RESONATE MASTER SUBSCRIPTION SERVICES AGREEMENT
THIS RESONATE MASTER SUBSCRIPTION 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. Where Customer is a media agency using the Services on behalf of its clients, the terms of the Resonate Agency Addendum , shall also apply to Customer’s use of the Services and shall be considered part of the Agreement.
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 17 below.
1. ORDERS. Subject to the terms and conditions of the Agreement, Resonate agrees to sell, and Customer agrees to purchase, the Services set forth in any mutually executed Order that references this Agreement (each, an “Order”). Each Order shall be binding upon the parties only after mutual execution and each Order shall be considered an integral part of the Agreement. The term of the Agreement shall commence on the start date set forth in the applicable Order (the “Effective Date”). In the event of a conflict between the provisions of these Terms and the terms of any Order, the terms of the Order shall take precedence, but only for the Services set forth in such Order. 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 these Terms. By executing an Order, such Affiliate shall be deemed to be “Customer” for the purposes of the applicable Order and agrees to be bound by all terms, conditions and obligations of Customer contained in the Agreement and the Order.
2. SAAS SERVICES.
2.1. Access and Use. Where Customer has purchased Access Rights, Resonate agrees to provide Customer with access to certain features and functions of the Platform, during the Subscription Term (“SaaS Services”). Subject to Customer’s payment of all applicable Fees and compliance with the Agreement, Resonate hereby grants Customer during the Subscription Term a personal, non-exclusive, non-transferable, non-sublicensable, revocable (as provided herein) right to access and use the SaaS Services and the Resonate Data, solely for the Permitted Use and subject to any use restrictions set forth in the Order.
2.2. Service Levels and Support. Resonate will support the SaaS Services in accordance with Resonate’s standard service level agreement, viewable at https://www.resonate.com/service-level-agreement (the “SLA”).
2.3. Authorized Users. Customer’s Authorized Users may access the SaaS Services solely through use of a web browser and the login credentials provided by Resonate to Customer. Customer is fully responsible for compliance with the Agreement by, as well as the acts and omissions of, all users who access the SaaS Services under their Authorized User login credentials, to the full extent as if such end users are employees or agents acting on Customer’s behalf within the scope of their duties. Customer shall not authorize access to or permit use of the SaaS Services by persons other than Authorized Users. Customer shall ensure that no more than one Authorized User will have access to or will use each Authorized User login credentials. Resonate may, at any time and without any liability to Customer, suspend an end user’s access to the SaaS Services in the event Resonate reasonably believes that such user has violated any provision of this Agreement or represents a security or legal compliance risk.
2.4. Documentation. Resonate grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license during the Subscription Term to reproduce copies of its Documentation, solely for use by Customer in connection with the exercise of rights granted in this Agreement. No right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Documentation. Customer shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices that are contained within any copies of the Documentation.
2.5. Hosting; Access. During the Subscription Term, Resonate will host, operate, and maintain the Platform. Resonate will perform routine backups of the Platform. Customer is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary to access and use the SaaS Services.
2.6. Modifications. Resonate may make modifications to the SaaS Services without prior notice to Customer, including without limitation security patches, added functionality, and other enhancements.
2.7. Additional SaaS Service Modules.
2.7.1. Insight Services. Where Customer has purchased a subscription to Insight Services, Resonate will perform such Insight Services in accordance with this Section 2.7. Resonate will deliver to Customer certain proprietary software which may include JavaScript, software development kits, application program interfaces, pixels, hashed emails, or other mechanisms (collectively, “Tags”). Customer is responsible for installing the Tags on Customer-owned or controlled data sources which may include websites, emails and other behavioral collection points (collectively, “Sites”). Once properly installed by Customer, the Tags will fire as a result of each audience interaction with the Tags (each an “Audience Event”). As a result of an Audience Event, the Tags will collect and remit to Resonate web log user data, which may include date/time, unique user id (cookie), IP address, Resonate pixel id, standard http header information (such as user agent or referrer) and optional data included only at the Customer discretion such as hashed email or visitor traits (“Insight Data”). Resonate grants to Customer a revocable, non-exclusive license to install and use the Tags during the Subscription Term, solely for the Permitted Use and in accordance with the Documentation.
