TERMS OF SERVICE
Last Updated: January 2024
Welcome to soona co. (“soona,” “we,” “our,” or “us”). We provide the online booking service and video and photography portal, located at soona.co, including all of its webpages and subpages (collectively, the “Platform”) and may provide software that may be downloaded to your computer, smartphone or tablet to access services either directly from soona or via third parties (each, an “Application”). The Platform, Applications, and the content creation services and other licensed services that we provide to you in connection with the Platform and Applications, are referred to as the “Services”. soona may change, add, or remove any part of the Services from time to time. These Terms cover all Services available through the Platform and Applications.
These Terms of Service (these “Terms”) are a legal agreement between soona and you, or, if you represent an entity or other organization, that entity or organization (in either case “you” or “your”) and governs your access to and use of the Services.
If you are accessing the Platform or using the Services on behalf of a third party customer (a “Customer”) that has entered into a separate agreement with soona for the Services (“Services Agreement”), your use of the Platform and Services is, at all times, subject to the terms and conditions of the Services Agreement. Nothing in these Terms modifies Customer’s or soona’s rights or obligations under the Services Agreement.
BY REGISTERING FOR THE PLATFORM OR SERVICE, OR BY OTHERWISE ACCESSING THE PLATFORM OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions. To register an Account with soona, you must be 18 years or over.
Our Services help you to create high-quality photos, videos, and other content, which may be created in-studio or via other Services within the Platform. From time to time, soona may offer other services, including a suite of editing functions, analytics on your Licensed Content performance, and other services.
- 1.1. Bookings and Shoots. Through the Platform, you can create a booking for a photoshoot, video-shoot, or other in-studio session to create content (each a “Shoot”). Our booking page lets you add details regarding the kind of Shoot you want. We will let you know if any of your requests are out of scope or otherwise not available. The photos, videos, and other content we develop in connection with the Services are referred to as “Developed Content.”
- 1.2. Developed Content Previews. soona will provide you with previews of some or all of the Developed Content for your review. Developed Content may, but will not necessarily, contain watermarks or similar markings. You may use the previews solely in order to review and select the Developed Content that you will license, and for no other purpose. You may not remove or modify any notice of copyright or similar marking encoded, embodied, or displayed in connection with the previews of the Developed Content.
- 1.3. Professional Services. When you book a Shoot, you may request that professional services be a part of your Shoot. Such services may include, among other things, human or animal models, and services for hair and makeup, styling, shopping, moving, assembly and installation, and any other services required to execute your Shoot successfully (“Pro Services”). Certain types of Shoots may require the purchase of Pro Services, in which case, soona will inform or contact you to let you know what’s needed. Additional information about Pro Services that soona offers is here. soona will coordinate for the applicable Pro Services you select and you will be billed accordingly. soona may update its Pro Services from time to time without notice to you and soona does not have any obligation to continue to offer any Pro Services.
- 1.4. Participants. In some cases, you may be permitted to use individuals in your Shoot that are not supplied by soona (each such individual is a “Participant”). You are solely responsible for your Participants. Each of your Participants must sign our then-current Publicity Consent and Waiver prior to participating in a Shoot. soona disclaims all liabilities arising out of or relating to your use of a Participant, including a Participant’s failure to sign a waiver.
2. Accounts; Access to Services.
- 2.1. Accounts and Registration. You may access and use certain features of the Services by creating a soona user account (your “Account”). You may log into your Account to use such Services using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any activities or actions taken under your username, whether or not you have authorized such activities or actions. You agree that the information that you provide to soona about yourself upon registration of your Account, and at all other times (the “Registration Information”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Registration Information to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. soona reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify soona immediately at email@example.com. soona is not liable for any loss or damage arising from your failure to comply with the above requirements. If you connect us with a third party services such as Facebook, Google, or LinkedIn, you give us permission to access and use your information from that third party service as permitted by that service, and to store your login credentials for that service.
