THIS MASTER SUBSCRIPTION AGREEMENT (this “Agreement”) is made and entered into by and between RESONATE NETWORKS, INC., with its principal offices at 11720 Plaza America Drive, 3rd Floor, Reston, VA 20190 (“Resonate”), and Customer (as defined in the applicable Order Form) and is effective upon the execution of the order form (the “Effective Date”). This Agreement describes the terms under which Customer may utilize the Platform as set forth herein and as specified in one or more Order Forms executed by Customer in connection herewith and incorporated herein.
The parties agree as follows:
1. ORDERING AND SUBSCRIPTION PERIOD
1.1. Ordering. By executing one or more Order Forms under this Agreement (each a “Order Form”), Customer may subscribe to the use of specific modules, services and features offered through Resonate’s proprietary platform of servers, software and technology that is hosted, served, or managed by Resonate or Resonate’s third-party service provider and furnished to Customer (“Platform”). Specifications as to Platform modules, services and the features available to Customer will be identified on the Order Form, and will be based on which edition of the Platform Customer subscribes to. All use of the Platform by Customer is subject to the terms and conditions of this Agreement.
1.2. Subscription Period. Unless otherwise specified on the applicable Order Form, the period of use (“Subscription Period”) of the ordered module(s) will be based on the length of the activation campaign and is not cancelable by the Customer during a Subscription Period. Separate Order Forms may have different Subscription Periods.
2. LICENSE; PLATFORM USE AND RESTRICTIONS; DATA COLLECTION AND USE; SUPPORT
2.1. Platform License. For the modules specified in an Order Form and for the applicable Subscription Period for such module, Resonate hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sub licensable right and license to access the Platform, and the Resonate Data contained therein, on a hosted basis to use such module(s) for Customer’s internal business purposes, which may include, informing Customer’s marketing strategy, messaging and creative decisions, and deepening its understanding of its own customers, or as otherwise authorized pursuant to the Order Form. Customer may access the Platform solely through use of a web browser and Customer’s user name and password.
2.2. Account Password and Security; Use of the Platform. Customer’s account with Resonate will provide Customer with access to the Platform and the functionality that Resonate will provide. Customer shall protect its passwords and take full responsibility for Customer’s own as well as any third party use of the Customer account, including the sharing and safeguarding of all Customer or third-party credential information. Customer is solely responsible for any and all activities that occur under its accounts, except for any activities performed by Resonate as set forth herein, and will be primarily liable to Resonate for any and all third party violations of the terms of this Agreement (as applicable) as if it were the party who had committed any such violations. Customer agrees to notify Resonate immediately upon learning of any unauthorized use of its account or any other breach of security. From time to time, Resonate’s support staff may log in to the Platform under an administrator password in order to maintain or improve the Platform, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. Each login (i.e., user name and password) may be used only by a single, individual Customer user. If Customer exceeds the maximum number of authorized users specified in the Order Form, Customer will pay for additional authorized users at the rate stated on the Order Form. Customer is responsible for all use and misuse of the Platform that occurs under Customer’s login credentials, and agrees to immediately notify Resonate of any unauthorized access or use of which Customer becomes aware throughout the Term.
2.3. Platform Modifications. Resonate is constantly innovating its products and services in order to seek to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Platform that Resonate provides may be changed from time to time without prior notice to Customer, including without limitation security patches, added functionality, and other enhancements. Changes to the form and nature of the Platform, but which do not affect the available features in the Platform, will be immediately effective with respect to all editions of the Platform. Enhancements to the then-current edition of the Platform to which Customer has an active subscription, which affect available features in the Platform, will be provided at no additional cost (other than the fees for the applicable Subscription Period as set forth on the Order Form); other enhancements, updates, upgrades, new editions to the Platform may involve incremental fees, if applicable, at Resonate’s sole discretion, subject to written authorization from Customer.
