Resitrader, Inc. (“Resitrader”, "us", "we", or "our") welcomes visitors to the Resitrader website located at http://www.resitrader.com (the "Site"), and to our various training and production environments utilizing other registered web sites including versions for demonstration, training and full Resitrader technology platform usage. Please read these Terms before using the Site or any of the Resitrader technology platform sites. A copy of these Terms may be downloaded, saved, and printed for your reference.
To the extent of any express inconsistency between these Terms and any other agreement you may have with Resitrader for Services or otherwise, that other agreement shall prevail unless otherwise explicitly stated therein. If these Terms refer or relate to a clause that is not part of that other agreement, then these terms shall apply therein.
1. ACCEPTANCE OF AGREEMENT.
The following capitalized terms shall have the following meanings whenever used in these TOU.
3.1. “ Agreement” refers to any legal agreement executed between Resitrader or Participant, in either paper or electronic format.
3.2. “ Participant” means any user of Resitrader technology as defined under section 3.6 below;
3.3. “ Participant Data” means data in electronic form inputted into or collected through the Platform by or from Participant, including without limitation by Participant’s Users.
3.4. “ Participant Loan” means any and all information relating to a loan uploaded by any User to the Platform.
3.5. “ Participation Agreement” or “PA” refers to an agreement as executed between Participant and Resitrader.
3.6. “ Documentation” means the User Guides, Pricing Summary and other support materials that Resitrader has made or may make available in the future, as posted at www.resitrader.com.
3.8. “ Platform” means Resitrader’s online mortgage loan trading technology Platform.
3.10. “ User” means any individual who uses the Platform on Participant’s behalf, and any individual who uses the Platform on behalf of other Resitrader Participants.
4. THE PLATFORM.
4.1. Use of the Platform. During the Term of any Agreement, Resitrader grants Participant a non-exclusive, non-transferable, non-sublicensable license to access and use the Platform pursuant to this TOU.
4.2. Authorized Access. Participant shall not allow access to or use of the Platform by anyone other than an employee of Participant who has been registered to access and use the Platform on Participant’s behalf and assigned a unique username-password combination. At no time will Participant provide persons who are not employees of Participant any information regarding access to the Platform, including usernames or passwords. Participant assumes full responsibility for the protection of usernames and passwords assigned to Participant’s Users, and agrees to restrict access of this information to those individuals employed by Participant who have a bona fide need to know this information to perform the duties of their role or function within the Participant’s organization.
4.3. Restrictions. Except as set forth in these TOU, Participant will not: (a) interfere with or disrupt the Platform or attempt to gain access to any systems or networks that connect to the Platform (except as required to access and use the Platform and then only in accordance with Resitrader’s policies posted on its Website); (b) reproduce or distribute the Platform or any portion thereof (including, without limitation, any documentation, training materials or screenshots); (c) use or authorize use of the Platform for any purpose not specified in these TOU; (d) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Platform or access thereto; (e) modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Platform or any portion thereof (including, without limitation, any documentation, training materials or screenshots); and (f) attempt to do any of the foregoing.
4.4. Enforcement. Resitrader may suspend or terminate Participant’s or any Participant User’s access to the Platform upon notice to Participant in the event that Resitrader reasonably determines in its sole discretion that any Participant User has violated the terms and conditions of these TOU. Participant shall be liable for any violation of the terms and conditions of these TOU by any Participant User.
4.5. Service Levels. Resitrader shall provide access to the Platform according to the service levels provided for in the service level agreement set forth in Exhibit A (the “ SLA”) and shall provide the remedies listed in the SLA for any failure of the Platform to meet the service levels therein. Such remedies are Participant’s sole and exclusive remedy for any failure of the Platform to meet the service levels described therein, and Participant recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA are forfeited upon termination of these TOU. Resitrader is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of these TOU.
4.6. Documentation. Participant may reproduce and use the Documentation solely as permitted by the terms and conditions of these TOU and as necessary to use the Platform.
