This Master Subscription Agreement (“MSA” or “Agreement”), in addition to the applicable Order Form, sets forth the terms and conditions of your use of the Services offered by Sonalife Connect Limited (“Sonalife”). Sonalife and Customer may individually be referred to as a “party” and collectively “the parties.” This Agreement is effective as of the date that you sign up for any Service online or submit an Order Form that references this Agreement (the “Effective Date”). By accepting Agreement, either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organisation, business, or other legal entity for which you act (“Customer,” “you,” or “your); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
BY ACCEPTING THIS MSA, AS DESCRIBED ABOVE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS MSA AND ANY OTHER AGREEMENT REFERRED IN THE ORDER FORM. THE PARTIES AGREE ON THE FOLLOWING:
1. DEFINITIONS
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Credentials” means both email (“Email”) and associated password (“Password”) of Users created either directly through the Services or available through single sign on functionality where relevant.
“Data” means all personal identification electronic data or information input or submitted by you or Users to the Service but excluding Publications.
“End-User(s)” means a single individual whose Data is stored by you in the Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Party” means Sonalife or Customer when referred to individually and “Parties” when referred to collectively.
”Order Form(s)” means the ordering document(s) for placing an order with Sonalife for Services.
“Publications” means any content or information published in the Services by the Users, and visible to Users.
“Services” means the software as a service(s) provided by Sonalife to you.
“Subscription” means you agreeing to make a payment to Sonalife in order to have access to and utilise the Services for a specified period of time; a Subscription shall begin on the Subscription Start Date and end on the Subscription End Date as set forth in the applicable Order Form.
“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.
“User(s)” means any person authorised by You to access the Service provided such person agrees to be bound by the terms and conditions of this Agreement .
“you” or “your” or “Customer” refers to the individual or entity that has ordered software as a service from Sonalife or an authorised business units of Customer identified in an Order Form.
2. RIGHTS GRANTED AND OTHER SERVICES
2.1. Rights Granted. Upon Sonalife’s acceptance of your Order Form, you have the nonexclusive, non-assignable, worldwide limited right to use the Services set forth in an applicable Order Form and subject to the terms and limitations set forth in the applicable Order Form, this MSA and any other agreements referenced in the applicable Order Form and this Agreement. You shall only permit User access through a browser interface or the SonalifeConnect App with User Credentials. You may establish such User accounts as you deem necessary subject to the terms of this MSA and applicable Order Form. You will require each User to keep passwords used to access the Services confidential and not authorise any third party to access or use the Services on their behalf. Upon the expiry or termination of your Subscription, or the Order Form, your right to access or use the Services specified in the Order Form shall terminate.
2.2. Add-ons to the Subscription. Additional Users or add-on features in the Services may be purchased during an unexpired Subscription term at a price to be mutually agreed in writing. Such add-ons shall terminate on the same date as the expiry or termination of the Subscription.
2.3. Restrictions. You shall not (a) make the Service available to anyone other than Users or allow the Service to be utilised in excess of the limitations set forth in an Order Form or this MSA unless you pay any additional fees associated with such use; (b) directly or indirectly sell, resell, rent, sublicense or lease the Service; (c) interfere with or disrupt the integrity or performance of the Service or third-party services or data contained therein; (d) copy, modify or make derivative works of the Services; (e) reverse engineer, disassemble or reverse compile the Services; or (f) access or use the Services in order to: (i) design, develop, build, market or support a competitive product or service; (ii) design, develop, build, market or support a product using similar ideas, features, functions or graphics of the Services; (iii) copy any ideas, features, functions or graphics of the Services. You may not access the Service if you are a Sonalife competitor or a competitor of Sonalife’s sub-processors; (iv) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (v) use or permit use of the Service, including uploading, emailing, posting, publishing or otherwise transmitting any material, by anyone, including all Users, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights; (e) harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (f) use automated scripts to collect information from or otherwise interact with the Services; (g) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates of third party privacy rights; (h) use the Services to send or store material containing Malicious Code; or (i) otherwise violate applicable laws, ordinances or regulations. You agree to take commercially reasonable efforts to ensure that the Users comply with the terms of this Agreement, including this Section 2.3. In addition to any other rights afforded to Sonalife under the Order Form or this MSA, Sonalife reserves the right to remove or disable access to any Publications that violates the foregoing restrictions. Sonalife shall have no liability to you in the event Sonalife takes such action. You agree to defend and indemnify Sonalife and its licensors against any claim arising out of a violation of your obligations under this section.