2.4. Restrictions. Customer shall not, and shall not permit any Platform user to: (i) resell, sublicense, distribute or otherwise provide access to the Platform, or any Resonate Data (as defined in Section 10.1 below) or information contained in or derived from the Platform, to any third party or use the Platform outside the scope of the license granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Platform or any Resonate Data, or otherwise attempt to discover any source code or trade secrets related to the Platform and/or the Resonate Data; (iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Platform for any purpose without the express written consent of Resonate; (iv) combine Resonate Data or information contained in or derived from the Platform with the personally identifiable information (“PII”) of any individual for the purpose of targeted advertising; or (v) use the Platform, or data or information contained in or derived from the Platform, in violation of the limited license herein, including for the purpose of determining, or with the intent to determine, the identity of any individual. Customer shall indemnify, defend and hold Resonate harmless against any damages, losses, claims or judgments arising out of any violation of Section 2 of this Agreement.
2.5. Data Collection and Use.
2.5.2 Licenses. Resonate hereby grants to Customer, during the Term of this Agreement, a revocable, non-exclusive license to use Resonate DCS solely for the purposes agreed to in this agreement. Customer grants to Resonate a nonexclusive, worldwide right and license: (i) commencing on the date on which Customer activates the Resonate DCS on any Data Sources and continuing thereafter throughout the Term of this Agreement, to collect DCS Data from the Data Sources via DCS to the extent required to perform Resonate’s obligations or exercise Resonate’s rights under this Agreement (e.g., for purposes of measuring and reporting on ad campaigns, email, or visitation to a Customer Site(s) ); and (ii) during and after the Term of this Agreement to create derivative works leveraging aggregated DCS Data, whether alone or in combination with Resonate Data, in accordance with the requirements of this Section for Resonate’s business purposes, including for developing and improving Resonate products and services
2.5.3 Add-on Products. In addition to access to the Platform, Resonate offers various Add-on/additional products and services (“Add-ons”) as well, which are listed on the attached Order Form. In the event that Customer wishes to purchase any or all of these Add-ons, those additional terms set forth in attachments to this Agreement, on the Order Form and/or in separate agreements or click-throughs provided or made available by Resonate for the Add-ons will apply for their use as well as the terms of this Agreement. Such Add-ons may require agreeing to separate third party license terms and/or paying additional fees relating to Professional or Activation Services and/or any included third party software or other technology as a condition of their use.
2.6. Training and Support; Professional Services; Activation Services.
2.6.1 Training. Resonate will provide training to Customer as specified in the Order Form. Customer’s employees may also attend group training sessions, and/or webinars which Resonate provides periodically for Resonate customers. Training sessions will be conducted at Resonate’s facility and/or at Customer’s location. Customer will reimburse Resonate’s reasonable travel costs and living expenses incurred by Resonate’s employees and subcontractors for travel from Resonate’s offices in connection with the performance of training services.
2.6.2 Customer Support. Resonate will make all training documentation available through the Platform. In addition, Resonate will provide online support (CustomerSupport@resonateinsights.com) and voice support (855-855-3520) during standard business hours (9am-9pm ET), in accordance with Resonate’s standard service level agreement (“SLA”) attached hereto as Exhibit A. Service requests that fall outside of the scope set forth in the SLA will be considered Professional Services, pursuant to Section 2.6.5 below, with additional prices quoted separately from the fees set forth on the Order Form for access to the Platform.
2.6.3 Back-Up. Resonate will perform routine backups of the Platform, including all campaign data, DCS Data, Customer Data and other related data received from vendors on a daily basis. All backup media will be regularly transitioned to off-site secure facilities belonging to or under the control of Resonate. If any Customer Data is corrupted, lost, or deleted from the Platform, Resonate’s sole responsibility shall be to use reasonable efforts to restore promptly any Customer Data from backup media as soon as practicable. Notwithstanding the foregoing, Customer acknowledges that it will be primarily responsible for backing up the Customer Data, and that any failure by Resonate to perform the routine backup contemplated in this Section 2.6.3 will not constitute a breach of this Agreement, and that Resonate will not have any liability to Customer for any failure to provide any backup of any Customer Data or DCS Data whatsoever.
2.6.4 Hosting. During the Subscription Period, Resonate will host, operate, and maintain the Platform to provide Customer with access to the Platform. The cost of hosting services is included in the fee for the Platform as set forth on the Order Form. Customer is responsible for all costs as necessary to connect and access the Platform.
