Resonate Terms of Service
Last Updated: November 15, 2021
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Resonate Labs, Inc.(together with our affiliates, “Resonate”, “we”, or “us”) provides meditation hardware and related products, services, content and features through Resonate websites, and through mobile, desktop, or device applications (including iOS and Android applications (“Apps”)) and Resonate-controlled social media pages (including on Facebook, Instagram, Soundcloud, Spotify and Twitter). To make these Terms easier to read, the Resonate Sites and Apps, along with the Resonate tablet and studio interfaces and Resonate-controlled social media pages are collectively called the “Resonate Service” or “the Services”. By registering as a member or by visiting, browsing, or using the Resonate Service in any way and have your usual residence in the US or Canada, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and Resonate.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 20 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND RESONATE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
If you do not wish to be bound by these Terms, you may not access or use the Resonate Service. Certain elements of the Resonate Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Resonate Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
1. Who May Use the Resonate Service
Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to purchase a Resonate. Individuals 14 years of age and older who do not have a cardiac pacemaker, history epilepsy, or seizures may participate in Resonate experiences, provided that such individuals:
- Have been cleared to participate by a family physician;
- Have permission to participate from a parent or legal guardian who will provide supervision
- Abide by all safety precaution and instructions in the applicable user manual; and
- Rest, hydrate and modify as needed.
We may, in our sole discretion, refuse to offer the Resonate Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Resonate Service is revoked where these Terms or use of the Resonate Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the Resonate Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
2. License to Use the Resonate Service
License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use Resonate and its Service, Resonate grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the Resonate Service for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content (defined below) available on the Resonate Service and the right to download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or Resonate.
Restrictions. Except as expressly permitted in writing by an authorized representative of Resonate, you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Resonate Service, nor will you take any measures to interfere with or damage the Resonate Service. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the Resonate Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by Resonate in these Terms are reserved.
- What information we may collect about you;
- What we use that information for; an
- With whom we share that information.
4. Membership Requirements Registration
To enjoy full access to the Resonate Service, you must register as a member of the Resonate Service and enter into a subscription agreement for access to our on-demand classes, Content and features (a “Subscription”). You must provide complete and accurate registration information to Resonate, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.
Profile Information and Picture. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Resonate’s sole discretion).
Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Resonate Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.
5. Membership Structure and Fees
Resonate will provide information on its then-current Subscription requirements on the Resonate Site and/or by other means through the Resonate Service. Features and prices are subject to change.
6. Sale of Products
Resonate accepts orders for the Resonate through the Resonate Site. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. Advertising depictions, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Resonate Site or to your email address after your payment has been processed.
7. Termination; Account Deletion
Term. These Terms begin on the date you first use the Resonate Service and continue as long as you have an account with us and/or continue to use the Resonate Service.
Termination. Resonate may, in Resonate’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if Resonate determines that you have violated these Terms or that your conduct or User Content would tend to damage Resonate’s reputation or goodwill. If Resonate deletes your account, you may not re-register for or use the Resonate Service under any other user name or profile. Resonate may block your access to the Resonate Service to prevent re-registration.
Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by Resonate will terminate. The following sections survive termination: Privacy (Section 3), User Content (Section 8), Indemnification (Section 12), No Warranties (Section 15), Limitation of Liability (Section 16), Safety Warnings (Section 17), Intellectual Property (Section 18), Arbitration Requirement & Class Action Waiver (Section 20), Contracting Entities, Governing Law and Jurisdiction (Section 21), and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and Resonate is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all on-demand classes and any other Content or features provided through the Resonate Service. Resonate, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.
8. User Content
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Resonate Service; and (ii) ”User Content” means any content that users (including you) provide to be made available through the Resonate Service. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Resonate Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Resonate Service.