2.4. Access and Maintenance. Sonalife shall: (i) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned downtime for maintenance of more than 15 minutes (for which Sonalife shall give reasonable notice via the Service or via email) and which Sonalife shall schedule, to the extent practicable, during non-peak usage hours; and (ii) provide the Service only in accordance with applicable laws and government regulations.
3. DATA AND PUBLICATIONS
3.1. Data. You hereby grant to Sonalife, and any third party Sonalife has contracted with to provide storage and processing services, a non-exclusive, non-transferable license to store, process and use any Publications, your Data and your Users’ Data for the purpose of providing the Services and for the purpose of generating Analytical Data as described at Section 3.2 below. You shall (a) be responsible for obtaining consent from the Users as necessary to store, process and use your Users’ Data in the Service, and each of your Users’ compliance with this MSA; (b) be responsible for the consent, accuracy, quality and legality of your and the Users’ Data and Publications and of the means by which you or they acquired such Data and Publications; (c) provide Sonalife such reasonable assistance as Sonalife may request in order to assist you on your integration of your Data into the Service, and (d) ensure that the Users shall comply with the relevant terms of this Agreement, applicable laws and government regulations. The terms of the data processing agreement at https://sonalife.ie/data-processing-agreement/ (“DPA”) shall apply to Sonalife’s Processing of Personal Data (as defined in the DPA).
3.2. Analytical Data. Customer acknowledges that Sonalife and its sub-processors may generate or develop information and data resulting from the manipulation or analysis of Publications, your Data or your Users’ Data based upon Sonalife’s operation and provision of the Services, along with any associated databases, external data, calculations and other processes or tools used in connection with the Services (collectively, the “Analytical Data”). Analytical Data shall be limited to aggregated, de-identified and statistical information collected from the operation of the Services and processing, manipulation and analysis of Users Data. Nothing herein shall be construed as prohibiting the use of Analytical Data, provided that: (a) any such data will be aggregated with other customer data, and (b) any use of such Analytical Data will not (i) reveal or be capable of revealing your identity, whether directly or indirectly, to any third party or (ii) reveal or be capable of revealing the identity, whether directly or indirectly, of any User or other individual, or of revealing any specific data entered by a User or other individual into the Services. In no event will Analytical Data include your Confidential Information.
4. NON-SONALIFE PROVIDERS
4.1. Use of Non-Sonalife Applications, Products and Services. Now or in the future, the Services may enable you to utilise applications, products or services from third parties (“Third-Party Services”). Such Third-Party Services shall be deemed to be incorporated within the Services for the purposes of this MSA and shall be incorporated into the license grant set forth herein, except to the extent either (i) expressly provided to the contrary in this Agreement or an Order Form, or (ii) a User is required to enter into separate agreement relating to such Third-Party Services. If you enable Non-Sonalife applications, products or services (“Non-Sonalife Services”) for use with the Service, you acknowledge and agree that the Service may allow the providers of those Non-Sonalife Services to access or use your Data. Sonalife is not responsible for any use by you of such Third-Party Services or Non-Sonalife Services, or the disclosure, modification or deletion of your Data resulting from any such access or use. Any access to or exchange of content or data between you and any Third Parties Services or Non-Sonalife Services, is solely between you and them and you bear all risks associated with such access and use. Sonalife does not provide any warranties for such Third-Parties Services or Non-Sonalife Services. The purchase of Non-Sonalife Services is not required to use the Service, except a supported computing device, operating system, web browser and internet connection. Notwithstanding the foregoing, The Service may contain features designed to interoperate with Non-Sonalife applications. To use such features, you may be required to obtain access to such Non-Sonalife applications from their providers. If the provider of any such Non-Sonalife application ceases to make the Non-Sonalife application available for interoperation with the corresponding Service features on reasonable terms, Sonalife may cease providing such Service features without entitling you to any refund, credit, or other compensation.
