CAREFULLY READ THESE RESONATE TERMS OF SERVICE. BY EXECUTING OR ACKNOWLEDGING RECEIPT OF THESE TERMS OF SERVICE, CLICKING “ACCEPT” OR “AGREE” (OR SIMILAR LANGUAGE) TO THE TERMS OF SERVICE WHEN MADE AVAILABLE TO YOU, OR ACCESSING AND USING THE RESONATE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON BEHALF OF YOURSELF, YOUR COMPANY OR OTHER ORGANIZATION RECEIVING THE RESONATE SERVICES, AS APPLICABLE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCEPT, AGREE TO, ACCESS, OR OTHERWISE USE THE RESONATE SERVICES.  

These Terms of Service govern your access to and use of www.resonaterecordings.com, the Resonate mobile application, and your use of the Resonate Services. These Terms of Service are by and between Resonate Recordings LLC (“Resonate“), and you, your organization or other legal entity (“you” or “your”) on whose behalf you are entering these Terms of Service. Capitalized terms not otherwise defined shall have the meanings ascribed to them in Section 16.     

1. Software-as-a-Service (SaaS) Services

1.1 Right to Access and Use of SaaS Services.  Resonate hereby grants to you and your Authorized Users, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the SaaS Services for your internal business, subject to the terms of your Order and these Terms of Service. All rights not expressly granted to you are reserved by Resonate.  

1.2. Usage Restrictions. In addition to any other limitations set forth in these Terms of Service and any Order, you agree not to (i) copy, download, modify or translate any software and/or database hosted as part of the SaaS Services in any manner not authorized by these Terms of Service; (ii) reverse engineer, decompile, or disassemble any software and/or database hosted as part of the SaaS Services, or otherwise attempt to discover the underlying source code of the SaaS Services; (iii) tamper with, bypass or alter the security features of the SaaS Services or any of the hosted infrastructure, and/or (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the SaaS Services or any features or functionality of the SaaS Services to any person or entity other than your Authorized Users, or use the SaaS Services to run an outsourcing business. 

1.3 Your Obligations. Only Authorized Users may use the SaaS Services, and solely for your internal business purposes. All use of the Services by your Authorized Users must comply with these Terms of Service. Your Authorized Users will be granted access to the Services through individual usernames and passwords. You will ensure that each Authorized User uses a unique username and password and that such usernames and passwords are not shared. You shall promptly notify Resonate if any Authorized User’s username or password has been or is suspected of being lost, stolen, or compromised. You shall implement appropriate security measures to safeguard your Access Credentials and you are solely responsible for any and all activity that occurs in connection with your Access Credentials. You must maintain all hardware, software and network connectivity needed to connect to the Services.  

2. Professional Services. 

2.1 Orders for Professional Services. Subject to these Terms of Service, Resonate will perform the Professional Services and provide the related Deliverables (if any) as specified and described in one or more separate Orders. As needed, each Order will also set forth applicable terms such as project scope, delivery schedule, subscription term (if applicable), acceptance criteria, specifications, pricing, tasks to be performed by the parties and the roles and responsibilities of the parties.

2.2 Resonate responsibilities. Resonate agrees to that it shall perform the Professional Services (i) in accordance with the terms and subject to the conditions set out in the respective Order and these Terms of Service; (ii) using personnel of commercially reasonable skill, experience, and qualifications; and (iii) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

2.3 Your Responsibilities. You agree to (i) designate one of your employees to act as its authorized representative with respect to matters described in the Order (the “Customer Representative“), with such designation to remain in force unless and until a successor Customer Representative is appointed; (ii) require that the Customer Representative respond promptly to any reasonable requests from Resonate for instructions, information, or approvals required by Resonate to provide the Professional Services; (iii) cooperate with Resonate in its performance of the Professional Services and provide access to your employees and contractors as required to enable Resonate to provide the Professional Services; and (iv) take all steps necessary, including obtaining any required licenses or consents, to prevent customer-caused delays in Resonate’s provision of the Professional Services. Your interest in, and obligations with respect to, any software, programming, materials or data obtained by you from third-party vendors, regardless of whether or not obtained with the assistance of Resonate, will be determined in accordance with the agreements and policies of such vendors; and you assume all liability and other responsibility for compliance with those requirements.