2.6.5 Professional Services. Customer may from time to time during the Term of this Agreement, request additional customized services or training sessions (collectively, “Professional Services”). All requests for such Professional Services from Resonate will be subject to Resonate’s availability, feasibility of such request and additional fees at Resonate’s then-current rate for Professional Services (or such other fees based on the scope of the requested services). All Professional Services will be considered Resonate IP and will be owned by Resonate in accordance with Section 10.
2.6.6 Activation Services. Customer may from time to time during the Term of this Agreement, request additional services relating to internet advertising and media purchasing utilizing the Platform (“Activation Services”). All requests for such Activation Services shall, in addition to these terms and conditions, require Customer and Resonate to enter into a separate agreement covering terms and conditions related to such Activation Services prior to the commencement of such Activation Services (“Activation Services Agreement”). In the event of a conflict between the terms of this Agreement and the Activation Services Agreement, the terms of the Activation Services Agreement will govern with respect to the use of the Activation Services and the conflicting term only. All other terms of this Agreement will remain in full force and effect and nothing in the Activation Services Agreement will impact these Terms with respect to use of the Platform or any other Resonate product or service.
4. CHARGES, PAYMENT AND TAXES
4.1. Charges. Customer will be billed for use of the Platform in accordance with the applicable Order Form. The pricing specified in an Order Form will be firm for the initial term of the Order Form. Any Add-On charges and fees are non-refundable, and may change during the Term or upon renewal of any Subscription Period based on identified triggering events as set forth in each Order Form.
4.2. Payment. Invoices will be due and payable thirty (30) days from date of invoice and will be paid in immediately available U.S. funds by wire transfer or other method as mutually agreed to by the parties. Any invoiced amount not paid by the due date will bear a late payment charge at the rate of one and a half percent (1.5%) per month (or such lower amount as may be permitted by law) until paid. Payment schedules, amounts, and other related payment terms will be as set forth on the Order Form. If Resonate undertakes collection efforts due to non-payment in accordance with the Agreement’s terms, Customer shall be responsible for all reasonable costs of collection, including attorney’s fees.
4.3. Taxes. Fees do not include and Customer shall pay, indemnify and hold Resonate harmless from all applicable sales/use, gross receipts, value-added, GST or other tax on the transactions contemplated herein, other than taxes based on the net income or profits of Resonate.
“Confidential Information” means, subject to the use license granted in Section 10.2, any non-public information relating to or disclosed in the course of this Agreement by either party, including the Platform and Resonate Data or information contained in or derived from the Platform. The receiving party will not share Confidential Information with third parties (except as otherwise provided in this Agreement, including Section 2), will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only as expressly permitted in this Agreement and for fulfilling its obligations under this Agreement. Confidential Information does not include information that: (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party without restriction; (c) is independently developed by the receiving party without violation of this Section and reference to the Confidential Information; or (d) is received from a third party without restriction. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. At the request of the disclosing party, the receiving party will return all of the other party’s Confidential Information that is reduced to writing(s), drawing(s), schematic(s), or any other form of documentation, or destroy all such material, and permanently delete if in electronic form, and to certify the destruction to the disclosing party, provided however, if the Agreement is not terminated for cause, the Customer may retain copies of the reports or information printed or obtained through the Platform subject at all times to the license restrictions specified in Sections 2.2 and 2.4 and the non-disclosure requirements of this Section 5.
6. TERM AND TERMINATION
6.1. Term. Unless sooner terminated in accordance with the provisions of this Section 6 below, the term of this Agreement commences on the Effective Date and continues until all Subscription Periods as set forth in the applicable Order Form(s), including any renewals thereof, have been terminated or expired (the “Term”).
6.2. Early Termination and Suspension.
6.2.1. For Cause. Either party may terminate this Agreement, any or all Order Forms, and any Addendum or additional agreement entered into between the parties, including for Professional or Activation Services, immediately upon written notice to the other party, if the other party: (a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within fifteen (15) days after written notice; (b) commits any act with the intent to defraud the other party or any third-party; and (c) immediately by Resonate in the event that Customer (i) commits a material breach of Sections 2.2 or 2.4 of this Agreement or (ii) upon the filing by Customer of bankruptcy, arrangement for the benefit of creditors, insolvency or receivership proceedings by or against Customer. In addition, Resonate may immediately suspend access to the Platform if Customer’s payment is past due by sixty (60) days or more.