5. FEES AND PAYMENT
5.1. Fees. Unless otherwise provided in an applicable Order Form, Sonalife shall invoice you in advance for any Services you purchase. All fees are invoiced at the time the Order Form is signed by you. Unless stated otherwise in an Order Form, you shall pay all amounts within thirty (30) days of the invoice date without setoff, counterclaim or deduction, except for amounts disputed in good faith. All payment obligations due under the applicable Order Form are non-cancelable and the fees paid are non-refundable. Renewal of any Services at the end of any Subscription term are invoiced on the anniversary date of the beginning of such Subscription term. Where applicable, fees do not include Apple and/or Google fees for your accounts on the App Store and/or Google Play. If you use online payment features, event booking fees and Stripe payment gateway fees will be charged for all payments made via Sonalife Services. These fees are in addition to the Subscription fees. All payments made under this Agreement shall be in the currency specified in the applicable Order Form. You are responsible for providing complete and accurate billing and contact information to Sonalife and notifying Sonalife of any changes to such information. Except for fees owed for exceeding the authorised number of Users, (i) fees are not based on actual usage of the Services or the actual number of Users accessing the Service, and (ii) quantities purchased cannot be decreased during the relevant Subscription term. If any fees are not received from you by the due date, then at Sonalife’s discretion, such fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.3. Suspension of Service and Acceleration. If any amount owing by you to Sonalife is more than twenty (20) days overdue, Sonalife may, without limiting or waiving Sonalife’s other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend the Service until such amounts are paid in full. Sonalife will give you at least five (5) days’ prior notice that your account is overdue, in accordance with Section 12.2, before suspending the Services. Further, you agree that prepayment of any unpaid fees will be required to restart any such suspended Service. In addition to the foregoing, you agree Sonalife shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from you.
5.4. Taxes. Unless otherwise stated, Sonalife’s fees do not include any Taxes. You are responsible for paying all Taxes associated with your purchases hereunder. If Sonalife has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide Sonalife with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Sonalife is solely responsible for taxes assessable against it based on Sonalife’s income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in the Service. Subject to the rights and remedies expressly granted hereunder, Sonalife, its licensors and relevant suppliers reserve all rights, title and interest in and to the Service and related software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6.2. Your Applications and Code. If you, a third party acting on your behalf, or a User creates applications or program code using the Service, you authorise Sonalife, its licensors and relevant suppliers to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Sonalife to provide the Service.
6.3. Your Data. Subject to the limited rights granted by you hereunder, Sonalife acquires no right, title or interest from you or your Users in or to your or your Users’ Data, including any intellectual property rights therein. You shall acquire all rights necessary to allow use of your Data, User’s Data and Publications in the Service. You agree Sonalife is not responsible or liable to anyone for your or your Users’ Publications, content or messages channelled, transmitted, published or downloaded through the Services.
6.4. Ideas and Suggestions. Any ideas, know-how, techniques, developments and software which may be developed by Sonalife, its licensors or relevant suppliers at any time, including any enhancements or modifications made to the Services or any intellectual property developed by Sonalife, its licensors or relevant suppliers upon your or a Users’ request, shall be the exclusive property of Sonalife, its licensors or relevant suppliers, as applicable. Sonalife provides services and solutions to other customers that are similar to the services or solutions Sonalife may provide to you. Nothing in this Agreement is intended or should be interpreted to prevent or inhibit Sonalife from continuing or commencing to provide such services or solutions. Sonalife shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you or Users relating in any way to the development, use or operation of the Service.