2.4 Expenses. Unless otherwise agreed, in addition to any and all fees in the applicable Order, you shall reimburse Resonate for all reasonable costs and expenses related to the provision of the Professional Services, including without limitation travel, lodging, meal and out-of-pocket expenses, and third party online and offline services directly related to the provision of the Professional Services (“Expenses”) incurred by Resonate in connection with the performance of the Professional Services. Unless otherwise agreed in an Order, expenses shall be invoiced by Resonate as stated in the applicable Order and paid by you in accordance with these Standard Terms. Resonate shall be entitled to reimbursement for all pre-approved Expenses.

2.5 Changes. Any changes or additions to the Professional Services, including scope, Fees and/or Expenses will only be valid if agreed in writing and executed by both Parties.

2.6 Acceptance Criteria. Upon completion of each Deliverable or the conclusion of a milestone, Resonate will: (i) submit a complete copy of the Deliverable to Customer; and (ii) demonstrate and test its functionality in accordance with the applicable Order. If agreed in the applicable Order, the Deliverables may be subject to acceptance tests to be defined to verify that they satisfy the agreed specifications set forth in the applicable Order as mutually agreed upon by the Parties for such Deliverable. Upon delivery of a Deliverable, in the absence of any notice from Customer within the time agreed in the applicable Order, the Deliverable shall be deemed accepted.  

3. Ancillary Services.

3.1     Free Services. Resonate may make Services available to you specifying that the Services are provided free of charge, on a trial basis, and/or to be used at your own risk (“Free Services”). Notwithstanding any other provision of these Terms of Service, you acknowledge and agree that: (i) Free Services are made available without any support, maintenance, warranty, commitment to availability, security, or accuracy, or other related obligation of any kind under these Terms of Service, unless otherwise required by applicable law; (ii) Free Services may not include or allow access to all features and functionality available to paying customers; (iii) Resonate may terminate the use of a Free Services at any time, unless otherwise specified in writing, and Resonate will not be liable for such termination; and (iv) data, information, and content submitted to the Free Services, including but not limited to Your Content, may be permanently lost, and Resonate will not be liable for such loss. 

3.2    Artificial Intelligence Tools. The Services may include certain artificial intelligence tools (collectively referred to as “AI Services”). You and your Authorized Users are responsible for all decisions made, advice given, actions taken, and failures to take action based on the use of AI Services. AI Services use machine learning models that generate predictions based on patterns in data. Output generated by a machine learning model is probabilistic and should be evaluated for accuracy as appropriate for your use case, including by employing human review of such output. Unless otherwise expressly agreed in an Order, you agree that we may use and store Your Content processed by an AI Service to maintain and provide the applicable AI Service.  

3.3    Additional Terms.  Additional terms and conditions (the “Additional Terms”) may apply to specific products, services or features made available by Resonate on or through the Resonate Services. The Additional Terms (as applicable) are hereby incorporated by this reference into these Terms of Service. In the event of a conflict between any Additional Terms and these Terms of Service, the Additional Terms shall prevail. 

4. Fees; Payment; Renewals.  

4.1 Fees and Payment.  To the extent the Resonate Services or any portion thereof is made available for any fee, you will be required to select a payment plan in your Order and provide Resonate information regarding your credit card or other payment instrument. You represent and warrant to Resonate that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Resonate the amount that is specified in the payment plan (as well as any applicable taxes) in accordance with the terms of such plan and these Terms of Service. You hereby authorize Resonate to bill your payment instrument in accordance with the terms of the applicable payment plan (as well as any applicable taxes) until you deactivate your subscription, and you further agree to pay any charges so incurred. If you dispute any charges, you must provide written notice to Resonate within fourteen (14) days after the date that Resonate charges you. 

4.2 Price Changes. Resonate reserves the right to change the price of your subscription-based Resonate Services at any time upon thirty (30) days’ notice to you. If you disagree with the change in price for the subscription-based Resonate Services, then you may terminate such subscription-based Resonate Services via your account settings at any time prior to the change in price becoming effective. Your continued use of the Resonate Services after the price change becomes effective constitutes your agreement to pay the changed amount. If your subscription is annual, the price change will become effective upon renewal. 

