Terms and Conditions of Use

General Terms and Conditions for Resonant Technology Partners, LLC. Hosted Services
Revised and Effective as of June , 2016

1.0 Definitions

1.1. “Acceptable Use Policy” means the Acceptable Use Policy for Resonant e-business Services, located on the Internet at https://www.resonanttechnologypartners.com/terms-conditions-of-use/, as of the Effective Date, and any subsequent modification in accordance with Section 12.2 below.
1.2. “Affiliates” means entities that control, are controlled by, or are under common control with a party to this Agreement.
1.3. “Base Components” means the hardware and software that Resonant makes available, if any, as specified in Order Forms and associated Service Option Attachments.
1.4. “Content” means information, software, and data that Client provides, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that Client or its Subcontractors or Services Recipients create, install, upload or transfer in or through the e-business Hosting Environment and/or Client Components.
1.5. “Content Administrator” means an employee or Subcontractor of Client who is authorized by Client to install, upload and/or maintain Content using a User Identification.
1.6. “Client Components” means the hardware, software and other products, data and Content that Client provides, including those specified in Service Option Attachments.
1.7. “e-business Hosting Environment” means the Base Components and the Resonant provided Internet access bandwidth, collectively.
1.8. “Resonant e-business Hosting Center” means a facility used by Resonant to provide Services.
1.9. “Internet” means the public worldwide network of TCP/IP-based networks.
1.10. “Materials” means literary or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) created during the Service performance period or otherwise (such as those that preexist the Service) that Resonant may deliver to Client. “Materials” does not include licensed program products available under their own license agreements or Base Components.
1.11. “Required Consents” means any consents or approvals required to give Resonant and its Subcontractors the right or license to access, use and/or modify in electronic form and in other forms, including derivative works, the Client Components, without infringing the ownership or intellectual property rights of the providers, licensors, or owners of such Client Components.
1.12. “Service Option Ready Date” means the date that Resonant has notified Client that Resonant has completed the implementation activities specified in an applicable Service Option Attachment.
1.13. “Services Recipients” means any entities or individuals receiving or using the Services, or the results or products of the Services.
1.14. “Service Option Attachment Start Date” means the day after the date of the last signature on an Order Form authorizing the Services under an applicable Service Option Attachment.
1.15. “Subcontractor” means a contractor, vendor, agent, or consultant selected and retained by Resonant or Client, respectively.
1.16. “TCP/IP” means Transmission Control Protocol/Internet Protocol.
1.17. “User Identification” or “ID” means a string of characters that uniquely identifies a Content Administrator.

2.0 Resonant Services Responsibilities

Resonant will perform the Services described in Manage360º Performance Work Statement provided by Resonant Technology Partners, LLC.

3.0 3.0 Term and Termination

3.1. Term
This Agreement will be effective beginning on 12:01 a.m., Central Time, on the day after the date of last signature to these Base Terms (“Effective Date”) and ending on the expiration and/or termination of all Service Option Attachments, unless the Agreement is terminated earlier in accordance with the terms herein. The term of each Service Option Attachment is as specified on the applicable Order Form.
3.2. Renewal
Upon the expiration of the then-current term, each Service Option Attachment will renew automatically for an additional one year term unless either party notifies the other party that it has elected to terminate such Service Option Attachment. Such notification must be in writing at least thirty (30) days prior to the end of the then-current term for the applicable Service Option Attachment.
3.3. Termination for Cause
Client or Resonant may terminate this Agreement for material breach of this Agreement by the other upon written notice containing the specific nature and dates of the material breach. The breaching party will have thirty (30) days from receipt of notice to cure such breach, except for nonpayment by Client, which must be cured within five (5) days from receipt of notice. If such breach has not been timely cured, then the non-breaching party may immediately terminate this Agreement upon written notice.
3.4. Termination for Convenience
Client may terminate this Agreement (including all Service Option Attachments) or any Service Option Attachment (with the exception of any Service Option Attachment that is a prerequisite for the provision of Services under a non-terminated Service Option Attachment) for convenience by:
3.4.1. providing at least one month’s prior written notice to Resonant; and
3.4.2. paying as an early termination charge for each Service Option Attachment to be terminated, the amount specified in such Service Option Attachment or, if no amount is specified, an amount equal to one (1) months’ charges of the applicable monthly recurring charge of such Service Option Attachment. Such termination charges only apply upon early termination of an initial term of any Service Option Attachment and do not apply to any renewal term.
3.5. Effect of Termination
Upon the date of termination, all Client payment obligations accrued hereunder through the date of termination will become due and payable. The termination of selected Service Option Attachments will not affect Client’s obligation to pay charges under other Service Option Attachments.