7. CONFIDENTIALITY
You and Sonalife agree the parties may have access to information that is confidential to one another (“Confidential Information”). The Parties agree to disclose only information that is required for the performance of obligations under this MSA or Order Form. Confidential Information shall be limited to: (a) any software utilised by Sonalife in providing the Service, including source code, (b) the terms and pricing under this MSA and any Order Form, (c) future enhancements to existing Services, (d) your and Users’ Data residing in the Service environment, and (e) all information clearly identified as confidential at the time of disclosure, or that a reasonable person would consider confidential by virtue of its nature. A Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party. The receiving Party will protect the confidentiality of the disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own similar information, but in no event using less than a reasonable standard of care. We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorised disclosure in a manner no less protective than under this MSA. This Agreement will not prevent receiving party from disclosing the other party’s Confidential Information to a court or governmental body pursuant to a valid court order, Law, subpoena, or regulation, but only if receiving party: (1) gives prompt notice (or the maximum notice permitted under Law) before making the disclosure, unless prohibited by Law; (2) reasonably assists disclosing party, at disclosing party’s cost, in its lawful efforts to resist or limit such disclosure; and (3) discloses only that portion of disclosing party’s Confidential Information that is legally required to be disclosed. Upon written request, each Party shall return all copies of the documents and materials containing Confidential Information of the other Party upon termination of the Contract.
8. WARRANTIES AND DISCLAIMERS
8.1. Sonalife Warranties. Subject to the other provisions of this Section 9, Sonalife warrants during the Subscription that the Service will include the functionality set forth in substantial conformance with the Order Form. If the Services provided to you for any given month during the Subscription term did not perform as warranted, you must provide email notice to Sonalife as specified herein no later than three (3) days after the last day of that particular month. As your sole and exclusive remedy for any breach of the foregoing limited warranty, Sonalife will either, in its sole discretion, (i) use commercially reasonable efforts to remedy the nonconformity within a commercially reasonable period of time or (ii) terminate the applicable Order Form and refund the prepaid fees set forth therein for the unexpired remaining unused Subscription. Sonalife’s warranties set forth above shall not apply to any nonconformities with the warranty resulting from your or your Users’ acts or omissions or noncompliance with this Agreement or the materials for the Services or resulting from any hardware, software, data, materials or other products or services not developed or provided by Sonalife.
8.2. Your Warranties. You represent to Sonalife and agree that your purchases under the applicable Order Form and hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Sonalife regarding future functionality or features. You also represent to Sonalife and agree you have received all necessary information enabling you to assess the adequacy of the Services to fulfil your requirements. You also warrant and covenant that you have obtained or will obtain, as appropriate, any consents from Users or data subjects as necessary for your use of the Services, including, without limitation, (i) parental or guardian consent for Users under the age of 16, and (ii) consent for the Customer’s and Sonalife’s collection, use, and disclosure of Users’ Data subject to the limitations set forth in this MSA, and (iii) the tracking, recording, processing and use of your Data and Users’ Data and other information relating to Users’ use of the Services as described in this Agreement.
8.3. Disclaimer. THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, SONALIFE DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE). WITHOUT LIMITING THE ABOVE, SONALIFE DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SONALIFE WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOWLEDGE THAT SONALIFE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, DATA BREACHES AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND SONALIFE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.4. Non-GA Services. From time to time Sonalife may invite you to try, at no charge, products or services that are not generally available to Sonalife’s customers (“Non-GA Services”). You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICE” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Non-GA Services may be discontinued at any time and may never become generally available.
