Legal - SoundHound for Restaurants

SOUNDHOUND FOR MERCHANTS
TERMS OF SERVICE

Updated and Effective: August 2023

BEFORE YOU USE SOUNDHOUND FOR MERCHANTS, PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SOUNDHOUND FOR MERCHANTS ACCOUNT SETUP OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SOUNDHOUND FOR MERCHANTS ACCOUNT SETUP.

SECTION 15 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 15 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

Definitions.
1. “Agreement” means these Terms of Service and any associated documentation (whether electronic or paper) including without limitation the account sign up, the merchant portal associated with the account, and the SFM Platform.
2. “Customer” or “SFM Customer” means the customer who places an order for Merchant Products through the SFM Platform.
3. “Customer Data” means all information originating from or provided by Customer or Merchant to SoundHound in connection with SFM Services. Customer Data may include but is not limited to device ID, IP addresses, timestamps, geolocation, recordings, Personal Information, and other supplemental information.
4. “Merchant” means the merchant or other entity that has agreed to participate in the SFM Services.
5. “Merchant Portal” means one or more of the following: pricing pages, payment information pages or portals, Smart Answering online interface, Smart Ordering online interface, and/or an online platform, accessible at https://food.houndify.com/ (and that may be made accessible via other applications), through which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the SFM Platform.
6. “Merchant Products” includes all products offered for pick-up or delivery at Merchant Stores.
7. “Merchant Stores” means the Merchant store locations that participate in the SFM Services and includes: (i) Merchant Stores owned and operated by Merchant or its affiliates, and/or (ii) Merchant Stores owned and operated by Franchisees of Merchant or its affiliates.
8. “Personal Information” means any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
9. “SoundHound Data” means any information that SoundHound provides or makes accessible to Merchant through the SFM Platform, including without limitation Personal Information.
10. “Smart Answering” means the SFM Services which include answering questions related to the Merchant.
11. “Smart Ordering” means the SFM Services which include taking orders for Merchant Products.
12. “Smart Orders” means orders for Merchant Products from Customers for pickup or delivery placed by a Customer via telephone, voice interface associated with a television, human machine interface associated with an automobile, or an interface associated with any other computer, smart or IoT device.
13. “SFM” means SoundHound For Merchants.
14. “SFM API” means the SoundHound application programming interface (API) that allows the Merchant to exchange information with SoundHound.
15. “SFM Platform” means SoundHound’s proprietary online communication platform.
16. “SFM Services” means the use of AI-powered voice and text automation cloud-based subscription services to allow merchants to handle incoming customer voice and text interactions received via telephone, voice interface associated with a television, human machine interface associated with an automobile, or an interface associated with any other computer, smart or IoT device.
17. “SFM Term” means the term of the agreement between SoundHound and Merchant for the SFM Platform.
18. “Terms” means the provisions herein.
The Parties' Relationship. SoundHound provides SFM Services as described in these Terms of Service. SoundHound is not a merchant, seller of goods, or delivery service; it provides SFM Services. Merchant and SoundHound agree they are independent businesses whose relationship is governed by the SoundHound for Merchants Account Setup, these Terms, and any applicable terms between the Parties. Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between SoundHound and Merchant (or Merchant’s employees, representatives or locations), or SoundHound and Customers. Except as expressly set forth in the SoundHound for Merchants Account Setup, these Terms, and any applicable terms between the Parties, each Party shall be responsible for its own expenses, profits and losses.
Parties’ Responsibilities.
1. Smart Answering. For Merchants that have agreed to use Smart Answering, SoundHound and Merchant shall have the following responsibilities during the SFM Term:
  1. SoundHound Smart Answering Core Responsibilities. SoundHound will, in a timely manner:
    1. Provide an online interface through which Merchant (i) selects or authors the content Merchant would like covered via Smart Answering and (ii) identifies or provides the answers the Merchant would like provided to the Customer via Smart Answering;
    2. Accept and respond to questions from Customers in accordance with the Merchant’s instructions provided through the online interface; and
    3. Maintain a dashboard available through the Merchant Portal showing aggregate usage of Smart Answering.
  2. Merchant Smart Answering Core Responsibilities. Merchant will, in a timely manner:
    1. Using the online interface, (i) select or author the content Merchant would like covered via Smart Answering and (ii) identify or provide the answers the Merchant would like provided to the Customer via Smart Answering; and
    2. Monitor Merchant’s store information on the Merchant Portal, promptly make updates via the Merchant Portal to reflect the most up-to-date information or immediately notify SoundHound of any errors or changes in writing.
