RESONATE DATA SERVICES AGREEMENT
THIS RESONATE DATA SERVICES AGREEMENT (this “Agreement”) is made and entered into by and between Resonate Networks, Inc., with its principal offices at 11700 Plaza America Drive, Suite 1000, Reston, VA 20190 (“Resonate”), and the customer who executes this Agreement (“Customer”). This Agreement becomes effective as of the date when authorized representatives of both parties have executed this Agreement (the “Effective Date”). If those authorized representatives execute the Agreement on different dates, the Effective Date shall be the later date, or the date as of which Resonate first provides services under this Agreement, whichever first occurs.
This Agreement sets forth the terms and conditions by which Customer may purchase services and licenses to data from Resonate. Capitalized words and phrases used in this Agreement, if not otherwise defined in context, will have the meanings set forth in the Defined Words and Phrases set forth in Section 15 below.
1. GENERAL
1.1. Orders. Subject to the terms and conditions of this Agreement, Resonate agrees to sell, and Customer agrees to purchase, the Data Services, and licenses to Attributes Data, as identified in an Order. Each Order shall be binding upon the parties only after mutual execution and each Order shall be considered an integral part of this Agreement. In the event of a conflict between the provisions of this Agreement and the terms of any Order, the terms of the Order shall prevail for the services identified therein. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Customer with or as part of any Order shall be binding upon Resonate. Customer’s Affiliates may enter into Orders, subject to the terms and conditions of this Agreement. By executing an Order, such Affiliate shall be deemed to be “Customer” for the purposes of this Order and agrees to be bound by all terms, conditions and obligations of Customer contained in this Agreement and the applicable Order.
1.2. Non-Exclusive. Nothing in this Agreement shall prohibit Resonate from offering Data Services directly or indirectly to any person or entity.
2. DATA SERVICES AND LICENSE.
2.1. Data Services. As set forth in an Order, Resonate shall deliver Attributes Data to Customer on a one-time or recurring basis (as set forth in the Order). Except as otherwise set forth in an Order, Customer will not have access to the Platform as part of the Data Services.
2.2. Data Delivery. As applicable, Customer shall provide Customer Data to Resonate either through a Third Party Service or through direct integration with Resonate. Customer is responsible for timely delivery of the Customer Data in accordance with the Order and Resonate’s instructions. Resonate’s delay or non-delivery of Data Services shall be excused to the extent caused by Customer’s failure to deliver Customer Data in accordance with this Section 2.2.
2.3. Attributes Data License. Subject to Customer’s payment of all applicable Fees and compliance with this Agreement, Resonate grants to Customer a limited, non-transferable, revocable (as permitted in this Agreement), non-exclusive right and license during the license term set forth in the Order, to use, copy and modify the Attributes Data for any non-commercial business purpose, solely within the United States, and subject to any use restrictions set forth in the applicable Order. Customer is strictly prohibited from (i) incorporating or using the Attributes Data for commercial applications in any form whatsoever; and (ii) selling, licensing or otherwise providing access to the Attributes Data to third parties as a stand-alone product or service.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. Proprietary Rights; No Implied Licenses. As between the parties, Resonate owns all Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, (i) the Resonate Data, including Attributes Data; (ii) Resonate’s commercially available software products and services and any models or other derivatives developed using such data; and (iii) the Data Services and all improvements, modifications, machine learning, evolutions, derivative works or innovations made thereto (collectively, “Resonate IP”), even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by Customer. To the extent Customer accrues any copyright or other property interest in and to any Resonate IP or any derivative works made thereto, Customer hereby assigns any and all such rights to Resonate.
3.2. Restrictions. Customer shall not, and shall not permit any Authorized User to: (i) resell, sublicense, distribute or otherwise provide access to the Data Services or Resonate IP to any third party or use the Data Services or Resonate IP outside the scope of the rights granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Data Services or Resonate IP, or otherwise attempt to discover any source code or trade secrets related to the Data Services; (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 Services for any purpose without the express written consent of Resonate; or (iv) use the Services in violation of the limited license herein. Customer shall indemnify, defend and hold Resonate harmless against any damages, losses, claims or judgments arising out of any violation of this Section 3.