4.7. Platform Revisions. Resitrader may revise Platform features and functions or the SLA at any time, including without limitation, by removing such features and functions or reducing service levels. If any such revision to the Platform materially reduces features or functionality provided pursuant to these TOU, Participant may, within 30 days of notice of the revision, terminate these TOU provided Resitrader does not remedy such material reduction within the 30 days. Revisions to the SLA shall not go into effect until at least 45 days after Resitrader posts the revision and so informs Participant.
5. PLATFORM FEES AND PAYMENT TERMS.
5.1. Monthly Access Fee. Resitrader will charge Participant a monthly access fee for use of the Platform as described in the Participation Agreement.
5.2. Loan Transaction Fees. Resitrader will charge Participant fees associated with loan activity as described in the Participation Agreement.
5.3. Professional Services. Resitrader will charge Participant fees associated with requests made by Participant for Resitrader to provide Participant with customization of the Platform and such other services as Resitrader may choose to make available as Professional Services. Such fees shall be outlined in a Statement of Work (“ SOW”) provided to Participant after each request. Any Professional Services to be performed at non-Resitrader locations will be provided at a mutually agreed time and location and Participant will reimburse Resitrader for its reasonable, preapproved, travel-related expenses incurred in connection with such Professional Services.
5.4. Cancellation Charges. In the event Participant cancels or terminates any SOW for any reason prior to completion of the SOW, then, without limitation of Resitrader’s other rights and remedies, Participant shall pay to Resitrader an amount equivalent to the dollar value of all Professional Services hours expended by Resitrader in connection with such SOW through the date of such cancellation or termination at the rate designated in the SOW.
5.5. Vendor Services Fees. Resitrader may and will charge Participant’s vendors fees associated with orders for vendor services as requested by Participant within or through the Platform. The vendors, and not Participant, will be responsible for payment of any such vendor fees.
5.6. Payment Terms. All fees charged to Participant are due and payable within 30 days from the date of the invoice, and Resitrader shall have the right to limit and/or terminate service to Participant for unpaid invoices and/or chronic late or short payment. Any amounts not paid within such 30 days shall be subject to a late penalty fee of 1.5% interest per month or, if lower, the highest rate permitted by applicable law, from the applicable due date until the overdue amount is paid. Participant expressly understands and agrees that it shall be responsible for any and all costs of collection incurred following any late payment, including legal fees and related expenses.
5.7. Changes to Fees. Resitrader may change fees set forth in the Participation Agreement at any time, with 30 days prior written notice from Resitrader to Participant, such notice to be provided to Participant in e-mail form and in printed form to the electronic address on file within the Participant’s profile in the Platform at the time of the notification. Such change in fees will be deemed accepted and become effective 30 days after such notice (the “ Fee Change Date”) unless Participant gives Resitrader written notice of rejection of the change 5 days prior to the Fee Change Date. In the event of such rejection, the ParticipationAgreement will terminate on the Fee Change Date. It is the Participant’s affirmative duty to ensure that Resitrader is notified of any changes to Participant’s legal address, principal place of business, and the name, title and contact information of the appropriate officers of the Participant for the receipt of such notification, and that Participant further updates such information electronically in the Participant’s profile within the Platform.
5.8. Taxes. Participant will be responsible for and will pay when due all sales, use and other taxes and similar charges based on or arising from these TOU or its performance, other than taxes based on Resitrader’s net income.
6. ANTI-FISHING PROVISIONS.
6.1. Intent to Trade. Any and all Participant Loans loaded by Participant onto the Platform shall be so loaded with the intent to fully complete and consummate any trading activity associated with such Participant Loans on the Platform. Participant shall pay Resitrader all fees due pursuant to Section 5 for any trading activity related to a Participant Loan, whether such activity occurs on or off the Platform.
