Rmonix Subscription Agreement

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This Subscription Agreement (“Agreement”) is made and entered into immediately upon acceptance of its terms and conditions by you, or immediately upon your use of the Services, as defined below, and is between you and Resonance Systems, Inc. a Tennessee corporation (“Resonance”).

Resonance provides a website (“Website”) that provides access to Resonance’s software called Rmonix which provides analysis of data from analyzers (“Services”).

You desire to use the Services pursuant to the terms and conditions in this Agreement.

You and Resonance hereby agree as follows:

1. Changes. From time to time Resonance may update the terms and conditions of this Agreement without notice. If you elect not to accept the new terms and conditions, then Resonance may, in its sole discretion, immediately terminate this Agreement, discontinue providing the Services, and refund to you the amount of money that you have prepaid for Services that you have not received on the date you elect not to accept the new terms and conditions. Your use of the Services after an update of the terms and conditions of this Agreement shall constitute your consent to such changes. 

2. Use. Subject to the terms and conditions of this Agreement, Resonance hereby grants you a limited, worldwide, nonexclusive, nonassignable right to access the Services for analyzing data produced from the analyzers for which you currently have a fully paid up support plan.  

3. Services and Charges. In consideration of the payment of Charges, as defined below, Resonance will provide the Services to you, subject to the terms and conditions of this Agreement. “Charges” means the support fees applicable to the particular Services you have elected to receive from Resonance.   All Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes owed by Resonance.

4. Payment Terms. You shall pay Resonance for all Charges through credit card or similar payment mechanism that Resonance accepts (“Payment Mechanism”) or if Resonance agrees in advance a purchase order. If you are not paying by purchase order, you agree to provide Resonance the expiration date and other information requested by Resonance pertaining to the Payment Mechanism, and you hereby authorize Resonance to charge the Payment Mechanism for all Charges applicable to your purchase of the Services provided pursuant to this Agreement. If applicable, upon cancellation or expiration of your Payment Mechanism, you agree to immediately provide a new Payment Mechanism and other information requested by Resonance pertaining thereto. If Resonance allows you to submit a purchase order then you agree to pay all Charges within 30 days of receipt of an invoice. If you have not paid all sums due Resonance in accordance with the terms hereof, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Furthermore, upon your failure to make payment in accordance with the terms hereof, a late fee of ten percent (10%) of the amount past due shall be due and payable by you with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof shall not be deemed to be a waiver of any future finance charges or late fees. You shall be liable to Resonance for any and all costs and expenses incurred by Resonance, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder. The terms and conditions in this Agreement govern notwithstanding any inconsistent or additional terms and conditions of any order.

5. Limitations. As a condition of using the Services you represent and warrant that you will not use the Website or Services for any illegal or unauthorized purpose, and your use of the Website and Services will not violate any laws in your jurisdiction (including but not limited to copyright laws). If your bandwidth usage or data usage related to the Services consistently or significantly exceeds the average bandwidth usage of other users of the Services, as determined solely by Resonance, Resonance reserves the right to immediately disable your account or throttle your usage until you can reduce your bandwidth consumption.

6. User Name and Password. During the registration process you created a user name and password or are using an existing user name and password from a service such as Google or LinkedIn that allows you to have access to the Services through the Website. You will not provide your user name or password to access Services to any other person or entity, or allow any other person or entity to access Services provided to you under your user name and password. You agree that you are solely responsible for any actions that occur under your user name and password. In the event that your user name and password become known by a third party you agree to notify Resonance immediately.

7. Website.You acknowledge and agree that the information and Services provided by Resonance are accessed by you in part through the Website. You accept and agree to comply with the Privacy Policy and copyright and trademark notices of Resonance posted on the Website and in effect from time to time. You acknowledge and agree that, because the Services are provided in part through the Website, it is necessary for you to have computer equipment and an internet connection that meets minimum specifications published by Resonance from time to time on the Website, and you acknowledge and agree to periodically update your computer equipment or internet connection to meet such minimum specifications. You acknowledge that the Services may be interrupted due to (a) Website downtime for scheduled maintenance at Resonance’ sole discretion, or (b) interruptions in internet connectivity or other Website downtime caused by circumstances beyond Resonance’ control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, pandemic, acts of terror, strikes or other labor problems, computer or telecommunications failures, delays involving hardware or software not within Resonance’ control, network intrusions or denial of service attacks. You agree that Resonance shall not, in any way, be liable for, or have responsibility with respect to, any such Service interruptions.

8. User Content. You intend to load or give Resonance access to information about your devices and other information (“Content”) to be used by the Services. Resonance acknowledges that, as between the parties, all Content shall remain your property. You acknowledge that Resonance is not responsible for Content you input into the Website or otherwise provide access to. You hereby grant Resonance a license to store, access, modify, and use the Content to provide the Services, perform internal testing to improve the Services, and use non-identifiable data for training purposes.

9. Ownership. Resonance owns all right, title and interest in (i) the software that implements the Services and (ii) all elements of the Website. You do not acquire any ownership or rights in the Services or Website except as expressly provided herein. The Services and Website are copyrighted. Unauthorized copying of any element of the Website or Services or any accompanying written materials is expressly forbidden. You agree that you may be held legally responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this Agreement. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works of the Services or software that provides the Services. You may not wrap the Services in another interface or sell or license access to the Services.

10. Updates.Resonance may, from time-to-time, upgrade or modify the Services and the Website (“Updates”). All Updates are provided to you pursuant to the terms and conditions of this Agreement. 

11. Technical Support. Resonance agrees to provide technical support to you as long as you have paid all Charges owed under this Agreement. Technical support is available by phone and electronic mail using the support information provided on the Website.