- 2.2. Portfolio Accounts. soona may permit you to manage one or more soona accounts (each a “Portfolio Account”) through a single Account (an “Agency Account”). If you link your Account with a Portfolio Account, you represent and warrant that you have the rights and permissions necessary to link the Portfolio Accounts to the Agency Account. You may unlink a Portfolio Account from the Agency Account at any time. You are responsible for all actions taken under the Agency Account or any Portfolio Account. You will indemnify and hold soona harmless from and against any claim, action, demand, damage, loss, or expense suffered by soona in connection with any action taken in connection with the Agency Account or any Portfolio Account.
- 2.3. Services License. Subject to these Terms and any Services Agreement or order form (if applicable), soona grants you a personal, limited, revocable, non-exclusive, non-transferable, and non-sublicensable right to: (a) access and use the Services specifically made available to you as permitted by soona (the “Permitted Purpose”), and (b) download, install, and use the Application(s) made available by soona for public use on your own device solely for the Permitted Purpose. This license is exclusive to you and you may not sublicense or transfer the use of the Services.
- 2.4. Push Notifications. By registering an Account and/or receiving any Services, you agree to be contacted via email, SMS and/or text messaging by us, including via push notifications, regarding our Services, the Platform, and by third parties, if relevant, for third party notifications and/or advertisements.
- 2.6. App Store Terms. You acknowledge and agree that the availability of an Application is dependent on the third party websites from which you download the applications, e.g., the application stores from Shopify or Amazon (each an “App Store”). You acknowledge that these Terms are between you and soona, and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Applications from it. You agree to comply with, and your license to use the Applications is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
3. Beta Service Use
- 3.1. Description. soona may make available to you certain services or features that are identified as alpha, beta, preview, early access, evaluation, or other identifiers with similar meanings (each a “Beta Service”). Beta Services may be generally available or may be made available by invite only.
- 3.2. Voluntary Use. Notwithstanding anything to the contrary in these Terms: (a) you may choose to access or use Beta Services in your sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; and (d) Beta Services have not been subjected to the same testing, auditing, or quality assurance measures to which the Services have been subjected. BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT ANY WARRANTY OF ANY KIND. ANY DATA DERIVED FROM USE OF BETA SERVICES MAY BE PERMANENTLY LOST UPON TERMINATION FO THE BETA SERVICES FOR ANY REASON. SOONA WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK.
- 3.3. Feedback. soona offers Beta Services in order to get user feedback. In exchange for using Beta Services, you agree that soona may contact you to obtain Feedback regarding Beta Services.
- 3.4. Confidentiality. As a user of Beta Services, you may get access to special information that isn’t available to the public. Due to the sensitive nature of this information, it’s important for us to make sure that you keep that information secret. You agree that any non-public Beta Services information we give you, such as information about a private Beta Services, will be considered soona’s confidential information (collectively, “Confidential Information”), regardless of whether it is marked or identified as such. You agree to only use such Confidential Information for the express purpose of testing and evaluating the Beta Service, and not for any other purpose. You should use the same degree of care as you would with your own confidential information, but no less than reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of our Confidential Information. You promise not to disclose, publish, or disseminate any Confidential Information to any third party, unless we don’t otherwise prohibit or restrict such disclosure (for example, you might be part of a soona-organized group discussion about a private Beta Services feature).
4. Products; Customer Materials.
- 4.1. Provision of Products and Materials. In connection with your access to and use of the Services, you may provide samples, products, materials, or other goods to soona (collectively, “Products”), and certain trade names, trademarks, service marks, logos, Product details, and content and information relating to you and/or your Product that you desire soona to use in connection with the Services (together with the Products, the “Product Materials”).You may also provide images, photos, audio and video files, written content, and online product listings to be used by soona as part of the Services or in relation to your use of the Services (together with the Product Materials, the “Customer Materials”). You retain all right, title, and interest in and to your Customer Materials. By submitting Customer Materials, you unconditionally grant to soona a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the Customer Materials, to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Customer Materials in connection with the performance of the Services and to improve and/or develop soona’s product and service offerings.
