believes the SonicSpec Platform may infringe or misappropriate, SonicSpec may in its discretion and at no cost to Customer (i) modify the SonicSpec Platform so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the SonicSpec Platform in accordance with this Agreement, or (iii) terminate the applicable Order Form for the SonicSpec Solution upon written notice and refund to Customer any prepaid Fees covering the remainder of the term of such Order Forms after the effective date of termination. This section 10(b) states SonicSpec’s sole liability to, and Customer’s exclusive remedy, in respect of any Infringement Claim.

(c) Indemnification Procedures. The indemnifying Party under Section 10(a) or 10(b), as applicable, will pay all damages finally awarded by a court of competent jurisdiction to the third party claimant or any settlement amounts agreed by the indemnifying Party along with all fees, costs and expenses (including reasonable attorneys’ fees) incurred. The indemnifying Party’s obligations under this Section 10 are subject to the condition that the indemnified Party will: (i) notify the indemnifying Party promptly of any claims within 10 days of being served with a claim; and (ii) permit the indemnifying Party to control the defense and settlement of such claims (provided that the indemnifying Party will not settle or compromise any claim that requires the indemnified Party to make any admission of liability or take any actions, without the indemnified Party’s consent). Without limiting the foregoing, the indemnified Party will assist and cooperate with the indemnifying Party, as requested by the indemnifying Party at the indemnifying Party’s expense, in defending or settling the applicable claim.

11. Warranties; Disclaimers; Limitation of Liability

(a) Your Warranties. You covenant, represent and warrant to us that: (i) the Content you provide to us or through the SonicSpec Platform will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by Applicable Law, to enable us to provide the SonicSpec Solution to you and your users; (ii) the Content will not infringe, violate or misappropriate the rights of any third parties, including the intellectual property rights and moral rights of such third parties; and (iii) you will, at all times, comply with Applicable Law in connection with your use of the SonicSpec Platform.

(b) Our Warranties. We hereby covenant and warrant to you that: (i) we have the right to make available to you the SonicSpec Platform under the terms of the Agreement; and (ii) the User Support Services will be performed in a professional and workman-like manner; and (iii) we will, at all times, comply with Applicable Law in connection with providing the SonicSpec Platform. You acknowledge and agree that your right to terminate the Agreement pursuant to Section 9(b) will be the sole and exclusive remedy for any breach of Sections 11(b) (i) and (ii).

(c) DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THE AGREEMENT, THE SONICSPEC SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WE DO NOT MAKE ANY EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SONICSPEC SOLUTION, INCLUDING ANY WARRANTIES OR CONDITIONS OF QUALITY, RELIABILITY, COMPATIBILITY, PERFORMANCE, INTEGRITY OF DATA, SECURITY, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING. SONICSPEC FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SONICSPEC SOLUTION WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT DATA LOSS (INCLUDING PACKET LOSS).

(d) Limitation of Liability – Type. To the maximum extent permitted by Applicable Law, neither Party nor any of its affiliates, licensors or subcontractors will have any liability to the other or any other Person or entity under the Agreement for: (i) any indirect, reliance, incidental, special, punitive, exemplary or consequential damages; (ii) loss of revenue or profit, loss of or damage to data, business interruption, replacement or recovery costs (whether direct or indirect losses); or (iii) any third party breach pursuant to Section 7(b), or any other unauthorized access to the SonicSpec Solution and Content (except to the extent that such unauthorized access is directly attributable to our gross negligence or willful misconduct) (whether direct or indirect losses); in each case, whether arising from contract, equity, tort (including negligence or strict liability) or any other theory of liability, even if a Party has been advised of the possibility of such damages, or they are foreseeable.

(e) Limitation of Liability – Amount. To the maximum extent permitted by Applicable Law, in no event will either Party’s (including its licensors and subcontractors) total aggregate liability to the other Party arising out of or related to the Agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by you hereunder in the 12 months preceding the incident giving rise to the claim.