4.3 Recurring Subscriptions. All subscription-based Resonate Services automatically renew according to the subscription plan (e.g., monthly or annually). You authorize Resonate to maintain your account information and charge that account automatically upon the renewal of the Resonate Services you choose with no further action required by you. In the event that Resonate is unable to charge your account as authorized by you when you enrolled in the Resonate Services, Resonate, may, in its sole discretion: (i) bill you for the Resonate Services and suspend your access to the Resonate Services until payment is received, and/or (ii) seek to update your account information through third party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you.  

4.4 Refunds/ Expiration of Unused Credits. 

4.4.1 Software-as-a-Service (SaaS) Services. Except as otherwise expressly provided in an Order, SaaS Services are nonrefundable. You may cancel the SaaS Services at any time, but if you cancel your SaaS Services before the end of your Term, Resonate will not refund any fees already paid to Resonate for the cancelled SaaS Services. Following any cancellation, however, you will continue to have access to the SaaS Services through the end of the applicable subscription Term listed in your Order. 

4.4.2 Subscription-Based Professional Services. Refunds for Professional Services may only be requested for unused Professional Services and must be requested in writing within thirty (30) days of the date of your signed Order. If Resonate incurs a surcharge for refunded fees by its third-party payment processor, Resonate reserves the right to pass-through such surcharge to you and deduct it from your refund Unless otherwise expressly agreed in an Order, after such thirty (30) day period, Resonate will not refund any fees already paid to Resonate for the cancelled subscription-based Professional Services. For the avoidance of doubt, all unused credits for subscription-based Professional Services expire at the end of your subscription Term regardless of the reason for the termination. 

4.4.3 Standard Professional Services (No Subscription). Refunds for Professional Services may only be requested for unused Professional Services and must be requested in writing within thirty (30) days of the date of your signed Order. If Resonate incurs a surcharge for refunded fees by its third-party payment processor, Resonate reserves the right to pass-through such surcharge to you and deduct it from your refund. Unless otherwise expressly agreed in an Order, after such thirty (30) day period, Resonate will not refund any fees already paid to Resonate for the Professional Services. All credits for Professional Services must be used within the time period stated in your Order. For the avoidance of doubt, all unused credits for Professional Services expire at the end of your Term regardless of the reason for the termination. 

4.5 Invoices.  Resonate will charge you fees for the Resonate Services in advance of providing the Resonate Services, as set forth in the applicable Order. Unless otherwise provided in an Order, payment is due within thirty (30) days of receipt of the applicable invoice. Resonate may suspend the Resonate Services or terminate these Terms of Service for non-payment by you as set forth in Section 5.2. You will pay a late fee equal to one-and-one-half percent (1.5%) per month or the maximum amount allowed by law, if less, on all past due amounts. You are also liable for all costs of collection incurred by Resonate for past due sums, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs.

4.6 Taxes and Other Charges. All amounts payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You shall be responsible for and shall pay all such taxes and indemnify Resonate from any liability thereon. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Resonate with legally sufficient tax exemption certificates for each taxing jurisdiction. If any deduction or withholding is required by law, you will notify Resonate and will pay Resonate any additional amounts necessary to ensure that the net amount of payment that Resonate receives, after any deduction and withholding, equals the amount of payment Resonate would have received if no deduction or withholding had been required. In no event shall you be responsible for any state or federal income tax incurred by Resonate, due to relationship with you.

5. Term & Termination; Suspension.  

5.1 Term.  You may terminate these Terms of Service at any time by providing at least thirty (30) days’ prior written notice of termination to Resonate. Unless earlier terminated pursuant to Section 4.2, 4.3 or this Section 5, each Order will remain in effect for the duration of the term specified in the applicable Order for the Resonate Services, including any renewals. 