6.2.2. For Convenience. Customer may not terminate this Agreement or any active Order Form for any reason other than Cause as defined above unless explicitly stated in any Order Form attached hereto.
Resonate may terminate this Agreement, any or all Order Forms, and any Addendum or additional agreement entered into between the parties, including for Professional or Activation Services, immediately upon written notice to the Customer.
6.2.3. Effect of Termination. Upon termination of this Agreement, all license rights granted to Customer hereunder will immediately terminate and Customer will: (i) cease use of the Platform, including all Resonate Data or information contained in or derived from the Platform; (ii) destroy or (if requested by Resonate) return to Resonate all copies or other embodiments of any and all data or information contained in or derived from the Platform, and all other Resonate Confidential Information; (iii) disable and return any Resonate-generated DCS, including any pixels, that Customer has deployed; and (iv) pay to Resonate all amounts due and owing under this Agreement. In addition, upon termination of this Agreement by Customer for any reason, Customer agrees to pay a daily pro-rata rate of the applicable Order Form until every Resonate DCS has been disabled by Customer on the Customer Data Sources.
6.3. Treatment of Customer Data at Termination. After termination or expiration of this Agreement, Resonate has no obligation to retain, and may delete, any and all Customer Data from the Platform at any time after thirty (30) days from any such termination or expiration.
7. DISCLAIMER AND LIMITATION OF LIABILITY
7.1. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM AND ALL DATA AND INFORMATION OBTAINED VIA THE PLATFORM ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, RESONATE MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, RELATING TO THE PLATFORM OR CUSTOMER’S USE OF THE PLATFORM, OR ANY DATA OR INFORMATION OBTAINED VIA THE PLATFORM OR PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
7.2. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 2.2 or 2.4, AND EACH PARTY’S RESPECITVE INDEMNIFICATION OBLIGATIONS, (A) EACH PARTY’S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS OF WHATEVER NATURE ARISING OUT OF THE PROVISION AND USE OF THE PLATFORM OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO RESONATE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE MAKING OF THE CLAIM PURSUANT TO THE ORDER FORM UNDER WHICH THE CLAIM AROSE, AND (B)NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL LOSS OR DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, OR LOST PROFITS, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF THE PARTY AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE
Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes (individually, each such event a “Force Majeure Event”).
9.1. Compliance with Laws. Each party shall comply with all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any government authority with respect to the use by Customer, and provision by Resonate, of the Platform and any data or information contained in or derived from the Platform. In addition, each party will comply with all applicable laws and regulations in performing its obligations and exercising its rights under this Agreement, including but not limited to, all applicable privacy regulations and all applicable generally respected self-regulatory requirements, including those of the Digital Advertising Alliance (“DAA”) or the Network Advertising Initiative (“NAI”). By way of illustration, and without limiting the generality of the foregoing, Customer will not merge any Resonate Data with any PII for any online behavioral advertising (“OBA”) purposes, or attempt to re-identify the individuals related to that Data for OBA or other purposes.
9.3. Indemnity. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party” and in each case a “Customer Indemnified Party” and “Resonate Indemnified Party”) (and its officers, directors, agents, and employees) against any damages, losses, claim, judgments, settlements, and other expenses (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of any third party claim occasioned by any violation of Sections 5, 9.1 and 9.2. Customer will indemnify, defend and hold harmless a Resonate Indemnified Party against any third party Claims arising out of or related to (a) any breach or alleged breach by Customer of any of its representations, warranties or obligations set forth in Sections 2, 10.2, and 10.3, and (b) Customer’s implementation of a DCS on a Customer Data Source and the resulting collection of DCS Data, including all required privacy notices related thereto. In addition, Resonate will indemnify, defend and hold harmless a Customer Indemnified Party against any third party Claims that the Platform infringes the copyright, trademark, trade secret or U.S. patent rights of any third party. If the Platform is, in the opinion of Resonate, likely to or does become the subject of a Claim for infringement that is covered by the indemnity provisions of this Section, Resonate may, at its sole discretion and expense, either (a) procure for Customer the right to continue using the Platform, (b) substitute an equivalent non-infringing component of the Platform, (c) modify the Platform so that it is non-infringing or (D) terminate this Agreement. The foregoing shall be Customer’s sole and exclusive remedy, and Resonate’s sole obligation, in the case of a Claim of infringement under this Agreement.