2.7.1.1. Implementing Tags. Customer is responsible for implementing and executing the Tags in accordance with the implementation guidelines provided by Resonate. Resonate assumes no responsibility whatsoever regarding the proper implementation or usage of the Tags by Customer. If Customer incorrectly implements a Tag, it may adversely impact Customer’s receipt of Insight Services and SaaS Services. Where Customer implements Tags on a on a site owned or controlled by a third party (a “Site Owner”), Customer represents and warrants that it shall comply with all restrictions and obligations imposed by such Site Owner for the placement of Tags on the Site Owner’s site. Where a Site Owner requests Resonate to execute terms and conditions regarding the placement of Tags on its Site (collectively, “Site Owner Terms”), Customer represents and warrants that it shall comply with such Site Owner Terms and shall not act in a way that would put Resonate in violation of such Site Owner Terms. Customer shall indemnify and hold harmless Resonate and its officers, employees, directors and agents from, and at Resonate’s option, defend against, any and all claims made against a Resonate, to the extent that such claim arises from, or may be in any way attributable to a breach by Customer this Section 2.7.2.
2.7.1.2. Disabling Tags. Customer will remove or suspend all Tags at the end of the Subscription Term. If Customer fails to remove or suspend a Tag, Resonate may continue to record and retain Insight Data in accordance with this Section 2.7 and Customer will incur an excess utilization charge of ten cents ($0.10) per 1000 Audience Events until all Tags are removed or suspended.
2.7.2. Activation Services. Where Customer has purchased a subscription to Activation Services, Resonate shall make available, via the SaaS Services, certain Resonate Data consisting of an individual or an individual’s behavior (“Audience Data”). Subject to the license rights and restrictions set forth in this Section 2.7.4, and solely during the Subscription Term, Customer may export Audience Data for use in online targeting advertisements and campaigns (“Campaigns”).
2.7.2.1. Audience Data License. During the Subscription Term, Resonate grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Audience Data for the sole purpose of engaging in Campaigns, subject to the use restrictions and set forth in the Order.
2.7.2.2. Reporting. Within ten (10) days of the end of each month in the applicable Subscription Term, Customer shall provide to Resonate an accurate list of Customer’s utilization rates (i.e. – CPM rate, impressions, etc.) of the Audience Data. Resonate shall deliver the applicable report form monthly, via email.
3. DATA SERVICES.
3.1. Description. Where Customer has purchased a Data Services, 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.
3.2. 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 3.2.
3.3. 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 Subscription Term, 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.
4. ANCILLARY SERVICES. Resonate will provide the Ancillary Services, if any, as set forth in an Order. If the Ancillary Services involve the delivery of any work product, developments, inventions, technology or materials (collectively, “Deliverables”) except to the extent that such Deliverables include Customer Data or Customer’s Confidential Information, Resonate shall retain ownership of all Deliverables. Resonate grants to Customer a non-exclusive right and license to use the Deliverables solely for the Permitted Use. To the extent that Ancillary Services involve Customer’s access or use of products or services that are sold or licensed by a third party, Customer shall agree to such third party’s license terms, as set forth in the applicable Order.
5. THIRD PARTY SERVICES. Customer may purchase access to Third Party Services or licenses to Third Party Data or Resonate may allow for the integration of Third Party Services by the Platform. All Third Party Services and Third Party Data are offered by Resonate on an optional basis and are not required for use of the Services. Any Third Party Services or Third Party Data utilized by Customer as part of the Services are subject to separate Third Party Terms, even if Resonate acts as an ordering and billing agent and includes fees or charges for Third Party Services or Third Party Data on its invoices to Customer. Customer’s procurement or use of Third Party Services or Third Party Data is solely between Customer and the entity who controls the Third Party Service or Third Party Data, as applicable, and Resonate assumes no responsibility or liability whatsoever for Third Party Services or Third Party Data. Customer is solely responsible for any Third Party Services or Third Party Data that it accesses, installs or uses with the Services and does hereby waive any legal or equitable rights it may have against Resonate, and releases Resonate from any and all liability arising from Customer’s use of, or interaction with, the Third Party Services and Third Party Data. Resonate disclaims all warranties for the Third Party Services or Third Party Data.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. 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, the Services, including the Platform, the Resonate Data, the Deliverables and the Documentation 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.