As between you and Resonate, you represent that you own (or have all rights necessary to grant Resonate the rights below to) all User Content that you submit to the Resonate Service, and that Resonate will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Resonate a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Resonate Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Resonate or through the Resonate Service about improving or adding new features or products to the Resonate Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to Resonate a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Resonate Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
9. General Prohibitions and Resonate’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content or engage in any activity that:
- infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- is fraudulent, false, misleading or deceptive;
- is defamatory, obscene, pornographic, vulgar or offensive;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
- exploits minors or
- promotes illegal or harmful activities or substances;
- Download and/or install any third party software and/or application on any Resonate hardware (excluding assistive technologies that are necessary for your own use of the Resonate Service) that is not expressly permitted by Resonate in writing;
- Use, display, mirror or frame the Resonate Service or any individual element within the Resonate Service, Resonate’s name, any Resonate trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Resonate’s express written consent;
- Access, tamper with, or use non-public areas of the Resonate Service, Resonate’s computer systems, or the technical delivery systems of Resonate’s providers;
- Attempt to probe, scan or test the vulnerability of any Resonate system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Resonate or any of Resonate’s providers or any other third party (including another user) to protect the Resonate Service or Content;
- Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Resonate Service;
- Attempt to access, scrape or search the Resonate Service or Content or download Content from the Resonate Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Resonate or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Resonate trademark, logo URL or product name without Resonate’s express written consent;
- Use the Resonate Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Resonate;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Resonate Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Resonate Service or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Resonate Service;
- Collect or store any personally identifiable information from the Resonate Service from other users of the Resonate Service without their express permission;
- Copy, use, index, disclose or distribute any information or data obtained from the Resonate Service, whether directly or through third parties (such as search engines), without Resonate’s express written consent
- Alter, replicate, store, distribute or create derivatives from the Content available via the Resonate Service except as expressly permitted in writing by Resonate;
- Impersonate or misrepresent your affiliation with any person or entity
- Access, use or exploit the Resonate Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Resonate or the Resonate Service;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing
Although we’re not obligated to monitor access to or use of the Resonate Service or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Resonate Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Resonate Service and Resonate’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Resonate Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Post, upload, publish, submit or transmit any User Content or engage in any activity that:
10. Member Interactions, Dealings with Third Partie
When interacting with other Resonate members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Resonate Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Resonate is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when participating in a Resonate experience in a third party location, please be advised that Resonate is not responsible for any lost or stolen items or poor product experiences.
You agree to indemnify, defend, and hold harmless Resonate and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to
- your activities on the Resonate Service,
- any User Content submitted by or on behalf of you or
- your violation of these Terms
12. Third Party Software and Applications
Downloading and/or installing any third party software and/or applications that are not expressly authorized by Resonate on any Resonate hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Resonate.
13. Third Party Links and Content
There may be links on the Resonate Service that let you leave the particular Resonate Service you are accessing in order to access a linked site that is operated by a third party. Resonate neither controls nor endorses these sites, nor has Resonate reviewed or approved the content that appears on them. Resonate is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Resonate is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
14. No Warranties
Resonate reserves the right to modify the Resonate Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Resonate Service, at any time, in its sole discretion. Resonate has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Resonate Service is suitable for all users or that it will continue to be available for any length of time.
Resonate provides the Resonate Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Resonate Service at your own risk. Other than as expressly provided in writing by Resonate in connection with your purchase of a Resonate product, to the extent permitted by law, Resonate expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Resonate makes no representations or warranties:
- That the Resonate Service is or will be permitted in your jurisdiction;
- That the Resonate Service will be uninterrupted or error-free;
- Concerning any Content, including User Content;
- Concerning any third party’s use of User Content that you submit;
- That the Resonate Service will meet your personal or professional needs;
- That Resonate will continue to support any particular feature of the Resonate Service; o
- Concerning sites and resources outside of the Resonate Service, even if linked to from the Resonate Service.
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE Resonate SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
15. Limitation of Liability
To the fullest extent permitted by law:
- Resonate shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Resonate Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and
- Resonate’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Resonate over the 12 months preceding the date your first claim(s) arose.
If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Resonate’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Resonate and you.
16. Safety Warning
THE Resonate SERVICE OFFERS HEALTH INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING ANY HEALTH AND WELLNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE RESONATE SITE OR HEARD ON THE RESONATE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE RESONATE SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE RESONATE SITE OR AVAILABLE THROUGH ANY RESONATE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE RESONATE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, RESONATE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE RESONATE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of Resonate with the intent of using the Resonate Service, you affirm that either (A) all of the following statements are true:
- no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner;
- you have never felt chest pain when engaging in physical activity;
- you have not experienced chest pain when not engaged in physical activity at any time within the past month;
- you do not have a cardiac pacemaker
- you do not have a history of history of seizures, epileps
- your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition;
- you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and
- you do not know of any other reason you should not experience vibration, spatial sound or light therapy
(B) your physician or general practitioner has been specifically consulted by you and approved of your use of the Resonate Service.