9.4. Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim, provided, however, that any delay in providing such notice shall not relieve the Indemnifying Party of any of its obligations except to the extent that the Indemnifying Party is actually prejudiced by such delay. The Indemnifying Party shall have the right to control the defense and settlement of any indemnified Claim, provided that (a) the Indemnified Party shall have the right to participate in the defense and settlement of the Claim with counsel of its own choosing and its own expense, subject to the Indemnifying Party’s control thereof; and (b) neither party has the right to compromise or settle any Claim in a manner which affects the other party’s rights, makes admissions on the other party’s behalf or obligates the other party to take or not take any action, including, without limitation, the payment of money, without such party’s prior written approval, which shall not be unreasonably withheld or delayed. Except as expressly stated in this Agreement to the contrary, this indemnity provision is in addition to any other liability that either party may otherwise have.
10. INTELLECTUAL PROPERTY AND OWNERSHIP
10.1. Resonate Ownership. Customer agrees that, as between the parties, Resonate owns all intellectual property rights and all other proprietary interests in and to the Resonate IP. Resonate grants no rights other than the rights expressly granted to Customer under the Agreement. For purposes of this Agreement, “Resonate IP” means: the Platform (including all software, applications, processes, technology and other intellectual property utilized in the Platform, and in delivery of Resonate’s services for Customer specified herein, including any derivative works based on Resonate intellectual property); all data or information contained in or derived from the Platform (e.g., Resonate research data; third party data; survey data, etc.) (collectively, “Resonate Data”); all Resonate DCSs, including pixels, and all derivative works derived from the DCS Data. To the extent Customer accrues any copyright or other property interest in and to any Resonate IP or derivative work, Customer hereby assigns any and all such rights to Resonate.
10.2. Customer Ownership. Resonate agrees that, as between the parties, Customer owns: all first party data collected and stored by Customer about visitors to the Company Sites and that is directly provided by Customer to Resonate for use with the Platform hereunder (e.g., CRM data) (“Customer Data”); as well as the DCS Data, if applicable, although all derivative works of such DCS Data developed by Resonate shall be deemed Resonate IP, subject to Customer’s ownership rights in the DCS Data and the license granted to Resonate in Section 2.5.2; and all reports or analysis produced during the Term that incorporate the Customer Data and/or that are produced using the Resonate Data, subject to Resonate’s ownership rights and the limited license granted in Section 2.1, during the Term of any Order Form(s). Notwithstanding anything to the contrary contained in this Agreement, including Section 5, Customer hereby grants to Resonate a perpetual license to use such Customer Data, for enhancing the Platform, Resonate’s methodologies, and improvement and development of Resonate’s products and services subject to the limitations specified in Section 2.2 above.
10.3. Feedback. Customer agrees that Resonate will have a perpetual right to use and incorporate into the Platform any feedback or suggestions for enhancement that Customer provides to Resonate concerning the Platform (“Feedback”), without any obligation of compensation.
11. REGULATORY REQUIREMENT
If a regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order that has the effect of materially increasing the cost to provide use of the Platform or canceling, changing, or superseding any material term or provision of this Agreement (collectively “Regulatory Requirement”), this Agreement shall be deemed modified in such a way as the parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the parties not be able to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then, upon written notice, either party may, to the extent practicable, terminate that portion of the Agreement impacted by the Regulatory Requirement.
12.1. Independent Contractors. Resonate and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of this Agreement. Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between Resonate and Customer. Neither party has any authority to enter into agreements of any kind on behalf of the other party. Each party shall be solely responsible for and shall hold the other harmless from any and all claims for employment-related or similar taxes, fees, or costs, including but not limited to withholding, income tax and workers’ compensation.