5.2 Termination or Suspension by Resonate. Resonate may, at its option, terminate these Terms of Service for cause or suspend the Resonate Services if: (i) Resonate reasonably believes that the Resonate Services are being used in violation of law or the terms of these Terms of Service; (ii) your use of the Resonate Services interferes with the normal operations of the Resonate Services or other customer’s use of the same; (iii) there is an attack on the Resonate Services or your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which Resonate reasonably believes suspension of the Resonate Services is necessary to protect the Resonate network or Resonate’s other customers; (iv) your payment of any invoiced amount is overdue and you fail to pay the overdue amount within ten (10) days of Resonate’s written notice; (v) you breach any obligation relating to Resonate’s (or its suppliers’) intellectual property rights; or (vi) you materially fail to comply with any other provision of these Terms of Service and do not remedy that failure within fifteen (15) days of Resonate’s notice to you describing the failure in reasonable detail. Resonate will endeavor to give you advance notice of pending suspension or termination, unless Resonate determines, in Resonate’s reasonable commercial judgment, that a suspension on no or shorter notice is necessary to protect Resonate, its customers, or others. 

5.3 Effect of Termination. Termination of these Terms of Service will not relieve a party from any accrued payment obligations. Resonate will not be liable to you for any claims or damages of any kind arising out of termination of these Terms of Service or suspension of Resonate Services in accordance with this Section 6. This Section 5.3, as well as Sections 4.1, 6, 8, 9, 10, 11, and the applicable portions of Section 15 and 16 shall survive termination of this Agreement.

6. Confidentiality. Each party, as a recipient (“Recipient”), agrees to use the disclosing party’s (“Discloser”) Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Terms of Service. Recipient will not disclose Discloser’s Confidential Information to any third party other than its Authorized Recipients. Recipient shall use commercially reasonable standards to protect the Confidential Information from disclosure using equal measures as it uses to protect its own Confidential Information of a similar nature. The obligations set forth in this Section 6 shall survive until three (3) years from the termination or expiration of these Terms of Service except with regard to trade secret information which shall be protected for the statutory period. Except as otherwise set forth in these Terms of Service each party shall use commercially reasonable efforts to return to destroy all Confidential Information in accordance with Section 6 upon termination. Notwithstanding, Recipient will not be obligated to render unrecoverable Confidential Information of the Discloser that is contained in an archived computer system backup made in accordance with the Recipient’s legal and financial compliance obligations or security and disaster recovery procedure. Any such retained Confidential Information will remain subject to this Section 6 (Confidentiality).

7. Your Obligations; Content Restrictions. 

7.1 Your Obligations. In addition to any other limitations set forth in these Terms of Service and any Order, you agree not to (i) use the Resonate Services in violation of any law, regulation, or rule including for any illegal, obscene or threatening purpose; or (ii) use the Resonate Services or its contents for purposes of competitive analysis, the development of a competing product or service, or any purpose that is detrimental to Resonate or to its commercial disadvantage. You agree to promptly notify Resonate if you become aware of, or suspect any unauthorized, access, use or misuse of the Resonate Services.  

7.2 Your Content. These Terms of Service govern Resonate’s collection and usage of Your Content. By submitting or transmitting Your Content to the Services, you represent and warrant that you are the owner of and have all necessary right and permissions in the Your Content to permit Resonate to use the same in accordance with these Terms of Service without violating the rights of any third party. 

7.3 Content Restrictions. Subject to the terms of these Terms of Service, and the specifications and limitations set forth in the applicable Order, you agree not to use or permit use of the Resonate Services to display, store, process or transmit any of Your Content, that may: (i) constitute an infringement of intellectual property or other proprietary rights, (ii) violate privacy rights, or any other applicable laws, ordinances or regulations; (iii) menace or harass any person or cause damage or injury to any person or property; or (iv) involve the publication of any material that is false, defamatory, harassing or obscene. If Resonate receives information that you are in violation of any of the foregoing restrictions, Resonate reserves the right, but has no obligation, to take remedial action, including the removal or disablement of access to the Resonate Services. Resonate shall have no liability to you in the event that Resonate takes such action. 

8. Intellectual Property Rights.  

8.1 Software-as-a-Service (“SaaS”) Services. The SaaS Services are owned by Resonate (and its licensors) and are protected by applicable intellectual property laws and regulations, including United States and international copyright laws. Nothing herein shall operate to transfer or convey to you any rights in any SaaS Services. As between the parties hereto, Resonate retains all right, title and interest in and to the SaaS Services and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the SaaS Services. 