4. CUSTOMER DATA
4.1. Ownership. As between the parties, Customer owns all Customer Data. Resonate does not control and is not responsible for the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Customer Data and Customer is solely responsible for its use of all such content.
4.2. License. Customer hereby grants to Resonate a non-exclusive license to the Customer Data to use, store, process, analyze and display Customer Data in reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by or derived from the Data Services to (i) perform its obligations under this Agreement; and (ii) solely where Customer Data is used in the aggregate and in conjunction with other data provided to Resonate from third party sources, for the purpose of improving services including without limitation, corroborating the association of data points within Resonate’s data repositories.
4.3. System Use Information. Aggregated, anonymized or de-identified information regarding Customer’s use of the Data Services shall not be considered Customer Data and Resonate may use and disclose such information in its discretion so long as it does not identify Customer as a user of the Data Services.
5. CUSTOMER REPONSIBLITIES
5.1. Customer Data. Customer represents, warrants and covenants that it has all rights, consents, and permissions necessary for Resonate to receive and process Customer Data in accordance with this Agreement. Customer represents, warrants and covenants that its provision of Customer Data in connection with the Data Services shall comply with all Applicable Laws. Customer shall not transmit, provide, or otherwise make available to Resonate Sensitive Data of any kind.
5.2. Use. Customer represents, warrants and covenants that its use of the Data Services and the Attributes Data will be legal, and specifically that it will comply with all applicable privacy and data protection laws, rules, and regulations related to its use of the Attributes Data. It is Customer’s sole responsibility to honor all Do Not Call, Do Not Mail, and similar Do Not Solicit federal, state, county and local regulations. Customer acknowledges that certain states have enacted laws placing restrictions on telemarketing activities, including but not limited to permitting a telephone subscriber to give public notice that he/she does not wish to receive sales solicitation telephone calls. Resonate disclaims any warranty, express or implied, that the names and/or telephone numbers of all such subscribers have been identified on or deleted from the Attributes Data.
6. CHARGES, PAYMENT AND TAXES
6.1. Charges. Customer will pay all amounts as set forth in an Order, without offsets or deductions, no later than the date on which they are due. All charges are non-refundable, and all services are non-cancellable.
6.2. Payment Terms. Invoices will be due and payable in accordance with the terms of the Order, or if no payment term is specified, all fees shall be invoiced immediately upon execution and due no later than thirty (30) days from the date of invoice. Customer will pay all fees in immediately available U.S. funds by wire transfer or other method as mutually agreed to by the parties.
6.3. Late Payment. Any invoiced amount not paid by when due will incur 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. If Resonate undertakes collection efforts due to non-payment, Customer shall be responsible for all reasonable costs of collection, including attorneys’ fees. Additionally, Resonate may, in its sole discretion and in addition to its remedies under this Agreement or pursuant to applicable law, suspend all services, immediately upon notice, until Customer has paid the full balance owed.
6.4. Taxes. The charges do not include 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. If any authority imposes a duty, tax or similar levy, Customer agrees to pay, or to promptly reimburse Resonate for, all such amounts.
7. CONFIDENTIALITY
“Confidential Information” means any non-public information relating to or disclosed in the course of this Agreement by either party or its agents that is: (i) fixed in a tangible medium and marked as the confidential or proprietary information of the disclosing party; (ii) otherwise provided or disclosed by or on behalf of the disclosing party marked as proprietary at the time the information is provided; or (iii) not falling within any of the prior clauses of this sentence, but which, a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure. 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 will not share Confidential Information with third parties, except as provided in this Agreement. The receiving party 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. 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.
8. COMPLIANCE AND INDUSTRY BEST PRACTICES
8.1. Laws and Industry Standards. Customer shall comply with Applicable Laws in its provision of Customer Data and in its use of Resonate IP. Resonate shall comply with Applicable Laws in its provision of the Data Services and the Attributes Data.
8.2. Privacy Policies. Each party shall each have an easily accessible privacy policy, the presentation, posting and content of which shall comply with all Applicable Laws, and which shall be linked to conspicuously from the home page(s) of such party’s website, with a link that contains the word “Privacy”.