4.0 Charges and Payment

4.1. Charges
Charges for applicable Services will be specified in Service Option Attachments and Order Forms. Charges can be specified as one-time, installment, recurring, or usage. Resonant will invoice such Charges when they begin or are due as set forth in Service Option Attachments.
4.2. Payment
Resonant invoices will specify the amount due. Payment is due and payable by month end for any invoice received by the 10th of the month, otherwise payment is due 30 days from receipt of invoice. Client agrees to pay accordingly, including any late payment fees. Payment will be made in United States dollars.
4.3. Taxes
Client will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon Resonant’s net income) related to the Services imposed by any governmental authorities. Charges specified herein (including in an Order Form) are exclusive of any such taxes, duties, levies or fees.

5.0 Warranties and Disclaimers

5.1. Resonant Representations and Warranties
Resonant represents and warrants that:
5.1.1. it will perform the Services using reasonable care and skill and in accordance with the applicable Service Option Attachments; and
5.1.2. it has the requisite company power and authority to execute, deliver and perform its obligations under this Agreement.
5.2. Exclusivity of Warranties
THE WARRANTIES IN SECTION 5.1 ARE THE EXCLUSIVE WARRANTIES FROM Resonant. THEY REPLACE ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
5.3. Security
5.3.1. Client acknowledges that Resonant offers numerous security options, specified in Service Option Attachments. It is the Client’s responsibility to select on an Order Form the set of security options that it determines meet Client’s needs. Resonant will implement such selected security options as specified in the applicable Service Option Attachment.
5.3.2. Client acknowledges that Resonant does not control the transfer of data over telecommunications facilities, including the Internet. Resonant does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the e-business Hosting Environment or Client Components.
5.3.3. Client agrees that Resonant shall have no liability for any provision of security-related services or advice that Resonant may voluntarily provide outside the scope of selected Service Option Attachments.
5.4. Other Disclaimers
5.4.1. aResonant does not warrant uninterrupted or error-free operation of any Service or that Resonant will correct all defects.
5.4.2. Resonant does not make any representation or warranty with respect to Client’s responsibilities set forth in Section 10.5.
5.4.3. Resonant provides Materials, non-Resonant products, and non-Resonant services WITHOUT WARRANTIES OF ANY KIND. However, non-Resonant manufacturers, suppliers, or publishers may provide their own warranties to you.

6.0 Confidentiality

All information exchanged between the parties is non-confidential. If either or both parties require the exchange of confidential information, such information will be exchanged under the terms and conditions of a separate written confidentiality agreement. With respect to any confidential information contained in or traveling through the e-business Hosting Environment or Client Components, as is contemplated herein, the provisions of Sections 5.0, 8.0, and 9.0 herein will prevail to the extent of any inconsistent provisions in the confidentiality agreement.