8.2 Professional Services. 

8.2.1 Unless otherwise provided in an applicable Order, each Deliverable is a specially commissioned work which shall be deemed and considered a “work made for hire” for purposes of the copyright laws of the United States. Subject to paragraph 7(c) below and contingent upon full and final payment of all amounts due hereunder, the copyright to all Deliverables and all right, title and interest in and to the Deliverables shall vest in you as sole author thereof. To the extent that (i) any of the Deliverables may not by operation of law be deemed works made for hire, or (ii) ownership rights with respect to any Deliverable may not vest in you as contemplated hereunder, then, in each such case, subject to paragraph 7(c) below and contingent upon full and final payment of all amounts due hereunder, this Agreement will automatically operate as a grant and agreement by Resonate to grant, transfer, sell and assign to you all right, title and interest therein and Resonate agrees to assign any and all copyright in such works to you upon final payment of any Deliverable hereunder or the related Resonate Services. At your request and expense, Resonate agrees to provide you all reasonable assistance and to execute all documents as may be reasonably requested by you to perfect, preserve, register and/or record your rights in any such Deliverable. 

8.2.2 You acknowledge that Resonate has created, acquired or otherwise has significant and valuable rights in certain pre-existing intellectual property and Deliverables, including “Resonate Development Tools,” “Resonate Methods” and “Resonate Foundational Applications” (as such terms are defined in Section 16) (collectively, “Resonate IP”). You acknowledge that in providing Resonate Services under this Agreement, Resonate may utilize and/or incorporate Resonate IP. You agree that all Resonate IP is proprietary to Resonate and will remain Resonate’s sole property (including any and all additions, enhancements, improvements or other modifications thereto, whether or not made during the performance of the Resonate Services). Contingent upon full and final payment of all amounts due hereunder, Resonate grants you a restricted, royalty-free, non-exclusive, non-transferable and perpetual license to use the Resonate IP for your use in any Software delivered to you by Resonate hereunder (including any derivative thereof), and not on a standalone basis.

8.2.3 Except for the licenses expressly granted herein, all right, title and interest in and to all Resonate IP is retained by Resonate.  No other licenses, sublicenses or rights with respect to Resonate IP are granted, either directly or indirectly, by implication, estoppel or otherwise.

8.3 Content License. You retain all ownership rights in Your Content that you upload or otherwise transmit to the Services. Resonate acknowledges that, as between Resonate and you, you own all right, title, and interest, including all intellectual property rights, in and to Your Content. You hereby grant to Resonate a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Your Content and perform all acts with respect to Your Content as may be necessary for Resonate to provide the Resonate Services to you. Resonate shall implement and maintain appropriate technical, physical, and organizational controls to secure the Services and to protect the security, confidentiality, and integrity of Your Content.  

8.4 Trademarks. All trademarks on or related to the Resonate Services are the sole and exclusive property of Resonate and are protected by US and international trademark laws. Nothing in these Terms of Service shall give you any right, title, or interest in or to Resonate’s trademarks, nor give you any right to use Resonate’s trademarks for any purpose without the prior written approval of Resonate. You agree that you will do nothing inconsistent with Resonate’s ownership of its trademarks and will not register, nor attempt to register, any trade name or trademark which, in whole or in part, incorporates or is confusingly similar to any of Resonate’s trademarks.

8.5 Training Data. You agree that we may use Your Content in order to improve our algorithms and/or otherwise improve the Resonate Services or the services of Resonate’s affiliates or licensees (“Training Data”) and hereby grant Resonate a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Your Content incorporated within the Training Data, provided that you are not identified as the original provider of such data. 

8.6 Feedback. To the extent you provide Resonate with any feedback, best practices, templates, systems, ideas, or technical improvement suggestions about the Resonate Services (“Feedback”), you acknowledge and agree that Resonate will be the owner of all such Feedback and may use and incorporate the Feedback into the Resonate Services without compensation or attribution to you. Further, you acknowledge and agree that Resonate shall own all right, title and interest in and to Usage Data. Resonate uses Usage Data to improve the Resonate Services, analyzing trends, market research, development of other products and technologies, and/or other business purposes. Except in relation to the provision of the Services to you, any use of Usage Data will be masked or aggregated by Resonate so that you and your Authorized Users are not identified as the original provider of such data.