6.2. Restrictions. Customer shall not, and shall not permit any Authorized User to: (i) resell, sublicense, distribute or otherwise provide access to the Services or Resonate IP to any third party or use the 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 Services or Resonate IP, or otherwise attempt to discover any source code or trade secrets related to the 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 6.
7. TREATMENT OF DATA
7.1. Customer Data.
7.1.1. Ownership. As between the parties, Customer owns all Customer Data (including Insight Data, which shall be treated by Resonate as Customer-owned Personal Information).
7.1.2. Delivery. Customer Data may be delivered to Resonate through (i) Resonate’s direct onboarding services, (ii) onboarding through a Third Party Service, or (iii) as part of Insight Services. Customer’s procurement or use of Third Party Services for data onboarding is solely between Customer and the entity who controls the Third Party Service and Resonate shall have no liability for such Third Party Services. Customer is responsible for timely delivery of the Customer Data in accordance with the Order and Resonate’s instructions.
7.1.3. Restrictions. Customer shall not transmit, provide, or otherwise make available to the Platform sensitive information of any kind, which includes but is not limited to information regarding a minor under the age of 13, sensitive financial information, sensitive medical or health information, race or ethnicity, religious beliefs, sexual orientation, precise geographic location, as well as those elements described as sensitive information under State Data Privacy Laws.
7.1.4. License. Customer hereby grants to Resonate a non-exclusive license to the Customer Data during the Subscription Term 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 SaaS Services to perform its obligations under this Agreement. 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.
7.2. Resonate Data. Except for the limited licenses granted in these Terms, Resonate retains ownership in the Resonate Data.
7.3. Third Party Data. Customer’s rights to access and use Third Party Data is subject to the license rights granted by the owner of such Third Party Data, as set forth in the applicable Third Party Terms. Third-Party Data is not owned or controlled by Resonate. Resonate disclaims all warranties regarding the accuracy, appropriateness, usefulness or intellectual property rights relating to any Third Party Data. If Customer purchases a Data Activation subscription that includes Third Party Data, Customer shall report on its use of Third Party Data in accordance with Section 2.7.2 of this Agreement.
7.4. Usage Data. Resonate may collect Usage Data, which is owned by Resonate. Resonate may use and disclose, in its discretion, all such Usage Data, provided, however that Usage Data will not include Customer Data, nor will it identify Customer, its Authorized Users, or Customer’s use of the SaaS Services.
8. CHARGES, PAYMENT AND TAXES
8.1. 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. The pricing specified in an Order will be firm for the initial Subscription Term. Except as set forth in the Order, charges applicable in any renewal terms will be subject to an increase of ten percent (10%) over the previously applicable sales price. Except as specifically provided for in the Agreement, all charges are non-refundable, and all Services are non-cancellable.
8.2. Excess Utilization Fees. Certain charges are calculated based upon Customer’s utilization of the SaaS Services or the Resonate Data. Where Customer’s actual use of the SaaS Services or Resonate Data, as applicable, during the measurement period exceeds the usage quantities stated on the Order, Resonate will invoice Customer for the excess utilization at the rates set forth in the Order. Excess utilization charges will be invoiced monthly in arrears and are in addition to any recurring charges.
8.3. 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.
8.4. 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.
8.5. 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.
9. 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. Neither party will disclose any Confidential Information to any third party; provided, however, that a party may disclose Confidential Information to its Affiliates, suppliers, employees, professional advisors, agents and/or independent contractors to whom disclosure is reasonably required, so long as such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement, and Resonate may disclose Personal Information in response to a data subject request or as otherwise required by Applicable Law. Neither party will use any Confidential Information except as necessary to achieve the purposes of this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature (but not less than reasonable care), to protect the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by Applicable Law; provided, however, that a party so disclosing Confidential Information will give the other party as much advance notice as reasonably possible of any such disclosure so that such party may seek a protective order or other remedy. The disclosing party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the disclosing party will use reasonable efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed. The parties agree that monetary damages for breach of confidentiality under this Section will not be adequate and the non-breaching party shall be further entitled to seek injunctive relief.