2. Smart Ordering. For Merchants that have agreed to use Smart OrderingSFM, SoundHound and Merchant shall have the following responsibilities during the SFM Term:
  1. SoundHound Smart Ordering Core Responsibilities. SoundHound will, in a timely manner:
    1. Accept SFMSmart Orders from Customers;
    2. Forward each SFMSmart Order to the relevant Merchant Store;
    3. If accepting payment on Merchant’s behalf, pay the Merchant in accord with the Parties’ agreements, deduct the applicable commission, marketing fees (for identifiable orders), subscription fees, Activation Fees, and any other fees (in each case, as may be adjusted by SoundHound as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature); and
    4. build and maintain a database of Merchant Products on the SFM Platform (optional).
  2. Merchant Smart Ordering Core Responsibilities. Merchant will, in a timely manner:
    1. Provide SoundHound with the Merchant’s pickup and delivery menu, including the price of each item on such menu;
    2. Monitor Merchant’s menu and store information on the Merchant Portal, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify SoundHound of any errors or changes in writing;
    3. Accept all SFMSmart Orders placed through SoundHound from Merchant’s then-current menu;
    4. Confirm all SFMSmart Orders through SoundHound;
    5. Prepare the Merchant Products for each SFMSmart Order at the designated time;
    6. Process SFMSmart Orders in the order in which they are received;
    7. Notify SoundHound of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
    8. Notify SoundHound of its days and hours of operation, and remain open for business on SoundHound the same days and hours of operation as Merchant’s in-store business; notify SoundHound of any changes to Merchant’s hours of operations on holidays; and notify SoundHound if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;
    9. Notify all Merchant store staff members of the relationship with SoundHound immediately upon establishing a SoundHound account;
    10. Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard pickup or delivery order, subject to Section 11.2; and
    11. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to SoundHound any inaccuracies.
Merchant Portal, Payment Terms, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:
1. SFM Merchant agrees to pay for SFM Services in accordance with the payment terms set forth on the Merchant Portal.
2. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to SoundHound in writing any claimed inaccuracies, so that SoundHound has the prompt opportunity to address and resolve any issues and so such issues do not persist, which SoundHound and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to SoundHound any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within 14 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to SoundHound regarding such transaction, fee, charge or order within such 14-day period.
3. Merchant agrees that Merchant holds title to the goods or products that Merchant provides until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup at the Merchant’s location. To the extent that a third party provider provides services to Merchant via the Platform (for example, a middleware provider) and charges fees to SoundHound, SoundHound may pass through such third party’s fees to Merchant.
4. In some jurisdictions in the United States, SoundHound may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, SoundHound will inform Merchant that SoundHound will remit any collected taxes to the tax authority and SoundHound will be relieved of any responsibility to remit such collected taxes to Merchant.
Payment Processing. Payment processing services for Merchants are provided by third parties such as Square, Toast, Stripe, and other third-party payment processors. These payment processing services are subject to the terms and services of such third-party payment processors. Merchant should read and review the payment processing terms of the third-party payment processor applicable to the Merchant. For example, Square payment processing services are governed by the Square General Terms of Service found here https://squareup.com/us/en/legal/general/ua, which includes the Payment Terms found here https://squareup.com/us/en/legal/general/payment. Stripe payment processing is subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of SoundHound enabling payment processing services through Stripe, Merchant agrees to provide SoundHound accurate and complete information about Merchant’s representative and its business, and Merchant authorizes SoundHound to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Upon account creation, Merchant shall be solely responsible for the accuracy and integrity of the information associated with their Stripe account(s). SoundHound will not be responsible for making additional payments to Merchants due to missing or inaccurate information. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.
Merchant Grants, Permissions and Releases for SFM Services.
1. During the SFM Term, Merchant grants to SoundHound a royalty-free, non-exclusive, revocable, and non-transferable right and license to provide SFM Services associated with the Merchant in accordance with these Terms of Service.