7.0 Indemnification

7.1. Indemnification by Resonant
If a third party claims that Materials or Base Components Resonant provides to Client infringe that party’s patent or copyright, Resonant will defend the Client and its employees, officers, and directors against that claim at Resonant’s expense and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which Resonant agrees in any final settlement), provided that Client:
7.1.1. apromptly notifies Resonant in writing of the claim; and
7.1.2. allows Resonant to control, and cooperates with Resonant in, the defense and any related settlement negotiations. If such a claim is made or appears likely to be made, Client agrees to permit Resonant to enable Client to continue to use the Materials or Base Components, or to modify them, or replace them with non-infringing Materials or Base Components that are at least functionally equivalent. If Resonant determines that none of these alternatives is reasonably available, Client agrees to return the Materials or Base Components (if in Client’s possession) to Resonant on Resonant’s written request. Resonant will give Client a credit equal to the amount Client paid Resonant for the applicable Materials or for use of the applicable Base Components up to a maximum of three (3) months of applicable charges. This is Resonant’s entire obligation to Client with regard to any claim of infringement. Notwithstanding the foregoing, Resonant is not responsible for third party claims based on:
7.1.2.1. anything Client provides which is incorporated into the Materials;
7.1.2.2. Client’s modification of the Materials;
7.1.2.3. the combination, operation, or use of the Materials with any product, data, or apparatus that Resonant did not provide; or
7.1.2.4. non-Resonant hardware, software, or data, including those that may be in the Base Components.
7.2. Indemnification by Client
7.2.1. Client will defend Resonant and its Affiliates and their employees, officers, and directors, at Client’s expense, and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which Client agrees in any final settlement) for any third party claim:
7.2.1.1. that Content or Client’s use of the Services violates Client’s obligation in Section 10.2.2.;
7.2.1.2. that Client Components infringe that party’s patent or copyright;
7.2.1.3. that is brought by a Services Recipient and is related, directly or indirectly, to the Services; or;
7.2.1.4. arising out of or related to a mechanics’ lien Client is required to cancel and discharge pursuant to this Agreement.
7.2.2. For indemnification under this Section 7.2, Resonant will:
7.2.2.1. promptly notify Client in writing of the claim; and
7.2.2.2. allow Client to control, and will cooperate with Client in, the defense and any related settlement negotiations.

8.0 Limitation of Resonant’s Liability

Circumstances may arise where, because of a default on Resonant’s part or other liability, Client is entitled to recover damages from Resonant. Regardless of the basis on which Client is entitled to claim damages from Resonant (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Resonant is liable for no more than:
8.1. Indemnification payments as provided in Section 7.1;
8.2. Damages for bodily injury (including death) and damage to real property and tangible personal property; and
8.3. The amount of any other actual direct damages, up to the greater of $10,000 or the charges paid by Client to Resonant for the Services in the three (3) months immediately preceding the accrual of the first claim related to the Services. The foregoing limit also applies to any of Resonant’s Affiliates and Subcontractors. It is the cumulative maximum for which Resonant and its Affiliates and Subcontractors are collectively responsible. Under no circumstances is Resonant, its Affiliates or its Subcontractors liable for any of the following:
8.3.1. Third party claims against Client for damages (other than those expressly provided in Subsections 8.0.1. and 8.0.2.; or
8.3.2. loss of, or damage to, Client’s or any other entity’s records or data.

9.0 Disclaimer of Consequential Damages

In no event will either party be liable to the other for special, incidental, or indirect damages or for any consequential damages (including lost profits or savings), even if they are informed of the possibility; provided that this Section 9.0 does not apply to Client’s failure to pay any amounts owing to Resonant under this Agreement (including amounts owing for Services that would have been rendered but for Client’s breach of this Agreement).