8.3. Security Policies.
8.3.1. Each party shall maintain and comply with reasonable security measures (including administrative, technical and physical safeguards appropriate for such party’s size and complexity, the nature and scope of its activities, and the sensitivity of the information received from the other party) designed to protect the security, confidentiality, and integrity of the Platform and any data or information contained in or derived from the Platform. Resonate’s security measures shall be no less rigorous than as set forth in the Resonate Security Policy.
8.3.2. Customer shall as soon as reasonably practical after discovery and subject to any reasonable restrictions placed on Customer by any law enforcement agency in the process of conducting a related investigation, report to Resonate any known unauthorized disclosure of Resonate Data, including the full details of such disclosure, and take all such measures as may be necessary to prevent any further disclosure.
8.4. Data Protection. The parties shall comply with the Data Protection Addendum.
9. TERM AND TERMINATION
9.1. Term. Unless sooner terminated in accordance with the provisions of this Section 9, the term of this Agreement commences on the Effective Date and continues until all Order(s) have been terminated or expired (the “Term”). Unless otherwise set forth on an Order, the term on each Order will automatically renew for successive twelve-month periods, unless either party gives the other party notice of non-renewal at least sixty (60) days before the end of the term set forth on the applicable Order.
9.2. Early Termination For Cause. Either party may terminate this Agreement, including all Orders, 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 thirty (30) days after written notice; (b) commits any act with the intent to defraud the other party or any third-party; or (c) becomes insolvent, files for bankruptcy, makes arrangement for the benefit of creditors, insolvency or receivership proceedings by or against such party. In the event that Resonate terminates this Agreement in accordance with this Section 9.2, all licenses granted hereunder are revoked and Customer shall cease using and immediately destroy all Attributes Data in its possession. Upon request, Customer shall provide written certification of its compliance with the foregoing sentence.
9.3. Effect of Termination. Upon termination of this Agreement, (i) Resonate shall have no further obligation to perform the Data Services; (ii) Customer shall immediately cease any and all use or distribution of the Attributes Data; (iii) Resonate will have no obligation to store, retain or return Customer Data and may, unless legally prohibited, delete Customer Data from its systems; (iv) neither party shall have continuing rights to the other party’s Confidential Information; and (v) any payment obligations that have accrued but remain unpaid will become immediately due and payable. Resonate shall have no liability to Customer for termination or cancellation of this Agreement by Resonate, including without limitation, liability for damages on account of loss of income or for expenditures, loss of goodwill or business opportunity.
10. WARRANTIES AND DISCLAIMER AND LIMITATION OF LIABILITY
10.1. Mutual Warranties. Each party represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
10.2. Resonate Warranties. Resonate represents and warrants that it has the necessary equipment, computer capacity, software, programs, and trained personnel to properly provide the Data Services consistent with standard industry practices. Customer’s sole remedy in the event of a breach of this warranty shall be for Resonate to re-perform the Data Services at no cost to Customer, provided, that Customer notifies Resonate in writing of any such deficiency within fifteen (15) business days of delivery of the applicable Data Services:
10.3. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DATA SERVICES AND RESONATE DATA (COLLECTIVELY, THE “SERVICES”) 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 SERVICES OR CUSTOMER’S USE OF THE SERVICES, OR ANY DATA OR INFORMATION OBTAINED VIA THE SERVICES 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.
11. LIMITATION OF LIABILITY
11.1. EXCEPT FOR (i) A BREACH OF SECTION 3 (INTELLECTUAL PROPERTY RIGHTS); AND (ii) CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE, 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.
11.2. EXCEPT AS SET FORTH IN SECTION 11.3, RESONATE’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO RESONATE UNDER THE ORDER GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
11.3. RESONATE’S TOTAL LIABILITY TO CUSTOMER AND ITS AFFILIATES FOR DATA PROTECTION CLAIMS (INCLUDING FOR DAMAGES OR LIABILITY OF ANY TYPE), SHALL, IN THE AGGREGATE, NOT EXCEED TWO TIMES (2X) THE FEES ACTUALLY PAID TO RESONATE UNDER THE ORDER GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
12. INDEMNIFICATION
12.1. Indemnification of Customer.
12.1.1. Resonate agrees to defend or settle any claim brought against Customer by an unaffiliated third party arising from (i) Resonate’s provision of the Data Services in violation of Applicable Laws, or (ii) allegations that the Attributes Data, as delivered to Customer by Resonate, infringes such third party’s patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights, trademarks or trade secret rights under applicable laws (an “Infringement Claim”). Resonate shall pay all amounts that are finally awarded against Customer based on any such claims by a court of competent jurisdiction or any amounts that Resonate has agreed to pay in settlement of the relevant third-party claim.