9. INDEMNIFICATION
9.1. Indemnification by Sonalife. Sonalife shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that your use of the Service, as permitted hereunder, directly infringes the patent rights of a third party (a “Claim Against You”), and shall indemnify you for any damages, reasonable attorney fees and costs finally awarded against you by a court of competent jurisdiction, as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give Sonalife written notice of the Claim Against You; (b) give Sonalife and its relevant suppliers sole control of the defence and settlement of the Claim Against You; and (c) provide to Sonalife all reasonable assistance, at Sonalife’s expense. In the event of a Claim Against You, or if Sonalife reasonably believes the Service may infringe or misappropriate, Sonalife may in Sonalife’s discretion and at no cost to you (i) procure that the Service is modified so that it no longer infringes or misappropriates, (ii) obtain the rights for your continued use of the Service in accordance with this Agreement, or (iii) terminate your Subscriptions for such Service upon thirty (30) days’ written notice and refund to you any prepaid fees covering the remainder of the term of such Subscriptions after the effective date of termination. Sonalife shall have no liability hereunder with respect to any Claim Against You based upon (a) the combination of the Service with other products not offered by Sonalife for use with the Service; (b) any addition to or modification of the Service by any person or entity other than Sonalife or Sonalife’s authorised representatives; (c) information or requirements or directives furnished by you; (d) your or your Users’ Data or Publications; or (e) use of the Service in a manner inconsistent with or not otherwise contemplated by this Agreement.
9.2. Indemnification by You. You shall defend and indemnify Sonalife against any claim, demand, suit, proceeding, losses, liabilities, damages, costs or expenses made or brought against Sonalife by a third party alleging that (i) your Data, Publications, or your use of the Service in breach of the Agreement infringes the intellectual property rights of any third party; (3) Sonalife’s processing of your Data, except to the extent such processing is in breach of this Agreement; and (4) any other claim relating to any your Data (a “Claim Against Sonalife”), and shall indemnify Sonalife for any damages, reasonable attorney fees and costs finally awarded against Sonalife, as a result of, or for any amounts paid by Sonalife under a settlement of, a Claim Against Sonalife; provided that Sonalife (a) promptly gives you written notice of the Claim Against Sonalife; (b) gives you sole control of the defence and settlement of the Claim Against Sonalife (provided that you may not settle any Claim Against Sonalife unless the settlement unconditionally releases Sonalife of all liability); and (c) provides to you all reasonable assistance, at your expense.
9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any intellectual property infringement claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO (i) A PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS AS SET FORTH HEREIN, OR (ii) CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU TO SONALIFE UNDER THE ORDER FORM THAT GAVE RISE TO THE CLAIM HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO A CLAIM. ANY DAMAGE IN YOUR FAVOUR AGAINST SONALIFE SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
10.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS MSA OR ANY APPLICABLE ORDER FORM), LOSS OF GOODWILL, OR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, DATA OR DATA USE, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER
OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Subscription. Services provided under this MSA shall be provided for the period defined in the applicable Order Form unless earlier terminated by Sonalife. The term of the Subscription to use the Services and any renewal(s) periods are collectively defined as the “Subscription Term”. This MSA commences on the date your Order Form is accepted by Sonalife and continues until all Subscription Terms have expired or been terminated. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional one-year periods, unless a Party gives the other notice of non-renewal at least ninety (90) days before the end of the relevant Subscription term. The fees for Subscriptions automatically renewed are subject to increase at a rate not to exceed 5% over the prior year.
11.2. Termination. A Party may terminate this Agreement (i) upon 60 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Effect of Termination. On termination or expiration of an Order Form or Subscription, Customer will stop accessing and using, and Sonalife will stop providing, the Services and all related rights granted to Customer in this Agreement shall terminate immediately, automatically, and without notice.
11.4. Payment upon Termination. If you terminate this Agreement as specified in Section 11.2, Sonalife will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If Sonalife terminates this Agreement as specified in Section 11.2, you will pay any unpaid fees covering the remainder of the Subscription Term for Services ordered under all Order Forms, plus applicable taxes and expenses. In no event will termination relieve you of your obligation to pay any fees payable to Sonalife for your use of the Service for the period prior to the effective date of termination.