6.2. Restriction on Use. Participant shall not collect or save information related to other Users or any Participant Loan for the purpose of trading loans outside the Platform. Any attempt by Participant to circumvent the Platform and/or any applicable fee or restriction, may result, at Resitrader’s sole discretion and without limitation or in lieu of any other rights and remedies available to Resitrader at law or equity, in immediate termination of Participant’s access to the Platform. Moreover, and without limitation or in lieu of any other rights and remedies available to Resitrader at law or equity, in the event Participant trades loans outside of the Platform that have been loaded to the Platform, or otherwise conducts activity outside of the Platform on such loans where such activity would result in fees coming due to Resitrader, Participant shall owe amounts to Resitrader equivalent to the applicable fees that otherwise would have come due had such activity been conducted on the Platform.
6.3. False Loan Data. To the Participant’s knowledge, all data associated with Participant Loans is factually correct. Participant shall not use falsified Participant Loans for the purposes of attracting or soliciting business or trades from other Users. If Resitrader determines, at its sole discretion, that Participant has provided false loan data on the Platform, Resitrader may immediately terminate these TOU and Participant’s access to the Platform.
7. TRADING PARTNER APPROVAL AND TRADING RISK.
7.1. Resitrader Hold Harmless. Participant agrees and acknowledges that any and all risk associated with interacting with other Users or legal entities participating on the Platform (commonly known as “Counterparty Risk”) is assumed by Participant, and Participant agrees to hold Resitrader harmless from any disputes between Participant and other Platform Users and/or participants associated with trading activity.
7.2. Trading Partner Approval. Participant agrees and acknowledges that Participant will maintain and control its trading relationships on the Platform, including decisions to approve, disapprove, or trade with other Platform Users. Furthermore, Participant agrees and acknowledges that Resitrader will not maintain or control Participant’s trading relationships on the Platform and is not and will not be a participant in any decision whatsoever to approve or disapprove Platform Users and/or whether Participant should trade with Platform Users.
7.3. Trading Risk. Participant acknowledges that trading mortgage loans on the Platform may result in various financial risks to Participant, and Participant further acknowledges that such trading risks are the sole responsibility of Participant.
8. PARTICIPANT DATA & PRIVACY.
8.1. Participant Data. Participant grants to Resitrader a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, copy and distribute the Participant Data and Participant Loans that Participant uploads to the Platform. Participant is solely responsible for the Participant Data and Participant Loans that it uploads to the Platform. Participant represents and warrants that it owns or has all rights that are necessary to upload the Participant Data and Participant Loans, and that the provision of the Participant Data and Participant Loans will not infringe, misappropriate or violate a third party’s intellectual property rights or result in the violation of any applicable law or regulation.
8.2. Use of Participant Data. Unless it receives Participant’s prior written consent, Resitrader: (a) shall not access, process, or otherwise use Participant Data other than as necessary to provide and/or facilitate the Platform; and (b) shall not intentionally grant any third party access to Participant Data, including without limitation, Resitrader’s other Participants, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Resitrader may disclose Participant Data as required by applicable law or by proper legal or governmental authority. Resitrader shall give Participant prompt notice of any such legal or governmental demand and reasonably cooperate with Participant in any effort to seek a protective order or otherwise to contest such required disclosure, at Participant’s sole expense.
8.4. Risk of Exposure. Participant recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Participant assumes such risks. Resitrader offers no representation, warranty, or guarantee that Participant Data will not be exposed or disclosed through errors or the actions of Participant or third parties.
8.5. Data Accuracy. Resitrader shall have no responsibility or liability for the accuracy of data uploaded to the Platform by Users, including without limitation Participant Data or Participant Loans loaded onto the Platform. THE PARTICIPANT DATA AND PARTICIPANT LOANS PROVIDED ON THE PLATFORM ARE PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND.
8.6. Data Deletion. Resitrader may permanently erase Participant Data if Participant’s account is delinquent, suspended, or terminated for 30 days or more.
8.7. Aggregate & Anonymized Data. Notwithstanding anything to the contrary set forth herein, Resitrader may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion (“ Aggregate Data” refers to Participant Data with the following removed: personally identifiable information including the names and street addresses of Participant and any of its Users or Participants). Resitrader owns all right, title, and interest in and to the Aggregate Data.