8.7 Similar Services; Residual Knowledge. Provided that your Confidential Information is not used in connection therewith, these Terms of Service will not preclude Resonate from providing or developing Resonate Services which are competitive to services or deliverables which might be delivered to your pursuant to this Agreement, irrespective of any similarity; nor will it preclude Resonate from rendering similar Resonate Services or providing similar materials to the Deliverables for any other person or entity, including a competitor of yours and including utilization of any aspect of Resonate’s IP. Resonate is free to use all of Resonate’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by Resonate prior to this Agreement, or acquired, developed, or refined by Resonate during the execution of the same, provided that Resonate does not use or disclose your Confidential Information or Your Content in breach of this Agreement. 

9. Disclaimer.

9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RESONATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. RESONATE DOES NOT REPRESENT THAT THE RESONATE SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE RESONATE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE RESONATE SERVICES WILL BE CORRECTED. RESONATE MAKES NO WARRANTY THAT (I) THE RESONATE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTIONS, OR (II) THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS OR PERFFORMANCE.

9.2 Artificial intelligence and machine learning are rapidly evolving fields of study. You and your Authorized Users are responsible for all decisions made, advice given, actions taken, and failures to take action based on the use of AI Services. AI Services use machine learning models that generate predictions based on patterns in data. Output generated by a machine learning model is probabilistic and should be evaluated for accuracy as appropriate for your use case, including by employing human review of such output. Given the nature of machine learning, use of our Services may produce results that do not accurately reflect real people, places, or facts. Further, results may not be unique and other users may receive similar results from our Services.  

10. LIMITED LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RESONATE BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST CONTENT, RELATING TO THE RESONATE SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE RESONATE SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO RESONATE’S NEGLIGENCE. RESONATE’S TOTAL, AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THIS AGREEMENT OR RELATED TO THE RESONATE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR THE RESONATE SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

11. Indemnification.  

11.1 By Resonate. Resonate will indemnify, defend and hold you and your Authorized Users harmless against any losses, damages, expenses or liabilities arising from claims that your use of the Resonate Services infringes or misappropriates the intellectual property rights of a third party; provided that, Resonate shall not be required to indemnify you to the extent that the claim was caused by or related to Your Content, your use of the Resonate Services in violation of these Terms of Service, or due to your unauthorized modifications or combinations of the Resonate Services with and into other technologies or services without Resonate’s written consent. If Resonate is obligated to indemnify you under this Section 11 or if it reasonably believes it may have liability under this Section 11, Resonate may, in addition to its other obligations hereunder: (i) obtain for you the right to continue using the Resonate Services on a non-infringing basis; or (ii) modify the Resonate Services so they are no longer infringing but of equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, Resonate may discontinue the provisioning of the Resonate Services; provided that, it will issue you a pro rata refund or credit for the Resonate Services for any unused prepaid fees.  

11.2 By You. You will indemnify, defend and hold Resonate harmless against any losses, damages, expenses or liabilities arising from your or your Authorized User’s use of the Resonate Services, including without limitation, the violation of these Terms of Service, or Your Content.

11.3 Process. A party seeking indemnity (an indemnified party) must give the indemnifying party prompt written notice of any claim for indemnification under this Section 11; provided that, the failure or delay in doing so will not excuse an indemnifying party of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. An indemnified party shall thereafter have the sole right to control the investigation, defense, and settlement of the claim at its sole cost and expense, provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party. An indemnified party may retain counsel to represent it on a non-controlling basis at its own cost and expense. An indemnified party shall reasonably cooperate with the indemnifying party in the investigation, trial and defense of such claim and any appeal arising therefrom at the indemnifying party’s expense. 

12. Third Party Products; Links.

Resonate may from time to time make Third-Party Products available to you. For purposes of these Terms of Service, such Third-Party Products are subject to their own terms and conditions and flow through provisions, as applicable. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. Third Party Products are not Resonate Services and, as between the parties, Resonate has no liability with respect to your procurement or use of Third-Party Products. If the Resonate Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Resonate has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Resonate Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

13. Export Regulation.

You agree to abide by and to conform to any and all export regulations in force during these Terms of Service that are applicable to you or the Resonate Services provided, including but not limited to any export rules and regulations of the United States of America. You understand that these regulations may prohibit the export or re-export of Documentation, and any information or technical data related to the Resonate Services. The Resonate Services and the underlying information and technology may not be accessed, downloaded, or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.

14. Modifications. 

Resonate reserves the right to change or modify the terms of these Terms of Service upon written notice to you.  All such changes shall be effective immediately; provided, however, for existing customers, such modified Terms of Service, unless otherwise stated, shall be effective upon the later of (i) upon the renewal of the subscription term for any subscription-based Resonate Services or (ii)  thirty (30) days after posting with respect to all other Resonate Services. If any changes to these Terms of Service are unacceptable to you, you may terminate your Order by providing ten (10) days’ written notice of termination to Resonate, delivered at any time within thirty (30) days of the effective date of the change. Continued use of the Resonate Services following the effective date of any changes constitutes your acceptance of the changes but does not affect the foregoing right of termination. For purpose of this Section 14, the posting of an updated copy of these Terms of Service to the Resonate Services shall constitute written notice of the change(s) to these Terms of Service.  

15. Miscellaneous.  

15.1 Notices.  Except as otherwise provided herein, notices under these Terms of Service by you to Resonate will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid to Resonate Recordings, LLC. 313 La Grange Road, Suite 558. Peewee Valley, Kentucky 40056, or such other updated address that is provided to you from time to time. You consent to receive from Resonate all communications including notices, agreements, legally required disclosures, or other information in connection with the Resonate Services electronically. Resonate may provide such notices by posting them on the Resonate Services or at the email address you provided to Resonate. If you desire to withdraw your consent to receive notices electronically, you must discontinue your use of the Resonate Services.

15.2 Assignment. You may not assign these Terms of Service or the rights granted hereunder without Resonate’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void.

15.3 Governing Law; Jurisdiction; Dispute Resolution. These Terms of Service and all Orders shall be governed by the laws of the Commonwealth of Kentucky without reference to its conflicts of law principles or your state or country of residence. Each party hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts located in Jefferson County, Commonwealth of Kentucky, United States of America, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree you may only bring claims against Resonate related to your use of the Resonate Services on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to these Terms of Service. You agree that any claim arising out of or related to these Terms of Service and/or any Order must be brought within one (1) year after the date it first accrued. If any action, suit, or legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms of Service or an Order, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party. 

15.4 Injunctive Relief. Each party acknowledges that a breach by a party of Section 6 (Confidentiality) or Section 8 (Intellectual Property Rights), may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Terms of Service to the contrary.

15.5 Third-Party Software. Portions of the Resonate Services may utilize or include third party software, open-source software, and other copyrighted material. Use of such third party or open-source software is governed exclusively by their respective terms and not by these Terms of Service.  

15.6 Miscellaneous. The Order together with these Terms of Service and any other terms and conditions incorporated into these Terms of Service by reference constitutes the complete agreement between Resonate and you regarding the Resonate Services and supersedes all previous communications between the parties relating to the subject matter herein. If any part of these Terms of Service is found unenforceable by a court of competent jurisdiction, such provision(s) will be ineffective to the extent of the court’s ruling and the remainder of these Terms of Service will remain in full force and effect. Resonate’s failure to enforce any rights hereunder, irrespective of the length of time for which such failure continues, shall not constitute a waiver of those or any other rights.  The waiver by a party of any breach of any provision of these Terms of Service or an Order will not operate or be construed as a waiver of any subsequent breach. Except for payment obligations, neither party shall be held responsible for any delay or failure in its performance to the extent that such delay or failure is caused by causes beyond its reasonable control. The parties’ relationship is that of independent contractors.  Neither party is an agent for the other, nor does either party have the right to bind the other to any agreement with a third party. The captions used in these Terms of Service are for convenience only and are not binding. 

16. Definitions. 

Terms not otherwise defined herein shall have the following meanings:

“Access Credentials” means the user identification name and password and/or other access keys or controls for the Resonate Services. 

“Authorized Users” means individuals authorized by you to use the Resonate Services solely on your behalf, which may include, employees, temporary employees, and contractors but no other third parties without Resonate’s prior written consent.  

“Authorized Recipients” are a party’s and its affiliates’ officers, employees, agents and consultants who require access to Confidential Information for the purpose set forth in these Terms of Service and who are bound by confidentiality obligations at least as stringent as those set forth herein. 

“Confidential Information” refers to any proprietary information, software, personal information, data or know-how of the Discloser that is disclosed under these Terms of Service or an Order which is marked as confidential, or which a reasonable person would understand to be confidential based on the context of the disclosure or the nature of the information. For purposes of clarification, the SaaS Services, Resonate IP, and Documentation shall be Resonate’s Confidential Information and Your Content shall be your Confidential Information except to the extent included in Usage Data. Confidential Information does not include information which the Recipient may demonstrate through written evidence: (i) was already known to the Recipient prior to the time that it was disclosed by the Discloser; (ii) is or has entered the public domain through no breach of these Terms of Service by Recipient; (iii) has rightfully been received by Recipient  from a third party without any breach of these Terms of Service; (iv) was approved for release by the written consent of the Discloser; (v) was independently developed by the Recipient without use of the Discloser’s Confidential Information; or (vi) was required to be disclosed pursuant to the order of a court or governmental agency of competent jurisdiction provided that the Discloser has, if permitted by law, been given reasonable notice of the order and the opportunity to contest the disclosure and any such disclosure is limited strictly to the Confidential Information which is the subject of such order. 

“Deliverable” and “Deliverables” means and includes all new and original material including programs, source code, object code, Software (as hereinafter defined), data, technologies, drawings, models, designs, formulas, works of authorship, intellectual property rights, reports, documents, and tangible items created for you by Resonate in connection with Resonate’s performance of an Order and these Terms of Service.

“Documentation” means user manuals, online help files, technical manuals, and other materials published by Resonate which describe the Resonate Services and its uses, features, specifications, and/or technical requirements.

“Order” means the Resonate Services that you subscribe to or purchase from Resonate, whether via the Resonate website or separate ordering document.

“Professional Services” means the development, implementation, configuration, integration, training, advisory, engineering, and other professional services related to the Resonate Services that are specified in an Order or statement of work.

“Resonate Development Tools” means pre-existing materials Resonate has developed that are used in the creation of the Software but that are not themselves incorporated into the Software, including, but not limited to, compilers and testing tools.

“Resonate Methods” means methodologies, concepts, structures, techniques, processes, and the tools or utilities and content associated with such methods, including, but not limited to, configurations, templates, algorithms, formulas, inventions, developments, discoveries, improvements, source or object code, data, databases, applications, engine protocols, routines, models, displays and manuals.

“Resonate Foundational Applications” means that portion of the Software which (A) has general application for use in providing a foundation for creating software or establishing a connection to other software platforms and/or general design, architecture, or similar applications (such as algorithms, frameworks, utilities, routines, components, design patterns and templates); and (B) does not rely on any of your Confidential Information protected under Section 6 hereof.

“Resonate Services” means the SaaS Services, Professional Services, and any other online service provided or controlled by Resonate for use with the Services.  

“SaaS Services” means the Resonate cloud-based podcast hosting software-as-a-service product provided to you pursuant to an Order and these Terms of Service. 

“Software” means all original computer software, computer programs, source code, object code, algorithms and related documentation created under and to be delivered pursuant to an Order. “Software” does not include any third-party software, “Resonate Development Tools” or “Resonate Foundational Applications.”

“Term” means the period of authorized access and use of Services and/or Professional Services as set forth in an Order.

“Third-Party Products” means any products provided by third parties, such as open-source software or other software, that may be used with or incorporated into the Resonate Services.

“Usage Data” means data and information related to your use of the Resonate Services and that is used by Resonate in an aggregate and anonymized manner, including to compile statistical and performance information for the provision and operation of the Resonate Services. Usage Data includes, but is not limited to, Training Data.  

“Your Content” means any information, data, content, videos, music, sound, photos, graphics, code, or other materials, transmitted or otherwise submitted to the Resonate Services by you or your Authorized Users, including information necessary to set-up your account.