10.0 Other Client Obligations

10.1. Services Support
Client will comply with its responsibilities to support the Services as specified in applicable Attachments. Such obligations are to be performed at no charge to Resonant. Resonant’s obligations are contingent on Client meeting such support obligations.
10.2. Representations and Warranties
Client represents and warrants that:
10.2.1. it has the requisite power and authority to execute, deliver and perform its obligations under this Agreement; Client has no contractual or other obligation that (i) restricts or prohibits Client’s execution or performance of this Agreement, or (ii) Client will breach in connection with the execution or performance of this Agreement; and
10.2.2. its use of the Services and all Content will comply with the Acceptable Use Policy.
10.3. Suspected Violations
Resonant reserves the right to investigate potential violations of the representations and warranties in Subsection 10.2.2. If Resonant reasonably determines that a breach of any such warranty has occurred, then Resonant may, in its sole discretion:
10.3.1. restrict Client’s access to the Services;
10.3.2. remove or require removal of any offending Content;
10.3.3. terminate this Agreement for cause; and/or
10.3.4. exercise other rights and remedies, at law or in equity.
Except in an emergency or as may otherwise be required by law, before undertaking the activities in Subsection 10.3.1. or 10.3.2., Resonant will attempt to notify Client by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail.
Client will promptly notify Resonant of any event or circumstance related to this Agreement, Client’s use of the Services, or Content of which Client becomes aware that could lead to a claim or demand against Resonant, and Client will provide all relevant information relating to such event or circumstance to Resonant at Resonant’s request.
10.4. Required Consents
Client will promptly obtain and upon request provide to Resonant evidence that it has obtained such Required Consents. Resonant will be relieved of its obligations to the extent that they are affected by Client’s failure to obtain and provide promptly to Resonant any Required Consents.
10.5. Capacity Planning
Client acknowledges it is its responsibility to determine whether the Services, e-business Hosting Environment, Client Components and their combination will meet Client’s capacity, performance, or scalability needs. Client is responsible for planning for and requesting changes to the e-business Hosting Environment, including any additional capacity required to support anticipated peaks in demand that may significantly increase Web site hits, transaction volumes, or otherwise increase system resource utilization.
10.6. Content and Digital Certificates
Client is solely responsible for:
10.6.1. all Content including, without limitation, its selection, licensing, accuracy, performance, maintenance, and support; and
10.6.2. the selection, management and use of any public and private keys and digital certificates it may use with the Services.

11.0 Other License and Rights

11.1. License for Base Components
Resonant grants Client a nonexclusive, revocable license to use the Base Components solely in connection with the Services as provided under this Agreement. Client agrees not to download or otherwise copy, reverse assemble, reverse compile, or otherwise translate the software portions of the Base Components, other than to make one copy for backup purposes.
11.2. No Sale or Lease of Goods
As between Client and Resonant, Resonant retains all right, title and interest in the Base Components. No goods are sold or leased by Resonant under this Agreement. If Client desires to purchase or to lease goods from Resonant, such purchase or lease will be governed by a separate mutually acceptable written agreement between Client and Resonant or a Resonant Affiliate.
11.3. No Lease of Real Property
This Agreement is a services agreement and not a lease of any real property.

12.0 Changes

12.1. Services
Resonant, in its reasonable discretion, may change the prices, terms and conditions of applicable Attachments, upon at least ninety (90) days prior notice to Client. Such changes are not retroactive and will apply on the effective date of a new order or renewal unless such change was the result of:
12.1.1. law, regulation, or similar governmental action;
12.1.2. a ruling by a court of competent jurisdiction; or
12.1.3. changes in the method of service delivery that affect similar Resonant e-business hosting Clients.
Changes as a result of 12.1.1., 12.1.2., or 12.1.3 above will be effective on the date Resonant specified in the notice. Any changes in price will apply on the effective date of a new order or renewal.
12.2. Acceptable Use Policy
Resonant, in its reasonable discretion, may modify the Acceptable Use Policy upon thirty (30) days’ notice to Client. Except when such modification is required by law, regulation, or similar governmental action, or a ruling by a court of competent jurisdiction, Client may terminate this Agreement (or the affected Service Option Attachments) without the payment of termination charges if such modification has a material adverse effect on the Client’s use of the Services and Client gives Resonant notice within ninety (90) days of the effective date of the modification.
12.3. Amendments
Except for changes pursuant to Sections 12.1 and 12.2, this Agreement may be amended only by a writing signed by authorized representatives of both parties.