10. COMPLIANCE; SECURITY; PRIVACY
10.1. Laws and Industry Standards. Each party will comply with all Applicable Laws in performance of its obligations and exercise of its rights under this Agreement.
10.2. 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”. Customer shall also ensure, via written agreement, that all Site Owners comply with this Section 10.2.
10.3. Security Policies.
10.3.1. 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 Services. Resonate’s security measures shall be no less rigorous than as set forth in the Resonate Security Policy.
10.3.2. Each party shall, as soon as reasonably practical after discovery and subject to any reasonable restrictions placed on the disclosing party by any law enforcement agency in the process of conducting a related investigation, report to the other party any known unauthorized disclosure of the other party’s data, including the full details of such disclosure, and take all such measures as may be necessary to prevent any further disclosure.
10.4. Data Privacy. To the extent that either party provides the other with Personal Information, each party shall comply with its obligations set forth in the Data Protection Addendum . Additionally, Resonate will not, and certifies that it will not, collect, retain, use, sell, or otherwise disclose the Personal Information of Customer for any purpose other than for the specific purpose of performing the services specified in these Terms, the Data Protection Addendum, or as otherwise required by law.
10.5. Protected Health Information. Where the Services involve Resonate’s receipt and processing of Customer Data that is covered by the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the parties shall enter into a Business Associate Agreement, or if no such agreement is executed, the parties agree to comply with the terms of the Model Business Associate Agreement (or its successor URL), which is incorporated herein by reference.
11. TERM AND TERMINATION
11.1. Term. Unless sooner terminated in accordance with the provisions of this Section 11, the Agreement commences on the Effective Date and continues until all Subscription Terms, including any renewals thereof, have been terminated or expired (the “Term”). Unless otherwise set forth on an Order, the Subscription 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 Subscription Term.11.2. Early Termination For Cause. Either party may terminate the Agreement, including all Orders, immediately upon written notice to the other party, if the other party: (a) commits a material breach of the 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. 11.3. Effect of Termination. Upon termination of the Agreement, all rights and licenses granted to Customer under the Agreement will immediately cease, neither party shall have continuing rights to the other party’s Confidential Information, and any payment obligations that have accrued but remain unpaid will become immediately due and payable. Customer shall immediately disable any Tags that Customer has deployed. Upon termination, Resonate will have no obligation to store, retain or return Customer Data and may, unless legally prohibited, delete Customer Data from its systems.
12. WARRANTIES AND DISCLAIMER AND LIMITATION OF LIABILITY
12.1. 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 the Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that the 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.
12.2. Resonate Warranties. Resonate represents and warrants that:
12.2.1. During the Subscription Term, the SaaS Services will meet the service levels set forth in the SLA. If the SaaS Services fail to achieve the service levels specified in the SLA, then Customer will be entitled, as its sole and exclusive remedy, to a service level credit in accordance with the terms set forth in the SLA, provided, that (i) Customer notifies Resonate in writing of any such service failures within fifteen (15) days of its occurrence and (ii) Customer is not delinquent on any payment obligations to Resonate.
12.2.2. Ancillary Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. Customer’s sole remedy in the event of a breach of this warranty shall be for Resonate to re-perform the Ancillary 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 Ancillary Services.
12.3. Customer Warranties. Customer represents and warrants that (i) it shall provide to Resonate the Customer Data in compliance with Applicable Laws, with proper notice and consent for the collection and use of such Customer Data, and in compliance with its own privacy policies, and it shall ensure, via written agreement, that its providers of Customer Data, including Site Owners, comply with the same; (ii) it has procured all rights and licenses, and has all power and authority necessary to provide such Customer Data to Resonate, and grant the rights granted to Resonate in the Agreement without requiring the additional consent of any third party; and (iii) it shall use the Services and Resonate Data in compliance with Applicable Laws; and (iv) it will not use the Services or any Resonate Data to (a) advertise, sell or exchange any illegal or illicit products or services, including pornography, illegal drugs or illegal weapons and/or (b) create or distribute any advertisements that include such prohibited content.