12.2. Non – Solicitation. Neither party will hire, or contract with, or solicit or induce for any such purpose, any of the other party’s employees or subcontractors during the term of the agreement and for a period of six (6) months after the termination or expiration of such agreement. Each party hereby agrees that, in the event of a violation of this Section 12.2, it will be impossible to calculate the damages suffered by the non-defaulting party and therefore in the event of such a violation, the defaulting party shall pay the other party a recruitment fee in an amount equal to forty percent (40%) of (1) the annual base salary of any such employee during the year prior to or after the violation, whichever is greater; or (2) the total sums paid to any such subcontractor by the non-defaulting party during the year prior to the violation or by the defaulting party during the year after the violation, whichever is greater. The terms of this Section 12.2 shall not apply to solicitations and employment/contracts through mass media employment or “want ads” not specifically directed towards the employees or subcontractors of the other party. The terms of this paragraph shall survive the termination of the Agreement.
12.3. Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other party, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach or default or shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
12.4. Partial Invalidity. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and both parties shall negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision that is consistent with the original intent of the parties.
12.5. Amendment. Except as otherwise provided in this Agreement, this Agreement may be amended by the parties hereto at any time only by execution of an instrument in writing signed on behalf of each of the parties hereto. Any extension or waiver by any party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such party.
12.6. Binding Effect. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
12.7. Survival. Termination of this Agreement shall not affect either party’s accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended, including without limitation, Sections 2.2, 2.4, 4, 5, 6.3, 6.4, 7, 9, 10 and 12, and any outstanding payment obligations.
12.8. Assignment. Except for assignment to affiliates, Customer may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of Resonate. Resonate may assign this Agreement to an affiliate or other entity without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of the foregoing shall be void.
12.9. Marketing Materials and Communications. Customer agrees that Resonate may utilize Customer’s trademark and/or trade name solely to identify it as a Resonate Customer on the Resonate website, in client lists and other marketing materials. Any other uses of Customer’s name and/or logo (other than as included in the Customer Content and/or other items furnished to Resonate by Customer) shall require Customer’s prior written consent.
12.10. Notices. Unless otherwise specified, any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent by certified mail with the required pre-paid postage and return receipt requested, or delivered by a recognized courier service, shipment charges pre-paid, properly addressed to the individual signing this Agreement on behalf of the applicable party at its address specified in the opening paragraph of the Agreement and shall be deemed effective upon receipt.
12.11. Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
12.12. No Third Party Beneficiaries. Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
12.13. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia (irrespective of its choice of law principles). Each party consents to the exclusive jurisdiction of the state and federal courts sitting in the Eastern District of Virginia in any action, suit or proceeding hereunder. Each party specifically waives any right to trial by jury in any court with respect to any claim against the other arising out of or connected in any way to this Agreement.
12.14. Counterparts; Electronic Signature. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.
12.15. Entire Agreement. This Agreement, together with any Order Forms, schedules, exhibits, Addenda, or other attachments attached hereto or referenced herein, all of which are incorporated by reference, sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby. Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.
Resonate Networks, Inc.
Service Level Agreement
1. Service Uptime Commitment
a) Provided that Customer is in compliance with the terms and conditions of the Agreement to which this Service Level Agreement is a part, Resonate will undertake commercially reasonable measures to provide availability of the Resonate platform on a twenty-four hour, seven days a week (24×7) basis at a rate of 99.5% per each calendar month; provided however, that any unavailability of the Resonate platform is not caused by Customer’s breach. The total amount of uptime during any calendar month (Resonate Uptime Metric) will be measured in minutes and will calculated by Resonate.
b) Customer Requirements: The standards set forth in this exhibit assume that Customer has deployed all aspects of the Resonate platform within the limitations and configurations provided by Resonate. The obligations of Resonate set forth in this exhibit will be excused to the extent any failures to meet such obligations result in whole or in part from Customer’s or its users’ failure(s) to meet the foregoing obligations. Customer is also responsible for maintenance and management of its computer network(s), servers, software, website(s), and any equipment or services related to maintenance and management of the foregoing. In addition, the service standards set forth in this Exhibit assume that Customer and its end users have a modern web browser and reliable internet connection. If Customer and its end users do not have a modern web browser and/or internet connectivity, then any such failure to access the Provider Services shall not be counted against the Resonate Uptime Metric.