12.1.2. If an Infringement Claim is made or appears possible, Customer agrees to permit Resonate, at Resonate’s sole discretion, to: (i) enable Customer to continue to use the Attributes Data, as applicable; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and in the case of this clause (iii), Resonate shall in connection with such requirement refund unearned pro rata portion of fees attributable to the materials or portion of the Data Services with regard to which the use is discontinued.
12.1.3. Resonate will have no obligation to indemnify for an Infringement Claim where the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) the modification of any Resonate product or services or data not made by Resonate; or (ii) Customer Data, as delivered by Customer to Resonate.
12.1.4. THE PROVISIONS OF THIS SECTION 12.1 SET FORTH RESONATE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
12.2. Indemnification of Resonate. Customer shall defend or settle any claim brought against Resonate by a third party arising from Customer’s breach of this Agreement. Customer shall pay all amounts that are finally awarded against Resonate based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.
12.3. Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this Section 12, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
13. 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 Services or canceling, changing, or superseding any material term or provision of this Agreement (collectively “Regulatory Requirement”), Resonate may modify the terms of this Agreement as necessary to comply with such Regulatory Requirement. If a change to this Agreement has a material adverse impact on Customer, then Customer may object to the change by notifying Resonate within thirty (30) days after Resonate provides notice. If Customer so notifies Resonate, then Customer will remain governed by the Agreement in effect immediately before the change until the earlier of: (i) the end of the then-current Subscription Term; or (ii) twelve (12) months after the notice was given. Customer shall have no right to object to a Resonate modification that is required by a court order or Applicable Law, or that applies exclusively to new Services or functionality.
14. MISCELLANEOUS
14.1. 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.
14.2. 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.
14.3. 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.
14.4. 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.
14.5. 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.
14.6. 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.
14.7. 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 3, 4.1, 5, 6, 7, 8, 9.3, 10.1, 10.3, 11, 12, 13, 14 and 15, as well as any outstanding payment obligations.
14.8. Assignment. Except for assignment to United States headquartered 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.
14.9. Marketing Materials and Communications. Without conveying any right, title or interest, Customer agrees that Resonate may utilize Customer’s Marks and make accurate informational references to Customer’s in connection with its performance of the Services, including to identify Customer as a Resonate customer on the Resonate website, in client lists and other marketing materials. Resonate shall promptly cease the use of any Mark owned by Customer in connection with the performance of the Services upon receipt of notice from the Customer to discontinue such use. In the event that Resonate makes reference to any Mark that is inaccurate, or otherwise incorrect, then Customer may notify Resonate of the necessary correction(s) and Resonate shall implement such correction(s) as soon as is reasonably practicable.
14.10. Notices. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in the Order or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee upon: (a) personal delivery; (b) the second business day after being mailed or couriered; or (c) the day of sending by email, except for notices of breach (other than for non-payment) or an indemnifiable claim, which for clarity must be made by mail or courier. Notwithstanding the foregoing, notices from Resonate relating to account information and renewal may be sent via email to the Business or Accounting Contacts identified in the applicable Order.
14.11. 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.
14.12. 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.
14.13. 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.
14.14. 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.
14.15. Entire Agreement. This Agreement, together with any Orders, 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, including each party’s respective confidentiality obligations. 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.
15. DEFINED WORDS AND PHRASES. For the purposes of this Agreement, certain capitalized works and phrases will have the meaning set forth or cross-referenced below.
15.1. “Affiliate” means any present or future company that, directly or indirectly, controls, is controlled by or is under common control with a party.
15.2. “Applicable Laws” means: (i) Data Protection Laws; (ii) generally accepted self-regulatory and industry standards applicable to digital marketing, including those of the Digital Advertising Alliance and the Interactive Advertising Bureau; and (iii) applicable federal or state laws or regulations as now or as hereafter become effective, which, in the case of Resonate, relates to Resonate’s provision of the Services and processing of the Customer Data, and, in the case of Customer, relates to Customer’s use of the Data Services (including the Resonate Data) and its collection and provision of the Customer Data.