11.5. Return of Your Data. Upon written request by you made within 28 days after the effective date of termination of a Subscription, Sonalife will make available to you for download a file of your Data. After such twenty eight (28) day period, Sonalife shall have no obligation to maintain or provide any of your Data and shall thereafter, unless legally prohibited, delete all of your Data in Sonalife systems or otherwise in Sonalife’s possession or under Sonalife’s control.
11.6. Surviving Provisions. Section 1 (Definitions), 3.2 (Analytical Data), 5 (Fees and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Warranties and Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Payment upon Termination), 11.5 (Return of Your Data), and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1. Governing Law. This MSA and all Order Forms, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this MSA or any Order Form, shall be governed by, and enforced in accordance with, the internal laws of Ireland, with regard to its conflict of law principles. The parties irrevocably consent to the exclusive jurisdiction of, and venue in, a court of competent jurisdiction located in Dublin, Ireland, for the purposes of adjudicating any dispute arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this MSA or any Order Form. The Uniform Computer Information Transactions Act as enacted shall not apply. Either Party must initiate a cause of action for any claim(s) arising out of or relating to this MSA or an Order Form and its subject matter within three (3) months from the date when the Party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
12.2. Manner of Giving Notice. If you have a dispute with Sonalife or otherwise wish to provide notice to Sonalife, you will promptly send written notice by email sent to connect@sonalife.ie. Sonalife may give you notice applicable to the Service by means of a general notice on Sonalife portal for Services, by email at the contact address specified in your Order Form, and notices specific to you by written communication sent by first class mail or pre-paid post addressed to the contact address set forth in the Order Form. Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to You shall be addressed to your designated recipient or your business address.
12.3. Relationship of the Parties. You agree that Sonalife is an independent contractor and we agree this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. You understand that Sonalife’s business partners, including any third-party firms retained by you to provide services, are independent of Sonalife and are not Sonalife’s agents. Sonalife is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as Sonalife subcontractor on an engagement ordered under this MSA or Order Form.
12.4. Force Majeure. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, riot, civil commotion, fire, labor strike, hacker attack, denial of service attack, epidemic, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated Party. The Parties both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either of us may cancel unperformed services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.
12.5. No Third-Party Beneficiaries. Nothing in this MSA or any Order Form shall create or be deemed to create any third-party beneficiary rights in any person or entity not a Party to this MSA or an Order Form, including End-Users.
12.6. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA or Order Form shall remain in effect.
12.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Any attempted or purported Assignment in violation of this Section is null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.9. Entire Agreement and Construction. This Agreement, including all exhibits, amendments and addenda hereto, and all Order Forms, and any other terms expressly referenced anywhere in this Agreement or the Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any Order Form shall be effective unless in writing and signed by an authorised representative of both parties. However, to the extent of any conflict or inconsistency between the provisions in this MSA and or any Order Form, the terms of the Order Form shall prevail. Section headings are for convenience only and are not to be used in interpreting this Agreement. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favour of or against either party. URLs are understood to also refer to successor URLs, URLs for localised content, and information or resources linked from within the websites at such URLs.
12.10. Publicity. Either Party may publicise the existence and general nature of the relationship established by this MSA through mutually agreed upon press releases and other marketing collateral. You consent to Sonalife’s right to use your name and logo on the Company’s website and in marketing activities and press releases.
12.11. Audit. During the term of this Agreement and for a period of one year thereafter, Sonalife shall have the right, but not more than once per quarter, at its own expense, to have an independent auditor audit your compliance with your obligations under this Agreement. In the event any such audit discloses any breach by you of your obligations under this Agreement, you shall pay to Sonalife any fees relating to your failure to comply with your obligations under this Agreement and the cost of such audit.