- 4.2. Customer Warranty. You may not provide any Customer Materials to soona that are illegal, harmful, or hazardous, or that infringe or violate any third party’s rights, including any copyright, patent, trademark, or other proprietary or contractual right. You represent and warrant that: (a) you have all necessary rights and licenses to provide the Customer Materials to soona as set forth herein, (b) all Products provided to soona comply with all applicable laws, rules, and regulations, and are provided to soona in accordance with all such laws, rules, and regulations, and the terms and conditions set forth herein. soona reserves the right to remove or exclude Customer Materials that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, or otherwise harmful. In the event soona believes a violation of the foregoing representations and warranties has occurred, soona may, with or without notice: (i) dispose of such Products and charge you for all costs related to such a disposal, and/or (ii) if applicable, contact appropriate law enforcement authorities.
- 4.3. Return of Products. If you request that soona return any Products to you, you agree to pay soona for all shipping charges (including any customs fees or duties and soona’s then current per-Product handling fees) or provide a prepaid return shipping label. All shipping labels must be electronically provided and soona will only return the Product to you (and will not execute a return to the Product vendor on your behalf). soona will not accept any physical return shipping labels provided with a Product. The Platform may list certain types of products that cannot be returned and are required to be disposed of, including, without limitation, aerosols, alcoholic beverages, hemp products, Products containing lithium batteries, tobacco products, etc. You further agree that soona will have no liability for any delay, damage, or loss of such items in transit.
- 4.4. Disposal of Products. If you do not request that soona return a Product, or if you fail to provide payment or a prepaid shipping label for return shipping within two (2) weeks following notice of the completion of the Shoot relating to such Product, then soona may either donate, dispose of, or continue to store (each, at soona’s then-current rates for handling and storage) your Products and charge you for any associated costs or expenses. In addition, if you ship to soona a Product and do not have a booking for such Product, soona may donate or dispose of such Product without any liability to you, and you shall be responsible for costs related to such disposal/donation. You are strongly discouraged from shipping to soona any Products for which you have not booked a Shoot.
- 4.5. Title and Risk of Loss of Product; Release. At all times, you shall retain title and risk of loss or damage to your Products. In no event will soona be liable to you or any third party for any loss or damage to the Products, howsoever caused, and whether such loss or damage could have been prevented by soona. To the maximum extent permitted by law, you, on behalf of your affiliates, officers, directors, owners, employees, successors, heirs, and assigns (the “Releasing Parties”) hereby release the soona Parties, from and against any and all claims, demands, actions, or proceedings relating to the Products or any loss or damage thereto. The Releasing Parties will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by way of action, defense, set-off, cross-complaint or counterclaim, against the soona Parties arising out of, or in connection with the Products or any loss or damage thereto.
- 4.6. Additional Product Related Fees. soona reserves the right to amend or increase fees charged to you for a Shoot upon receipt of a Product if the Product requires installation, construction, or other “white glove” type services, or if the Product requires special storage. Such fees shall be at soona’s sole discretion. soona shall provide notice to you of such additional fees and you may elect to pay such fees or request a return or disposal of the Product pursuant to these Terms.
5. Pricing and Payment.
- 5.1. Pricing. Pricing for the Services is described on the Platform and is subject to change without notice to you. You agree to pay soona in advance any applicable fees for the Services to be provided by soona under these Terms. All amounts owed by you will be provided via an order summary, which may be presented via email or may be available in your Account. Unless otherwise agreed to in writing by soona, fees are immediately due and payable, and all fees must be paid in full prior to soona delivering to you any Licensed Content (defined below). All fees will be paid in U.S. dollars. soona’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on soona’s income.
- 5.2. Billing Information. You will provide soona with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information. All fees will be billed to such credit or debit card. If such information is false or fraudulent, soona reserves the right to terminate your use of, or access to, the Services in addition to seeking any other legal remedies. soona is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by soona. Each charge will be considered valid unless disputed by you in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. If soona does not have a valid payment method on file for you, soona will notify you and if you do not update the payment method within five (5) days, soona may return your Products if you have provided an electronic return label, or dispose of the Products, without further notice or obligation to you.