12.4. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES AND THE RESONATE DATA 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 THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY
13.1. EXCEPT FOR DATA PROTECTION CLAIMS (WHICH ARE SUBJECT TO SECTION 13.2), A BREACH OF SECTION 6 (INTELLECTUAL PROPERTY RIGHTS), EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS AND CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE, (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 SERVICES, RESONATE DATA, CUSTOMER DATA, PLATFORM OR OTHERWISE ARISING IN CONNECTION WITH THE AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO RESONATE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY (THE “AGGREGATE CAP”), 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.
13.2. DATA PROTECTION CLAIMS. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY 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 AGGREGATE CAP.
14. INDEMNIFICATION
14.1. Indemnification of Customer.
14.1.1. Resonate agrees to defend or settle any claim brought against Customer by an unaffiliated third party arising from (i) Resonate’s gross negligence or willful misconduct, or (ii) allegations that Customer’s use of the SaaS Services as authorized by these Term 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.
14.1.2. 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 SaaS Services, 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 SaaS Services with regard to which the use is discontinued.
14.1.3. 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; (ii) the combination, operation or use of any Resonate products or service or data with other software, hardware, systems, data or technologies not provided by Resonate or explicitly authorized by the Documentation; (iii) Customer’s use of Third Party Services or Third Party Data; (iv) Customer’s breach of Section 12.3 (Customer Representations and Warranties); or (v) Customer’s use of the SaaS Services other than in accordance with the Documentation.
14.1.4. THE PROVISIONS OF THIS SECTION 14.1 SET FORTH RESONATE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
14.2. Indemnification of Resonate. Customer shall defend or settle any claim brought against Resonate by a third party arising from (i) Customer’s gross negligence or willful misconduct; (ii) Customer’s breach of Sections 6 (Intellectual Property Rights) or 12.3 (Customer Representations and Warranties); or (iii) Customer’s breach of any Third Party Terms. 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.
14.3. Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this Section 14, 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.
15. 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 the Services or canceling, changing, or superseding any material term or provision of these Terms (collectively “Regulatory Requirement”), Resonate may modify the terms of these Terms as necessary to comply with such Regulatory Requirement. If a change to these Terms 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
16. MISCELLANEOUS
16.1. Independent Contractors. Resonate and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of the 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.
16.2. 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.
16.3. Waiver. No term or provision of these Terms 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.
16.4. Audit Rights. During the Term and for two (2) years thereafter, Resonate and/or an independent auditor on behalf of Resonate will have the right to audit Customer’s applicable systems, books and records, to ensure Customer’s compliance with the license rights and restrictions set forth in the Agreement as well as compliance with Applicable Laws. Each party will pay the costs that it incurs in the course of the audit. If the audit reveals an underpayment, or a failure by Customer to fully comply with all the payment terms and conditions of the Agreement, then Customer will immediately pay Resonate the underpaid amount, with interest in accordance with Section 8 of these Terms, from the date such amount is due until the date such amount is finally paid in full. In addition, if any audit reveals an underpayment of more than three (3%) percent for any reporting period, then, without limiting Resonate’s other rights and remedies at law or in equity, Customer will also reimburse Resonate for its reasonable costs incurred in conducting such audit.
16.5. Partial Invalidity. In the event that any one or more of the provisions contained in these Terms 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 these Terms, 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.
16.6. Amendment. Except as otherwise provided in the Agreement, these Terms 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.
16.7. Binding Effect. If any provision of these Terms 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.
16.8. Survival. Termination of the Agreement shall not affect either party’s accrued rights or obligations under these Terms as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after the Agreement has ended, including without limitation, Sections 6 6, 7, 8, 9, 10, 11, 11.3, 12.4, 13, 16 and 17, as well as any outstanding payment obligations.
16.9. Assignment. Except for assignment to United States headquartered affiliates, Customer may not assign or otherwise transfer the Agreement or any rights or obligations hereunder without the prior written consent of Resonate. Resonate may assign the Agreement to an affiliate or other entity without the written consent of Customer. Subject to the foregoing, the 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.
16.10. 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.
16.11. 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, to the address set forth in the applicable Order. Notices will be deemed delivered on the date shown on the confirmation of delivery. 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.
16.12. Headings. The headings and other captions in these Terms are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of these Terms.
16.13. No Third Party Beneficiaries. Except as specifically stated in the Agreement, the 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.