(f) Fair Allocation of Risk. The disclaimer of representations, warranties and conditions and limitation of liability constitute an essential part of the Agreement and reflect a fair allocation of risk between us. You acknowledge and agree that but for the disclaimer of representations, warranties and conditions and limitation of liability, neither SonicSpec nor any of its licensors would enter into (including granting the rights granted in) the Agreement.

12. General Terms

(a) Notices. Notices sent to either Party will be effective when received by the other Party. Notices must be in writing and sent to the other Party’s address or email set forth in the Order Form. You will notify us of any changes if your contact for notices changes.

(b) Construction. Except as otherwise provided in the Agreement, each of our rights and remedies under the Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect to SonicSpec in the Agreement, means our right to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain our decision.

(c) Subcontractors. We may use subcontractors and sub-processors to assist us with the provision of the SonicSpec Solution to you, including the hosting and back-up of your Content.

(d) Independent Contractors. The Agreement does not create a partnership, agency, franchise, joint venture or employment relationship between the Parties. Our relationship to you is that of an independent contractor and neither of us will have, or will represent to any third party that it has, any authority to act on behalf of the other Party.

(e) Logos. You hereby grant us to the non-exclusive right and licence to use your name, logo, trademark and tradenames (the “Client Brand”) for sales and marketing purposes to reference you as our customer, including on our Website. For the avoidance of doubt, we will not use your Client Brand for any other purposes without your prior consent.

(f) Force Majeure. Neither you (except for payment due under the Agreement) nor us will be liable for delays caused by any event or circumstance beyond our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.

(g) Severability. If any term or provision hereof be deemed unlawful, invalid, void or un-enforceable by a court of competent jurisdiction, either in its entirety or in a particular application, the remainder of the Agreement will nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement.

(h) Export Control. Use of the SonicSpec Platform may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations that may apply to the SonicSpec Platform.

(i) Applicable Law and Venue. This Agreement shall be governed by the laws of the state of Delaware, without regard to the conflict of laws principles thereof.

(j) Entire Agreement. The Agreement constitutes the entire agreement governing your use of the SonicSpec Solution between us and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral, including any non-disclosure agreements. The Agreement will not be modified except by written agreement of the Parties or by us to the extent set out in the Agreement.

(k) Waiver. Our failure to exercise or enforce any right or provision under the Agreement will not constitute a waiver of such right or provision.

(l) Assignment. Neither Party may assign any part of the Agreement or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without the other Party’s prior written consent. Notwithstanding the foregoing, either Party (“Assigning Party“) may assign this Agreement without the other Party’s (“Assignee Party“) consent in the event of a sale of all or substantially all of its assets or in the event of a merger, corporate reorganization or business consolidation of the Party so long as such assignment is not to a competitor of the Assignee Party. In the event any assignment is to a competitor of Assignee Party, the Assignee Party has the right to promptly terminate the Agreement and provide / receive (as the case may be), a prorated refund of pre-paid unused fees from the date of termination. Any assignment in violation of this Section will be void. The Agreement will ensure to the benefit of, and be binding upon, each of us and each of our permitted successors and assigns.

(m) Order of Precedence. To the extent of any conflict or inconsistency between these Terms and Conditions and the terms and conditions in the Order Form, the terms and conditions in the Order Form will prevail to the extent of such conflict or inconsistency.

13. Contact Information

‍If you have any questions or need further information as to the Site or Service, or need to notify SonicSpec as to any matters relating to the Site or Service please direct such correspondence to SonicSpec, Inc., at info@sonicspec.com.

Appendix 1

Definitions

1. Defined Terms

(a) “SonicSpec Platform” means our specification automation Software as a Service platform.

(b) “SonicSpec Solution” means the SonicSpec Platform, the User Support Services and the Online Resources.

(c) “Order Form” if applicable, means the order form agreed by you and us detailing the commercial terms governing your access to or use of the SonicSpec Platform. If no order form was used, the terms of this Agreement shall detail the commercial terms governing your access to or use of the SonicSpec Platform.