2. During the SFM Term, Merchant grants to SoundHound a royalty-free, non-exclusive, revocable, and non-transferable right and license to use, modify, copy, publish, display and create derivative works of the Merchant Content in the provision of SFM Services to Merchant, including, where applicable, listing Merchant as a merchant on the SFM Platform, referencing Merchant as a SoundHound partner, promoting SoundHound’s products and services, and sharing Merchant Content with third parties, including third party services which enable SoundHound Customers to access the SFM Platform (including its web pages) for Orders. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to SoundHound.
3. Third Party Services. The Services may require SoundHound to (i) enter into agreements with third parties, including but not limited to point-of-sale and loyalty rewards systems (collectively “Third-Party Services) and (ii) transfer Customer Data to such third parties to perform SoundHound’s obligations under the Agreement. Merchant agrees that its use of Third-Party Services, and SoundHound’s liability with respect to Third-Party Services, are each subject to the Third-Party Terms. Merchant acknowledges that SoundHound may be required to accept the Third-Party Terms directly with the third-party service provider prior to Merchant using SFM Services. To the extent SoundHound electronically accepts any such Third-Party Terms as part of setting up any such services, Merchant authorizes SoundHound to act as Merchant’s limited agent for this purpose, and further agrees that SoundHound is in no event a party to any such third-party terms. Merchant agrees that SoundHound shall not be liable for the acts or omissions of providers of Third-Party Services, and that SoundHound shall not be responsible for any remedies set forth in Third-Party Terms. SoundHound will however use commercially reasonable efforts to seek and pass along to Merchant available remedies for issues with Third-Party Services. SoundHound does not warranty any third-party software.
Confidential Information.
1. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, SoundHound Data is the Confidential Information of SoundHound.
2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
3. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
4. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3 and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
Data Privacy and Security.
1. Customer Data. Merchant understands that SFM Services may collect and send Customer Data to SoundHound. Merchant acknowledges and agrees that the collection, processing, storage, transfer, and use through SFM Services by SoundHound of Customer Data are required in order for SoundHound to provide SFM Services to Merchant and its Customers. Merchant agrees that Merchant will have the role of the data controller and SoundHound will have the role of the data processor or service provider pursuant to the applicable data protection and privacy rules. As controller, Merchant acknowledges and agrees that it is Merchant’s responsibility to take the following actions to ensure, that SoundHound has the rights to collect, process, store, transfer, and use Data for the purposes set forth in this Agreement:
  1. Post and maintain a privacy notice on Merchant’s website (a) to provide each end user the requisite rights, notices, data analytics, legal terms and opt-out provisions (and notice thereof) as required to comply at a minimum with the terms of this Agreement and all applicable laws, rules or regulations, in each jurisdiction in which the Application is distributed, (b) that specifically references SoundHound’s SFM Privacy policy;
  2. Obtain from each SFMCustomer all licenses, rights, consents, and permissions in the Customer Data and otherwise required to process Customer Data for the provision of SFM Services under applicable Laws and Regulations;
  3. Obtain from each SFMCustomer consent to the collection, processing, storage, and use of Customer Data by SoundHound, its Affiliates and service providers provided through SFM Services and the transfer of Customer Data to and between SoundHound and its Affiliates, subcontractors, and service providers for the purposes of (i) providing SFM Services to Customer and its end users, (ii) to improving, optimizing, troubleshooting, and creating bug fixes for SFM Services, and/or (iii) to providing or facilitating new products, services or technologies (collectively, “SoundHound Business Purposes”);
  4. Obtain from each SFMCustomer on behalf of SoundHound and its Affiliates an irrevocable, perpetual, non-exclusive, transferable, royalty-free, sublicensable, worldwide license to use, modify, reproduce, publicly display, publicly perform, distribute, store, collect, copy, transmit, transfer, process, and make derivative works of its Customer Data for SoundHound Business Purposes; and,
  5. Where allowed by law, provide appropriate notice and terms and obtain from each Customer an agreement to arbitration similar to the terms of Section 15 below and an agreement to waive litigation class action similar to the terms of Section 16, each for and on behalf of Merchant and SoundHound and its Affiliates.
2. SoundHound will make commercially reasonable efforts to cooperate with Customer so that Customer can satisfy any obligations Customer may have to its end-users under applicable data privacy laws concerning access, correction and deletion rights.