- 5.3. Misuse of Developed Content. If you use any Developed Content in violation of these Terms, you agree to pay soona’s then-current fees for purchasing a license to all of the Developed Content provided to you by soona. You hereby authorize soona to charge your credit card or debit card such licensing amounts. You understand that this remedy is in addition to any other remedy available to soona for your misuse of Developed Content, including claims for misappropriation of intellectual property rights.
- 5.4. Subscriptions.
- (a) Subscription Services. Certain services may be offered on a subscription basis. For a recurring fee, you may use certain editing, content storage, content creation and generation, content publishing, and e-commerce analytics services (collectively, the “Subscription Services”). soona may add or remove services from the Subscription Services at any time. soona may bill your designated payment method for all Subscription Services fees. All fees paid for Subscription Services are non-refundable.
- (b) Automatic Renewal. To the extent permitted by applicable law, subscriptions for Subscription Services automatically renew for the subscription period until you cancel. Your payment method will be charged at the beginning of each subscription period. To pause or cancel a subscription, visit your Account settings. Your changes will be applied to your next subscription period. Prior to your annual subscription renewing, you will receive an email to the email address associated with your Account informing you of the date that your subscription will be renewing. For monthly subscribers, you will receive an e-mail if your monthly subscription is renewing for a 12th month, and thereafter on an annual basis.
By signing up for Subscription Services, you acknowledge that your purchase of the Subscription Services:
- (a) Is subject to automatic renewal;
- (b) Will continue until you cancel the subscription; and
- (c) Is subject to automatic charges on your method of payment.
You may cancel your subscription at any time by going to the “Manage Plan” page or your “Account Settings” page, selecting the “Cancel Plan.” Alternatively, you may email firstname.lastname@example.org to cancel your subscription. Notwithstanding any cancellation of a subscription, you will be responsible for all fees owed for the term of the subscription.
- 5.5. Purchase of Licensed Content Credits. If you purchase prepaid credits for the ability to license Developed Content at a set price (each such credit is a “Credit”), the following terms shall apply:
- (a) Credits. You will receive the number of Credits you purchase, as set forth in an ordering document and you may license items of Developed Content at the price set forth in the ordering document. Your Credit balance will be available for review in your Account.
- (b) Redemption. One Credit equals a license for one Developed Content. Credits shall apply to the type of Developed Content specified in the ordering document and may not be used towards any other Developed Content or services (e.g., Booking fees, Pro Services, certain premium edits, and additional iterations of edits), and may not be exchanged for Credits for a different type of Developed Content. Redemption of Credits may be subject to other limitations as promulgated by soona from time to time, and which are available here.
- (c) Expiration. The Credits (and any other benefits specified in your ordering document) must be used on or before the expiration date set forth in your ordering document, after which, any unused Credits shall be forfeited. Notwithstanding anything to the contrary in these Terms, Credit purchases are non-refundable.
- (d) Non-Transferability. The Credits are for the personal use of the party purchasing the Credits only. You shall not transfer the Credits to, nor permit the use of the Credits by, any team, business group, affiliated entity, or third-party. Credits shall not have any redeemable cash value. Breach of this Section 5.5(d) may result in a forfeiture of the Credit balance.
- 5.6. Refund Policy. All fees are non-cancelable and non-refundable. Shoots may not be rescheduled later than two business days prior to the Shoot time. All Shoots that are timely rescheduled may be subject to a rescheduling fee based on the price of the original booking. What this means is that if you reschedule a Shoot more than two business days in advance, all fees owed for that Shoot (booking fees, Pro Services, etc.) will still be due and can be used towards the rescheduled Shoot, in addition to payment of a rescheduling fee. For in-studio Shoots, if you fail to attend (or are more than 15 minutes late), you will forfeit all fees related to that Shoot and you will be charged soona’s then-current “No Show” fee. If you terminate any ordering document for Services for soona’s breach of these Terms, then you will be entitled to a refund of any prepaid fees for Services not rendered as of the effective date of termination.
6. Suspension and Termination.
- You are free to stop using the Services or to close your Account at any time. soona reserves the right to suspend or terminate your Account and your access to and/or use of the Services, at any time, without notice. soona reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that soona shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. soona may, but is not required to, maintain the Developed Content relating to your Shoots after termination of your Account.