12. Termination.If you choose to cancel your subscription, you must terminate your use of the Services by canceling your subscription 60 days prior to the annual renewal of support. If you do not cancel your subscription 60 days prior to the annual renewal of support then your subscription automatically renews for another year and this license continues for as long as you have fully paid for annual support.  Resonance may terminate your use of the Services and deny you access to the if you fail to pay the Charges owed or otherwise breach this Agreement. If your use of the Services is terminated any Content stored by Resonance will be exported to you upon your request as long as Resonance still maintains the Content. Once your use of the Services is terminated your Content may be deleted after 90 days and your user name and password will be immediately disabled. Any Content deleted by Resonance because of the termination of your use of the Services cannot be retrieved.

13. Website Modifications; Price Changes. Resonance reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or Services (or any part thereof) with or without notice. Charges of all Services, including but not limited to fees for monthly Services, are subject to change upon 30 days’ notice from Resonance. Such notice may be provided at any time by posting the changes to the Website. Resonance shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Website.

14. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE WEBSITE ARE PROVIDED "AS IS", AND RESONANCE AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SERVICES AND WEBSITE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES THAT THE SERVICES (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. Resonance does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable or that any errors in the Website or Services will be corrected.

15. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Resonance be liable under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind (“Consequential Losses”), including, without limitation, Consequential Losses arising from loss of profits, revenue, data or use, or from interrupted communications or damaged data or Content, or from any defect or error or in connection with your acquisition of substitute goods or services or from malfunction of the Services, or any such Consequential Losses arising from breach of contract or warranty or from negligence or strict liability, even if Resonance or any other person has been advised or should know of the possibility of such Consequential Losses, and notwithstanding the failure of any remedy to achieve its intended purpose. Resonance’ entire liability under any provision of this Agreement is limited to, in Resonance sole decision, the repair or replacement of the Services or Website, or an amount equal to the Charges paid under this Agreement.

16. Indemnification. You agree to indemnify, defend and hold harmless Resonance, and the officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies of Resonance (each an “Indemnified Person”) from any loss, cost, expense (including attorney’s fees, expert’s fees, and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as “Claim”), including without limitation, for any personal injury or death, in any manner arising out of or relating to your, or your officers, directors, employees, agents, assigns, invitees, or other users using the Services under your user name and password, whether authorized or not (i) violating or otherwise breaching of any provision of this Agreement, (ii) acts or omissions in the conduct of your business, (iii) negligence, recklessness or intentional misconduct, and (iv) violation of any and all laws, rules or regulations. You further agree to indemnify, defend and hold each Indemnified Person harmless from any Claim, including without limitation, for any personal injury or death, in any manner arising out of or relating to Resonance’ refusal to provide Services to you for any reason. These obligations will apply even if such lawsuit or other claim arises out of an Indemnified Person’s negligence, gross negligence, failure to perform duties under this Agreement, strict liability, failure to comply with any applicable law, or other fault. This provision shall survive the termination of this Agreement.

17. Third Parties. Through the Services Resonance provides integration to various e-commerce tools provided by third parties as indicated on the Website (collectively, “Third Parties”).  Any copyright or trademark rights are retained by their respective Third Party owners, and any copyrighted images of Third Parties on the Website are used solely for informational purposes. Resonance is not an authorized distributor of any Third Party products. Resonance is an independent company and is in no way affiliated with any of the Third Parties. You understand and acknowledge this disclaimer, and will not construe any information, data, images, or representations from Resonance or the Website as having any affiliation with the Third Parties. If the e-commerce tools provided by Third Parties do not work or provide accurate information then the Services Resonance provides will not work correctly.  

18. Miscellaneous.

(a) No Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action upon any third party.

(b) Waiver. No party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.

(c) Assignment.This Agreement is not assignable by you except upon the prior written consent of Resonance. Any unauthorized assignment of this Agreement is void. Resonance may assign this Agreement, in whole or in part, or subcontract its obligations under this Agreement, in whole or in part, without notice to you and upon such assignment, Resonance shall be released from all liability hereunder.

(d) Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof will not affect the validity or enforceability of the remainder of such provision, term, or condition or of any other provision, term, or condition.

(e) Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, electronic mail, overnight courier service, first class mail postage prepaid, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or upon delivery if sent by electronic mail, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices to you shall be sent to the address provided when you registered for the Services. Notices for Resonance shall be sent to 8609 Kingston Pike, Suite 201, Knoxville, Tennessee 37923-5103. 

(f) Governing Law. The terms and conditions of this Agreement are governed by and construed in accordance with the laws of the State of Tennessee, USA without resort to its conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and does not govern or apply to the terms and conditions of this Agreement.

(g) Jurisdiction and Venue. The parties hereby irrevocably submit to the jurisdiction of the state courts of the State of Tennessee and to the jurisdiction of the United States District Court for the Eastern District of Tennessee, for the purpose of any suit, action, or other proceeding related to, arising out of or based upon this Agreement or in any way related to, arising out of or involving the Services or Website; waive and agree not to assert by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in any inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; and waive and agree not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such Tennessee state or federal court. The parties hereby consent to service of process by registered mail at the address to which notice is to be given. The exclusive venue for any proceeding under this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee. You acknowledge that the prices for Services offered under this Agreement are in part dependent on your consent to jurisdiction in Tennessee and exclusive venue in Knox County, Tennessee, and without your consent to this jurisdiction and venue provision the prices for Services would be higher.

(h) Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

(i) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior oral or written agreements between the parties. This Agreement may not be amended unless such amendment is in writing and signed by all parties hereto.

If you have any questions about this Agreement please contact Resonance at support@Resonance.com.