15.3. “Attributes Data” means Resonate Data that is delivered to Customer as part of the Data Services
15.4. “Customer Data” means data or data files that are uploaded by or on behalf of Customer for processing by the Data Services.
15.5. “Data Protection Addendum” means the Resonate Data Protection Addendum, made available at https://www.resonate.com/data-processing-addendum.
15.6. “Data Protection Claims” means any claims arising from a party’s breach of Sections 7 (Confidentiality) 8.3 (Security Policies) or 8.4 (Data Protection), or breach of Data Protection Laws which results in the unauthorized access to or use of any Personal Information.
15.7. “Data Protection Laws” means all U.S. laws applicable to the respective party’s Processing of Personal Information, including the California Consumer Privacy Act of 2018, as amended, including as amended by the California Privacy Rights Act of 2020, and any regulations thereunder (the “CCPA”), the Colorado Privacy Act and any rules thereunder, the Connecticut Act Concerning Personal Data Privacy and Online Monitoring of 2022, the Utah Consumer Privacy Act of 2022, the Virginia Consumer Data Protection Act, the Texas Data Privacy and Security Act (TDPSA) of 2023, the Oregon Consumer Data Privacy Act (OCDPA) of 2023, Montana Consumer Data Privacy Act (MCDPA) of 2023 and other US state privacy laws similar in scope to the foregoing that contemplate similar consumer rights, including but not limited to the following laws Minnesota Consumer Data Privacy Act (MNDPA), for Iowa, an Act relating to Consumer Data Protection (Iowa CDPA); the Delaware Personal Data Privacy Act (DPDPA); the Nebraska Data Privacy Act (NDPA); and New Hampshire’s law, an Act relative to the Expectation of Privacy (NHPA), New Jersey’s law, an Act Concerning Online Services, Consumers, and Personal Data (NJDPA), the Tennessee Information Protection Act (TIPA), the Maryland Online Data Privacy Act (MODPA), the Indiana Consumer Data Protection Act, (Indiana CPDA), and the Kentucky Consumer Data Protection Act (KCDPA), each as and when they become applicable, as amended, and including any rules and regulations promulgated thereunder (“Other US State Privacy Laws”). The foregoing regarding Other US States Privacy Laws excludes privacy laws enacted by any state that are materially different in form or scope.
15.8. “Data Services” means delivery by Resonate to Customer of certain Attributes Data on a licensed basis. Data Services do not involve access to the Platform.
15.9. “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
15.10. “NAI Code” means NAI Code of Conduct which is a set of self-regulatory principles published by the Network Advertising Initiative.
15.11. “Marks” means a party’s name, trade names, trademarks or service marks.
15.12. “Order” means an order for the Services that is executed by Resonate and Customer or its Affiliates.
15.13. “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household that is processed for or on behalf of Customer under this Agreement.
15.14. “Platform” means Resonate’s proprietary platform of servers, software and technology that is hosted, served, or managed by Resonate or Resonate’s third-party service provider.
15.15. “Resonate Data” means insights, data, reports or information contained in or derived from Resonate products and services (e.g. Resonate research data; third party data; survey data, etc.), included Attributes Data but excluding Customer Data.
15.16. “Resonate Security Policy” means the Resonate Security Policy, made available at https://www.resonate.com/security-policy.
15.17. “Sensitive Data” means Personal Data that is classified as sensitive or special categories of data under applicable data protection laws, such as racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data, health data, sex life or sexual orientation data, credit card or other financial account information, protected health information, precise geographic location, as well as those elements described as sensitive information under State Data Privacy Laws.
15.18. “State Data Protection Laws” means U.S. state laws regarding data protection and data privacy, including California Consumer Privacy Act of 2018 (“CCPA”), California Privacy Rights Act of 2020 (“CPRA”), Connecticut Data Privacy Act (“CTDPA”), Virginia Consumer Data Protection Act (“VCDPA”), the Colorado Privacy Act (“CPA”) and any successor legislation.
15.19. “Third Party Service” means a data delivery platform(s) that is owned and operated by a third party, as indicated on an Order.