7. License to Licensed Content; Ownership of the Service.
- 7.1. You may select Developed Content that soona presents for licensing (all such licensed Developed Content shall be the “Licensed Content”). Subject to your compliance with these Terms and upon payment of all applicable fees, soona grants to you a non-exclusive, perpetual, worldwide, transferable, and sublicensable license to reproduce, distribute, publicly display, publicly perform, prepare derivative works of (including to translate, alter, and modify), and otherwise use the Licensed Content.
- 7.2. Except as to the limited license granted in Paragraph 7.1, all intellectual property rights, including without limitation copyrights, patents, trademarks, services marks, and trade secrets in the Platform, Services, Developed Content, and Licensed Content are owned by soona and its licensors. Copying, distributing, modifying, or creating derivative works of the Services or Developed Content, including of the Platform or Applications, without soona’s written permission is strictly prohibited. You must have a license from us before you can post or redistribute any Developed Content. Other than with respect to your Customer Materials, soona retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. For avoidance of doubt, soona will not license or otherwise distribute to unaffiliated third parties any Developed Content. Please note that Developed Content may be published in soona’s marketing materials and on the Platform and soona may use any and all Developed Content to improve and develop its service and product offerings. If you wish to restrict soona’s right to use any Developed Content for marketing purposes, you may elect to opt-out within your Account.
- 7.3. soona may, from time to time, make other Services available through the Platform, including image and video editing capabilities (“Media Editor”). You may use the Media Editor in accordance with these Terms to edit your Customer Materials that you upload, or that are Licensed Content. Without limiting your ownership rights in Customer Materials, all works created that are based on Licensed Content using the Media Editor shall be owned by soona, and shall be licensed to you as Licensed Content in accordance with Paragraph 7.1. If Customer creates any works using the Media Editor that are based on Customer Materials (that are not Licensed Content), all such derivative works shall be owned by Customer.
- 7.4. You may not modify the Services, reverse engineer, reverse compile, reverse assemble or do any other operation with the Services that would reveal any source code, trade secrets, know-how or other proprietary information, or otherwise copy or creative derivative works from the Platform or content therein. Nothing in these Terms shall be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Services. In addition, you may not commercialize, transfer, or sell the Developed Content to any third party, whether on a standalone basis, in a competitive service, or otherwise. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded, embodied, or displayed in connection the Services. You may use the Services only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Services after any termination or expiration of your agreement to these Terms for any reason.
- 7.5. You acknowledge and agree that soona has the right to collect, extract, compile, synthesize, and analyze usage data, analytics, statistics, and other information resulting from your access to and use of the Services (“Usage Data”). soona retains ownership of all right, title, and interest in and to Usage Data, which may be used by soona in connection with its performance of its obligations under these Terms and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve the Services.
As part of the Services, we offer 1GB of free digital storage for storage of any Customer Materials you upload to your Account and other content that is created by you in using the Services (the “Stored Content”). You may be entitled to additional storage if you sign up for a premium Subscription Services. If at any point, you attempt to use more storage space than permitted by the plan you are signed up for, you will not be able to upload any additional content unless you delete enough of your Stored Content so that you are within the permitted storage space limit. soona will store your Stored Content for a period of 60 days following your last log in to your Account, or following the expiration of your Subscription Services plan. If 60 days have passed since the last activity in your Account (or since your Subscription Services plan has expired), soona reserves the right to delete all Stored Content in your Account. soona will use reasonable efforts to notify you prior to such deletion by contacting you via email and within a pop-up message within your Account or elsewhere on the Platform. Once Stored Content is deleted, it cannot be recovered.
10. Third Party Software and Linking.
- 10.1. Open Source Software. Certain items of software included with the Services may be subject to “open source” or “free software” licenses (“Open Source Software”). Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, soona makes such Open Source Software, and any soona modifications to that Open Source Software, available by written request to soona at the email or mailing address included in these Terms.