If applicable, you further affirm that
- you are not pregnant, breastfeeding or lactating; unless
- your physician or general practitioner has been specifically consulted and approved your use of the Resonate Service.
Resonate reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
17. Intellectual Property Acknowledgment
You acknowledge and agree that your use of the Resonate Services and any Content contained therein is dependent upon you agreeing to and abiding by the Resonate Intellectual Property and DMCA Policy at all times. You further acknowledge that the Resonate Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Resonate-generated content, and content provided to Resonate by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and Resonate, Resonate own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the Resonate Service.
18. Intellectual Property Usage and Reporting Infringement
Resonate respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the Resonate Service or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please go to the Resonate Intellectual Property and DMCA Policy for directions on how to report it to us.
19. ARBITRATION REQUIREMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Resonate agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Resonate entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Resonate are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions and Opt-out. As limited exceptions to Section 20(1) above:
- you may seek to resolve a Dispute in small claims court if it qualifies; and
- we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.
- In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Resonate’s Legal Department at the Resonate address below within 30 days following the date you first agree to these Terms.
VPM Delaware ℅ Resonate Legal
2093 PHILADELPHIA PIKE #3881
CLAYMONT, DE 19703
- Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, we will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of Resonate’s Legal Department at the Resonate address set out in Section 20.3 above. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after Resonate’s receipt of the Notice, then you or Resonate may initiate arbitration proceedings as set out below.
- Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-5267. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator that is either
- a retired federal or state court judge, or
- an attorney who has been licensed to practice law in the state of Delaware for at least 10 years. The arbitration will be conducted by an in-person hearing, unless we both agree otherwise
- If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator. Any arbitration hearings will take place in the county (or other municipality) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both you and Resonate may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If you assert a claim against Resonate, you will be responsible for paying a $250 consumer filing fee. Resonate will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, Resonate will reimburse your initial filing fee. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Class Action Waiver. YOU AND RESONATE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor the arbitrator may consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.
- Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “Modification”, if Resonate changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Resonate’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Resonate in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Severability. With the exception of any of the provisions in Section 20(6) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still appl
If your contract for the Resonate Service is with Resonate Labs, Inc., these Terms shall be governed by the laws of the State of Delaware, United States of America, without regard to principles of conflicts of law. If your contract for the Resonate Service is with another Resonate entity, these terms shall be governed by the laws of the jurisdiction under which that Resonate entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Subject to the agreements in Section 20 above,
- if your contract for the Resonate Service is with Resonate Labs, Inc., exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in Delaware, United States of America, and you consent to the jurisdiction of those courts, and
- if your contract for the Resonate Service is with another Resonate entity, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the courts located in the jurisdiction under which that Resonate entity is incorporated, and you consent to the jurisdiction of those courts.
21. Interpretation; Severability; Waiver; Remedie
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Resonate in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Resonate. Resonate’s rights and remedies hereunder are cumulative and not exclusive.
22. Successors; Assignment; No Third Party Beneficiarie
These Terms are binding upon and will insure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Resonate’s prior written consent. Resonate may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from Resonate electronically. Resonate may communicate by email or by posting to the Resonate Service. For support-related inquiries, you may email Support@weresonate.com.
Nothing in these Terms or otherwise limits Resonate’s right to object to subpoenas, claims, or other demands.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Resonate Site and/or through the Resonate Service. Modifications will be effective on the date that they are posted to the Resonate Site. It’s important that you review the Terms whenever we update them before you use the Resonate Service. If you continue to use the Resonate Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20(7) “Effect of Changes on Arbitration,” you may not use the Resonate Service anymore. Because the Resonate Service is evolving over time we may change or discontinue all or any part of the Resonate Service, at any time and without notice, at our sole discretion.
25. Force Majeure
Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.