16.14. Governing Law. The 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 the Agreement.
16.15. Counterparts; Electronic Signature. The 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.
16.16. Entire Agreement. The Agreement, together with any attachments attached hereto or documents referenced herein, 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.
17. DEFINED WORDS AND PHRASES.
17.1. “Access Rights” are contractual rights to access and receive access to the SaaS Services according to the technical procedures and protocols established according to the Agreement. The scope of any particular Access Rights may be further defined in the Order.
17.2. “Activation Services” means creation and delivery of Audience Data.
17.3. “Affiliate” means any present or future company that, directly or indirectly, controls, is controlled by or is under common control with a party.
17.4. “Ancillary Services” means professional services that are related to Customer’s use of the Platform, which may include without limitation, implementation, data onboarding, configuration, training or business consulting services, which may be offered on a one-time or subscription basis.
17.5. “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 Services (including the Resonate Data) and its collection and provision of the Customer Data.
17.6. “Attributes Data” means Resonate Data that is delivered to Customer as part of the Data Services.
17.7. “Audience Events” means a pixel fire resulting from a Tag.
17.8. “Authorized Users” means employees or contractors who are acting on Customer’s behalf within the scope of access rights granted to Customer under the Agreement.
17.9. “Customer Data” means first party data that is collected and stored by Customer and provided to Resonate through the Platform or through Third Party Services. Customer Data also includes Insight Data.
17.10. “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.
17.11. “Data Protection Addendum” means the Resonate Data Protection Addendum, made available at https://www.resonate.com/data-processing-addendum, that applies to the processing of Personal Information by the parties.
17.12. “Data Protection Claims” means any claims arising from a party’s breach of Sections 9 (Confidentiality) 10.3 (Security Policies) or 10.4 (Data Privacy), or breach of Data Protection Laws which results in the unauthorized access to or use of any Personal Information.
17.13. “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.
17.14. “Documentation” means Resonate’s then-current user manuals and other technical materials relating to the SaaS Services that are generally made available by Resonate to its customers.
17.15. “Insight Services” means consumer sentiment tracking through CRM Insights, Site Insights or Media Insights, as further described in an Order.
17.16. “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.
17.17. “Marks” means a party’s name, trade names, trademarks or service marks.
17.18. “Order” means an order for the Services that is executed by Resonate and Customer or its Affiliates.
17.19. “Personal Information” 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 the Agreement.
17.20. “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 and furnished to Customer.
17.21. “Permitted Use” means 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. Customer is strictly prohibited from (i) incorporating or using the Services or Resonate 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.
17.22. “Resonate Data” means insights, data, reports or information contained in, generated by or derived from the Services and the Platform or delivered as part of Data Services, including Resonate insights, research data, audience data and survey data. Resonate Data includes Audience Data and Attributes Data but excludes Customer Data and Third Party Data.
17.23. “Resonate Security Policy” means the Resonate Security Policy, made available at https://www.resonate.com/security-policy.
17.24. “Services” means the services provided by Resonate to Customer, as identified in an Order, which may include SaaS Services, Data Enrichment Licenses or Ancillary Services.
17.25. “SaaS Services” means the particular online services identified in an Order, to be performed by means of Resonate’s proprietary methodologies and systems, to which Access Rights are purchased by Customer, and to which access is provided by Resonate via its Web sites. Customer acknowledges that the SaaS Services may include access to particular functional modules of Resonate’s system, but not to other modules, as may be indicated in the applicable Order. SaaS Services may include Insight Services and Activation Services.
17.26. “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.
17.27. “Subscription Term”, means the period during which Customer is entitled to receive the SaaS Services and/or the Data Enrichment License, as specified in an Order.
17.28. “Third Party Data” means any data that is made available by Resonate to Customer through the SaaS Services which are not owned by Resonate and which are identified as Third Party Data, either as set forth in the Order or within the Platform or the Documentation.
17.29. “Third Party Services” means any service that is performed by a third party, which is listed on the Order, or identified as a Third Party Service within the Platform or the Documentation.
17.30. “Third Party Terms” means the terms and conditions and privacy policies of the providers of Third Party Services or Third Party Data.
17.31. “Usage Data” means usage and operations data in connection with Customer’s use of the Services, including login information, query logs, and metadata (e.g., object definitions and properties).