The Resonate Uptime Metric shall not apply to performance issues or downtime due to the following:
a) Overall internet congestion, slowdown or unavailability
b) Unavailability of generic internet services (e.g. DNS Servers) due to virus or hacker attacks
c) Force majeure events as described in the terms of agreement
d) Actions or inactions of customers (unless undertaken at the express direction of Resonate)
e) A result of customer equipment or third-party computer hardware, software, or network infrastructure not within the sole control of Resonate
f) Scheduled maintenance as defined below
g) Beta products
a) Resonate standard scheduled maintenance windows are as follows.
Maintenance Windows (In EST)
Thursday 9 pm – 3 am
Sunday 9 pm – 3am
b) If emergency maintenance is required (e.g., for reasons that were not foreseeable or are beyond the control of Resonate), Resonate will notify the customer as soon as possible via email and/or post a notification inside the platform. Any time dedicated to such emergency maintenance where the platform is not available will not count against the Resonate Uptime Metric.
c) In addition to scheduled maintenance upgrades and patches may occur approximately four times a year and may require downtime. Customers will be provided a minimum of 24 hour notice of these upgrades and patches. Resonate will communicate the date and time that Resonate intends to make the platform unavailable via email and/or the post a notification inside the platform.
If Resonate fails to meet the Resonate Uptime Metric due to its violation of the conditions set forth in Sections 1, 2 and 3 above, Customer will be entitled, upon request, to a credit against the following month’s payment obligations equal to a percentage of the monthly fees accrued in the month of the violation according to the tables below, up to a monthly maximum of 10% of the aggregate fees paid by Customer for the applicable month. The credit set forth in the preceding sentence is Customer’s sole and exclusive remedy, and Resonate’s sole obligation for a breach by Resonate of the Resonate Uptime Metric. Tests performed by Customer or any of its service providers or vendors will not be recognized by Resonate as a valid determination of availability or latency or the duration of any service-related event.
Availability | Credit
>97% but less 99.5% | 5%
>95% but less 97% | 7%
< 95% | 10%
5. Customer Support
a) Support Hours: Resonate provides Customer Support based on the table below. The working day for the Customer Support Team is 9am to 9pm EST time excluding holidays (“Primary Hours”). During all other hours (“Secondary Hours”), Provider will provide Priority 1 Customer Support as defined below.
Time Period (In EST) | Description | Customer Support
9:00 am – 9:00pm Monday – Friday | Primary Hours | All Priority
24 hour/ 7 days per week | Secondary Hours | Priority 1 Only
b) Provider Support Response: Provider shall respond to calls based on the priority such calls have been assigned by Customer and Provider.
Priority 1 – Critical
Events of the most critical nature. This category is characterized by the following:
• Service unavailability
• Actual or alleged security breaches
Provider responsibilities include:
• Primary Hours: < 30 minute response.
• Secondary Hours: < 4 hour response.
• Provider will assign resources in order to resolve the issue or to propose a work around to the issue.
• Follow-up status communicated to Customer every 4 hours.
Priority 2 – Urgent
Customer Support incidents such as degraded services performance, and impaired services functionality.
Provider responsibilities include:
• Primary Hours: < 2 hour response
• Provider will make best efforts to resolve or to propose a workaround within 1 business day.
Priority 3 – Inquiry
All customer inquiries including, but not limited to, customer requests for information and instructions for normal operations.
• Primary Hours: < 8 hour response
c) Access to Support. Customer may report Unscheduled Downtime at any time (“24x7x365”) by telephoning Provider at 855-855-3520 or sending an email to CustomerSupport@resonate.com.
Dedicated Customer Resource. Resonate requires Customer to identify a primary and secondary resource that will be the main point of contact for follow-up conversations regarding outstanding requests.