13.0 General

13.1. Headings
The headings of the various sections of this Agreement have been inserted for convenience only and shall not affect the interpretation of this Agreement.
13.2. Survival
Any of these terms and conditions which by their nature extend beyond the Agreement termination or expiration remain in effect until fulfilled, including, without limitation, Sections 3.5, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 10.2, 10.3, 10.6, 11.2, 11.3, and 13.0, and apply to both Client’s and Resonant’s respective successors and assignees.
13.3. Choice of Law
This Agreement will be governed by the substantive laws of the State of Texas, without regard for its conflict of laws provisions.
13.4. Waiver of Jury Trial
The parties waive any right to a jury trial in any proceeding arising out of or related to this Agreement.
13.5. Severability
If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired thereby, so long as the remaining provisions of this Agreement still express the original intent of the parties. If the original intent of the parties cannot be preserved, this Agreement shall either be renegotiated or terminated.
13.6. Publicity and Trademarks
Neither party grants the other the right to use its or any of its Affiliates’ trademarks, trade names, or other designations in any promotion, publication, or Web site without prior written consent. Except as may be required by law or as may be required by Resonant to perform the Services, neither party may disclose to any third party the terms and conditions of this Agreement, without prior written consent.
13.7. No Third-Party Beneficiaries
Except as expressly provided in Section 7.0, this Agreement does not create any intended third party beneficiary rights.
13.8. Personnel
Each party is responsible for the supervision, direction, and control of its respective personnel. Resonant reserves the right to determine the assignment of its personnel. Resonant may subcontract portions of the Services to Subcontractors and Affiliates selected by Resonant.
13.9. No Agency
This Agreement does not create an agency, joint venture, or partnership between the parties.
13.10. Assignment
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Any attempt to do so is void. Neither party will unreasonably withhold such consent. The assignment of this Agreement, in whole or in part, to any Affiliates in the United States or to a successor organization by merger or acquisition does not require the consent of the other. Resonant is also permitted to assign its rights to payments under this Agreement without obtaining Client’s consent. It is not considered an assignment for Resonant to divest a portion of its business in a manner that similarly affects all of its Clients.
13.11. No Resale
Client shall not resell the Services, in whole or in part. This does not prevent Client from making their Content available to Client’s end users.
13.12. Risk of Loss
Risk of loss for all Base Components shall at all times remain with Resonant. Risk of loss for all Client Components shall at all times remain with Client.
13.13. Force Majeure
Except for payment obligations hereunder, neither party is responsible to fulfill its obligations to the extent due to causes beyond its control.
13.14. Actions Period
Neither party will bring a legal action related to this Agreement more than two (2) years after the cause of action accrued.
13.15. Waiver
The failure of one party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver, nor shall it deprive that party of the right to insist later on adherence thereto. Any waiver must be in writing and signed by an authorized representative of the waiving party.
13.16. Freedom of Action
Each party is free to enter into similar agreements with others.
13.17. Limitation of Licenses
Each of us grants only the licenses or rights expressly specified herein. No other licenses or rights (including licenses or rights under patents) are granted, either directly, by implication, estoppel, or otherwise.
13.18. Data Protection
Client agrees to allow Resonant and its Affiliates to store and use Client’s contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners (certain organizations who have signed agreements with Resonant to promote, market, and support certain products and services), and assignees of Resonant and Affiliates for uses consistent with their collective business activities, including communicating with Client (for example, for processing orders, for promotions, and for marketing research). For personal information processed by Resonant on Client’s behalf as part of the Services, Resonant will act in accordance with Client’s instructions by following such processing and security obligations as are contained in this Agreement. Client also confirms that Client is solely responsible for ensuring that any processing and security obligations comply with applicable data protection laws. Client’s contact information shall not be considered personal information processed on Client’s behalf.
13.19. Geographic Scope
Although it is possible that Services Recipients outside of the United States of America may access Client’s Web site, Resonant’s delivery of the Services will only occur within the United States of America, and Resonant’s obligations hereunder are valid only in the United States of America.
13.20. Notices
Any notices required or permitted hereunder will be effective upon receipt and will be personally delivered; mailed via the postal service; sent by reliable overnight courier; or transmitted by confirmed facsimile. Except for notices under Section 10.3, all notices will be in writing and addressed to the applicable party’s designated representative at the address specified in this Agreement. Except as to notices permitted or required under Sections 3.0 or 7.0, the parties agree that electronic mail messages sent between them using security procedures sufficient to reasonably authenticate them will be deemed writings. In addition, Resonant may provide notice under Section 12.2 by a posting to the Web site identified in Section 1.1.