3. SoundHound Data. Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner SoundHound Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep SoundHound Data secure from unauthorized access and maintain the accuracy and integrity of SoundHound Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to SoundHound Data, Merchant will immediately notify SoundHound, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by SoundHound. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by SoundHound and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the SFM Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the SFM Platform; damage, destroy or impede the services provided through the SFM Platform; transmit injurious code; or bypass or breach any security protection on the SFM Platform.
SFM Term and Termination. In the absence of specific duration or term set forth in the Merchant Portal, the SFM Term shall continue until terminated pursuant to this provision. Merchant may terminate this Agreement for any reason at any time upon fifteen (15) days’ prior written notice but will not be entitled to any refund in connection with an early termination. SoundHound may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor SoundHound will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or SoundHound.
Modifications. SoundHound reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. SoundHound may, at its sole discretion, remove Merchant Products or Stores from the SFM Platform if SoundHound determines that such Merchant Product or Merchant Store could subject SoundHound to undue regulatory risk, health and safety risk, or other liability. SoundHound may, at its sole discretion, remove any Merchant virtual brand concept from the SFM Platform if SoundHound determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by SoundHound. SoundHound also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://food.houndify.com/legal. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including all applicable laws related to third party intellectual property and other proprietary rights.
3. Merchant represents and warrants that it will comply with all applicable data protection and privacy laws.
4. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable merchant supplies), and food safety and sanitation, (ii) it has informed SoundHound of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform SoundHound of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items, (iv) it will only list menu items or products for sale, product descriptions, and prices on the SFM Platform, (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus without first entering into a separate agreement with SoundHound memorializing the promotion, sale of such products in compliance with the laws of the applicable state in which such products will be sold, (vi) it will not disclose any information related to a Customer to a third party (except as required to comply with law or pursuant to a court order), (vii) it will comply with the guidelines SoundHound publishes that govern any content Merchant posts on the SFM Platform or Merchant Portal, and (viii) it will comply with its obligations under Section 3.2 of this Agreement.
5. Merchant acknowledges that the operation of the SFM Platform and the provision of SFM Services by SoundHound relies in large part on the still developing technology of voice artificial intelligence. Merchant understands and agrees that SoundHound will use commercially reasonable effort to accurately detect Customer interactions, including without limitation questions to be answered with Smart Answering or orders to be taken by Smart Ordering, but because of the nature of the developing technology, SoundHound is not expected to accurately answer every question or receive every order or achieve a specific level of order completion. SoundHound does not represent or warrant it has achieved error free Smart Answering or Smart Ordering or a specific level of order completion. SoundHound may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and SoundHound shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the SoundHound services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
6. SoundHound will take commercially reasonable steps to keep the SFM Services operating smoothly and efficiently. However, SoundHound will not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including, without limitation, limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, Internet access delays or failures, failures or deficiencies of Customer’s equipment, or Customer’s failure to meet its responsibilities under this Agreement. Service interruptions for maintenance and system upgrades will be scheduled, to the extent reasonably practicable, to minimize interference with Merchant’s daytime business activities. For unscheduled service interruptions attributable to causes within SoundHound’s reasonable control, as SoundHound’s sole obligation and Merchant’s exclusive remedy, SoundHound will make reasonable efforts to restore the SFM Services.
7. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOUNDHOUND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SFM SERVICES, SFM PLATFORM, THE SFM API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products; (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 7, Section 8, and Section 11 of this Agreement; except that SoundHound shall have no obligation to indemnify Merchant, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents for third party claims that would have been avoided had Merchant complied with its obligations under Section 8; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”); or (iv) in the case of Merchant as the Indemnifying Party, Merchant’s failure to distribute tips as required by applicable law. In addition, Merchant will defend, indemnify and hold harmless SoundHound from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of SoundHound. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. SoundHound assumes no liability, and shall have no liability, for any infringement claim pursuant to section 15 above based on Merchant’s access to and/or use of the SFM Platform following notice of such an infringement claim; any unauthorized modification of the SFM Platform by Merchant; or Merchant’s combination of the SFM Platform with third-party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
Limitation of Liability. EXCEPT WITH RESPECT TO UNPAID AMOUNTS OWED TO SOUNDHOUND BY MERCHANT IN EXCESS OF THE BELOW LIMIT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) SOUNDHOUND AND ITS SUBSIDIARIES AND AFFILIATES WILL HAVE NO LIABILITY TO MERCHANT FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY, AND (III) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Insurance. During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be canceled or materially reduced without thirty (30) days’ prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.
Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SOUNDHOUND AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 15 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, or the relationship between the parties and their personnel (collectively “Disputes”) shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or SoundHound may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). SoundHound and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all Disputes and shall be binding upon and enforceable by not only the parties, but also their affiliates, subsidiaries, and their respective owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST SOUNDHOUND—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH SOUNDHOUND, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST SOUNDHOUND IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
2. Informal Resolution. You and SoundHound agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and SoundHound therefore agree that, before either you or SoundHound demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify SoundHound that you intend to initiate an informal dispute resolution conference, email accountmanagement@soundhound.com, providing your name, telephone number associated with your SoundHound account (if any), the email address associated with your SoundHound account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
3. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. If for whatever reason the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 19(b). If this notice is being sent to SoundHound, it must be sent by email to the counsel who represented SoundHound in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 5400 Betsy Ross Drive, Santa Clara, CA 95054. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement, but in the event of a conflict between the two, the provisions of this Arbitration Agreement shall supersede any and all conflicting arbitration administrator’s rules or procedures. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available as of May 24, 2021 athttps://www.adrservices.com/services/arbitration-rules/. ADR Services, Inc.’s rules are also available by calling them at 310-201-0010. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of May 24, 2021 athttps://www.adrservices.com/rate-fee-schedule/. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s General Fee Schedule and ADR Services, Inc.’s rules. However, if required by law, SoundHound will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
4. Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of May 25, 2021 at https://www.jamsadr.com/appeal/.
5. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and SoundHound. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and SoundHound subject to Section 15.4.
6. Waiver of Jury Trial. YOU AND SOUNDHOUND WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and SoundHound are instead electing to have all Disputes resolved by arbitration, except as specified in Section 15.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
7. Waiver of Class or Consolidated Actions; Severability. YOU AND SOUNDHOUND AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class, consolidated, and representative actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor SoundHound is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 16, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 15 (Dispute Resolution) shall remain in force. The parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or dispute, then all such claims and disputes will then be resolved in arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If any provision of this Section 15 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 15. Nothing in this provision shall prevent you or SoundHound from participating in a class-wide, collective, or representative settlement of claims.
8. Fees and Costs. Any finding that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses associated with defending against the claim or counterclaim. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68 or a state or local equivalent, if applicable, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.
9. Opt Out. SoundHound’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of SoundHound’s Terms of Service and did not validly opt out of arbitration. SoundHound will continue to honor the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service that did not include an Arbitration Agreement. To opt out, you must notify SoundHound in writing of your intention to opt out by sending a letter, by First Class Mail, to SoundHound, Inc., 5400 Betsy Ross Drive, Santa Clara, CA 95054. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after you first enter into an agreement with SoundHound. Your notice must include your name and address, your SoundHound username (if any), the email address you used to set up your SoundHound account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
10. Survival. This Arbitration Agreement will survive any termination of your relationship with SoundHound.
11. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if SoundHound makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to SoundHound.
Litigation Class Action Waiver. To the extent allowed by applicable law, separate and apart from the Arbitration Agreement found in Section 15, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
Franchisees. Franchisees operating a branded merchant or store concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by SoundHound to the Franchisee. Unless the parties mutually agree otherwise in writing, all Merchant owned branded merchant(s) and store concept(s) shall be included and subject to the terms hereunder.
Communications from SoundHound. Merchant agrees to accept and receive communications from SoundHound, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to SoundHound. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of SoundHound and/or its affiliated companies. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.
Attorneys’ Fees. In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.
General Provisions. As set forth on the SoundHound for Merchants Account Setup between Merchant and SoundHound, the SoundHound for Merchants Account Setup and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 15 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of the State of California. Merchant may not assign this Agreement in whole or in part without SoundHound’s prior written consent. SoundHound may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties’ agreements must be in writing, and delivered by overnight courier to the addresses set forth on the SoundHound for Merchants Account Setup (or any updated address properly noticed hereunder). SoundHound’s address is 5400 Betsy Ross Drive, Santa Clara, CA 95054. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.