11. Limited Warranty; Disclaimers.
- 11.1. soona warrants that the Services and the Licensed Content will be provided in accordance with these Terms. If you believe that the Licensed Content does not comply with these Terms for any reason, soona will work with you to remedy your concerns by re-editing the Licensed Content on the condition that you notify soona in writing of the issue no later than ten (10) days following your receipt of the Licensed Content. This Paragraph 11.1 sets forth soona’s sole obligation and your sole and exclusive remedy for a failure by soona to provide the Licensed Content in accordance with these Terms.
- 11.2. EXCEPT AS SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. SOONA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FOR ANY PARTICULAR OUTCOME FOR YOU AS A RESULT OF PERFORMANCE OF THE SERVICES, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY SOONA, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY.
- 11.3. SOONA MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SERVICES WILL BE AVAILABLE, OR THAT DATA WILL BE SECURE FROM UNAUTHORIZED ACCESS.
Unless prohibited by state or federal laws to which you are subject, you will indemnify, defend (at soona’s option), and hold soona, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (a) your access to or use of the Services; (b) any Customer Materials (including soona’s receipt, storage, return, disposal, or donation of any Products), (c) your violation of these Terms or any terms or agreements to which you are subject with an App Store; or (d) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right (including by derivative works created from the Customer Materials or Licensed Content). soona reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify soona and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without soona’s prior written consent. soona will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. Limitation of Liability.
- 13.1. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SOONA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF SOONA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SERVICES, FROM ANY CHANGES TO THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CUSTOMER MATERIALS. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF ANY CUSTOMER MATERIALS.
- 13.2. IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH ANY OF THESE TERMS, OR FEEL SOONA HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THE TOTAL LIABILITY OF SOONA TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE TERMS OR USE OF SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IT IS THE INTENTION OF YOU AND SOONA THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
- 13.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS AND IN PARTICULAR WITHIN THIS “LIMITATION OF LIABILITY” CLAUSE SHALL ATTEMPT TO EXCLUDE LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of the Service, or any Third Party Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
15. International Use.
We control and operate the Services from our offices in Colorado. We do not represent that the Services are appropriate or available for use in other locations outside of the United States. Persons who choose to access the Services from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Services. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission or transfer of any data or technical information in connection with your access to or use of the Services.
- 16.1. Modification. soona may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Platform or Services after the “Last Revised” date at the top of these Terms. Your continued access to or use of the Platform or Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Platform or Services.
- 16.2. Applicable Law and Dispute Resolution. These Terms shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that soona has not adhered to these Terms, please contact us by e-mail at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and soona are unable to reach a resolution to the dispute, you and soona will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. YOU AND SOONA AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN SOONA AND YOU INDIVIDUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOU AND SOONA ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and soona otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred. Notwithstanding the foregoing, soona may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. If you are subject to any state or federal law requiring that the laws of a different jurisdiction apply or that prohibit dispute resolution in the manner required in this Paragraph 16.2, then this Paragraph 16.2 shall be deemed revised to conform with such laws. You have a limited right to opt out of this arbitration obligation. If you are a new customer, you can opt out of this arbitration obligation within 30 days of first accepting these Terms. If you are an existing customer, you can opt out within 30 days after the Last Revised date of these Terms. To opt out, you must send a timely email to firstname.lastname@example.org with your information and a request to opt out of these arbitration terms. If you validly opt out, you will not need to keep opting out when these Terms are updated, and your initial opt out request will continue to be honored.
- 16.3. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and soona as a result of these Terms or use of the Services.
- 16.4. Waiver. The failure of soona to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by soona in writing.
- 16.5. Construction. The headings of Paragraphs of these Terms are for convenience and are not to be used in interpretation.
- 16.6. Contact.
- soona is located in Denver, Colorado Any questions, comments or suggestions, including any report of violation of these Terms should be provided soona as follows:
By E-mail: email@example.com
By Postal Mail: 1235 S. Broadway
Denver, CO 80210
- 16.7. Entire Agreement. These Terms constitute the entire agreement between you and soona with respect to the Services, superseding any prior agreements between you and soona. The failure of soona to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and soona nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect