Terms and Conditions

These Terms and Conditions (these “Terms”) are entered into between Resonance Technologies, Inc., a Delaware corporation (“Resonance”) and the entity or person placing an order via the applicable Order Form (“Customer” or “you”). An “Order Form” shall mean a mutually signed order form or an online registration page. The “Effective Date” of these Terms is the date set forth in the applicable Order Form (or if none is provided, the date that Customer first registers for the Services).

1.                            SERVICES; SUPPORT

a.                            Right to Access. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with these Terms (including any limitations and restrictions set forth on the applicable Order Form), Resonance grants Customer (and its Authorized Timekeepers) a nonexclusive, limited, non-sublicensable, nontransferable right to access and use the Resonance service(s) specified in such Order Form (collectively, the “Services”) during the term set forth in such Order Form. Customer may only use the Services for its internal business purposes and only in accordance with Resonance’s official user documentation (the “Documentation”) and the usage restrictions set forth in the Order Form.

b.                            Support. Resonance will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Resonance may suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in material breach of these Terms, including failure to pay any amounts due. Resonance will provide reasonable support during its business hours in accordance with its standard support practices.

c.                            Restrictions. Except as expressly set forth in these Terms, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) represent that any Output (as defined below) is human-generated; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying models, structure, ideas, or algorithms of the software underlying the Services (except to the extent applicable laws specifically prohibit such restriction); (iii) modify, translate, or create derivative works based on the Services; (iv) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (v) use the Services for the benefit of a third party; (vi) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vii) use the Services to build an application or product that is competitive with any Resonance product or service or any third-party large language model provider (“Third-Party LLM”); (viii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (ix) bypass any measures Resonance may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); or (x) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Materials (as defined below) onto the Services. Customer shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to email marketing, data privacy, international communications, export laws and the transmission of technical or personal data laws). Customer shall not use the Services in a manner or for purposes that are harmful, deceptive, threatening, harassing or obscene or that violates any third-party intellectual property, contractual or other proprietary rights. Customer shall indemnify and hold Resonance harmless against any damages, losses, liabilities, settlements and expenses in connection with any claim or action arising from any violation of the foregoing or from Customer’s use of Services.

d.                            Customer Systems. Customer acknowledges that the proper operation of the Services may be dependent on the configuration, specifications, and software environment of Customer’s software and systems. Resonance shall not be held responsible for any incompatibilities, errors, or malfunctions arising from updates to Customer’s software and systems.

e.                            Third-Party Services. Customer acknowledges and agrees that the Services may operate on, integrate with or using application programming interfaces (APIs) and/or other services provided by third parties (“Third Party Services”). Customer agrees that Resonance is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Resonance does not make any representations or warranties with respect to Third Party Services or any third-party providers.

2.                            FEES; PAYMENT

a.                            Fees; Payment. Customer shall pay Resonance the applicable fees as set forth in each Order Form (the “Fees”). Unless otherwise specified in an applicable Order Form, payments will be due within thirty (30) days of invoice. Except as otherwise provided in these Terms, all Fees paid are non-refundable and are not subject to set-off.

b.                            Past Due Invoices. Past due invoices are subject to interest on any outstanding balance of the lesser of 3% per month or the maximum amount permitted by law.

c.                            Taxes. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Resonance’s net income). Should Resonance pay any such taxes on behalf of Customer, Customer agrees to reimburse Resonance for such payments, unless Customer provides Resonance with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.                            INTELLECTUAL PROPERTY; DATA

a.                            Customer Materials. Customer shall retain all right, title and interest in and to the Customer Materials, including all intellectual property rights therein. Customer shall be responsible for the accuracy, quality, integrity, legality, and reliability of all Customer Materials. “Customer Materials” shall include all data, information or other material provided, uploaded, or submitted by Customer to the Services.

b.                            Resonance Intellectual Property. As between the parties, Resonance retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Resonance for the purposes of these Terms, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms.

c.                            Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Resonance with respect to the Services, which Resonance may freely use.

4.                            CONFIDENTIALITY

a.                            Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (“Proprietary Information” of the Disclosing Party).

b.                            Obligations. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of these Terms, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.

c.                            Exclusions. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in these Terms will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

d.                            Deletion. Promptly after the expiration or termination of these Terms, the Receiving Party shall immediately delete all Proprietary Information of the Disclosing Party (including all Customer Materials), subject to all applicable laws, regulations, and governmental or legally-mandated record-keeping requirements.

e.                            Performance Data. Resonance may collect, aggregate, and anonymize data derived from Customer’s use of the Services, including but not limited to usage data, performance metrics, and other operational insights (the “Aggregated Data”). Such Aggregated Data shall not contain any personally identifiable information (PII) or other data that could reasonably identify Customer or any individual or entity associated with Customer. Resonance may use Aggregated Data for the purpose of improving its Services, delivering insights, and for marketing and other business purposes.

f.                              Information Security. Resonance is responsible for establishing and maintaining a commercially reasonable information security program that is designed to: (i) ensure the security and confidentiality of the Customer Materials; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Materials; and (iii) protect against unauthorized access to, or use of, the Customer Materials.

5.                            TERM; TERMINATION

a.                            Term. Unless earlier terminated as provided in these Terms, these Terms shall begin on the date of the first Order Form and end as of the expiration of the last active Order Form. For each Order Form, unless otherwise provided therein, the term of such Order Form shall begin as of the date of such Order Form and shall continue until the end of the term set forth in such Order Form, and shall renew for successive one (1) year periods unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

b.                            Termination. Either party may terminate these Terms for the other party’s material breach that remains uncured thirty (30) days after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, Resonance may suspend Customer’s access to the Services if Customer’s account is more than sixty (60) days past due.

c.                            Effects of Termination. All provisions of these Terms that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

6.                            INDEMNIFICATION

a.                            Indemnity. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, the Customer Materials or Customer’s use of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any applicable law (except to the extent such infringement results from the underlying software of the Services, as further described below), or (ii) in the case of Resonance as Indemnitor, the underlying software of the Services infringe, violate, or misappropriate any third party intellectual property or proprietary right.

b.                            Exclusions. The foregoing obligations of Resonance do not apply with respect to the Services or its underlying software or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created by Resonance (including without limitation any Customer Materials), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Resonance, (iv) combined with other products, processes or materials not provided by Resonance (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.

c.                            Procedures. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

7.                            WARRANTIES; DISCLAIMER

a.                            Resonance Warranties. Resonance represents and warrants: (i) it has the authority to enter into these Terms, (ii) the Services shall be provided in a professional, and workmanlike manner by qualified personnel; and (iii) it will use commercially reasonable industry standard methods designed to ensure the Services do not include any computer code or other instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof.

b.                            Customer Warranties. Customer represents, warrants, and covenants to Resonance that: (i) it has obtained and will maintain all necessary rights, approvals, and consents for its collection, use, processing, and transmission of all data, information, and content inputted into or processed through the Services (the “Inputs”) for the generation of the campaign, marketing and other content outputted by the Services (the “Outputs”); (ii) its use of Inputs and Outputs complies with all applicable laws, regulations, and industry standards; and (iii) it has implemented and will maintain appropriate technical and organizational measures to protect Inputs and Outputs against unauthorized or unlawful processing, access, and disclosure.

c.                            General. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

d.                            Output Disclaimer. RESONANCE EMPLOYS A RANGE OF TECHNICAL MEASURES TO ENHANCE THE ACCURACY OF ITS AI FEATURES. HOWEVER, CUSTOMER ACKNOWLEDGES AND AGREES THAT DUE TO THE NATURE OF AI-GENERATED OUTPUTS, THE ACCURACY AND COMPLETENESS OF THESE OUTPUTS CANNOT BE FULLY GUARANTEED. CUSTOMER ACCEPTS THAT RELIANCE ON THESE OUTPUTS IS AT THEIR OWN RISK, AND RESONANCE DISCLAIMS ANY RESPONSIBILITY FOR INACCURACIES OR OMISSIONS IN THE GENERATED CONTENT OR OUTPUTS.

8.                            LIMITATION OF LIABILITY

EXCEPT FOR THE PARTIES’ IP INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION ENTITLED “RESTRICTIONS,” IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO RESONANCE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

9.                            NOTICE

All notices under these Terms will be in writing and sent (a) for notices to Resonance to Resonance Technologies, Inc. at 1201 Tennessee street Apt. 537 San Francisco CA 94107 and (b) for notices to Customer, to the address or email address set forth in the applicable Order, or in each case, at such other address as may be given in writing by either party to the other in accordance with this Section, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.

10.                      MISCELLANEOUS

a.                            Publicity. Customer agrees to allow Resonance to use and display Customer’s name and logo on Resonance’s website and in Resonance’s promotional materials to identify Customer as a customer, subject to Customer’s trademark guidelines.

b.                            Governing Law; Arbitration. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and any dispute between the parties related to the subject matter of these Terms will be resolved by binding arbitration in the English language in San Francisco, California under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. In any action or proceeding to enforce rights under these Terms, the prevailing party shall be entitled to recover costs and attorneys’ fees.

c.                            Entire Agreement. This Agreement represents the entire agreement between Customer and Resonance with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Resonance with respect thereto.

d.                            Amendment; Waiver. Except as otherwise provided herein, no modification or amendment of any provision of these Terms shall be effective unless agreed by both parties in writing, and no waiver of any provision of these Terms shall be effective unless in writing and signed by the waiving party.

e.                            Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military.

f.                              Assignment. Customer may not assign any of its rights or obligations under these Terms without Resonance’s consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

g.                            Enforceability. If any provision of these Terms is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full effect and enforceable.