9. RESPONSIBILITIES & RESTRICTIONS.
9.1. Acceptable Use. Participant shall comply with the TOU, and Participant shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. In the event that it suspects any breach of the requirements of this Section 9.1, including without limitation by Users, Resitrader may suspend Participant’s access to the Platform without advanced notice, in addition to such other remedies as Resitrader may have. These TOU does not require that Resitrader take any action against Participant or any User or other third party for violating this Section 9.1, or these TOU, but Resitrader is free to take any such action it deems appropriate.
9.2. Unauthorized Access. Each party shall take commercially reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its respective passwords and other log-in information. Participant shall notify Resitrader immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach, including fully cooperating with Resitrader if requested. Resitrader shall notify Participant immediately of any known or suspected unauthorized use of the Platform or breach of its security that may reasonably impact Participant and/or Participant Data and shall use best efforts to stop said breach, including reasonably cooperating with Participant if requested.
9.3. Technology Export. Participant shall not: (a) permit any third party to access or use the Platform in violation of any law or regulation; or (b) export any software provided by Resitrader or otherwise remove it from the United States except in compliance with all applicable laws and regulations. Without limiting the generality of the foregoing, Participant shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
9.4. Compliance with Laws. In connection with these TOU, both parties shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Participant Data.
9.5. Users & Platform Access. Participant shall be responsible and liable for: (a) the actions of any Participant User on the Platform, including without limitation unauthorized User conduct and any User conduct that would violate the TOU or the requirements of these TOU applicable to Participant; and (b) any use of the Platform through Participant’s account, whether authorized or unauthorized.
10. IP & FEEDBACK.
10.1. IP Rights to the Platform. Resitrader retains all right, title, and interest in and to the Platform, and all intellectual property rights therein or relating thereto, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. These TOU does not grant Participant any intellectual property license or rights in or to the Platform or any of its components. Unless otherwise set forth in an applicable SOW, Resitrader owns all right, title, and interest in and to the results of any services performed pursuant to such SOW, and all intellectual property rights therein. Participant recognizes that the Platform and its components are protected by copyright and other laws.
10.2. Feedback. Resitrader has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Participant or Users provide to Resitrader, and nothing in these TOU or in the parties’ dealings arising out of or related to these TOU will restrict Resitrader’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Participant or the User in question (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Resitrader’s products or services, including but not limited to the Platform).
11. CONFIDENTIAL INFORMATION.
Each party (a “ Receiving Party”) understands that the other party (the “ Disclosing Party”) may disclose information of a confidential nature including, without limitation, the Platform, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“ Confidential Information”). The terms and conditions of these TOU also constitute the Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes, other than the use (by Participant) or provision (by Resitrader) of the Platform and/or the services contemplated by these TOU, any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of these TOU, upon the request of a Disclosing Party, the Receiving Party agrees to return to the Disclosing Party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.
11.1. Injunction. Each party agrees that a breach of this Section 11 would cause the other party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
11.2. Termination & Return. With respect to each item of Confidential Information, the obligations of this Section 11 will terminate 2 years after the date of disclosure. Upon termination of these TOU, each party shall return all copies of Confidential Information to the other party or certify, in writing, the destruction thereof.
11.3. Retention of Rights. These TOU does not transfer ownership of Confidential Information or grant a license thereto. Each party will retain all right, title, and interest in and to its own Confidential Information.
12. REPRESENTATIONS & WARRANTIES.
12.1. From Resitrader. Resitrader represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in these TOU without the further consent of any third party. Resitrader’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by Resitrader. In the event of a breach of the warranty in this Section 12.1, Resitrader, at its own expense, will promptly take the following actions: (a) secure for Participant the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Participant any prepaid fees for such features, in proportion to the portion of the Term left after such termination.
12.2. From Participant.
(a) Participant represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under these TOU and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by these TOU; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
(b) Participant acknowledges and agrees that except for Resitrader’s obligations regarding proper operation of the Platform as expressly set out herein, Participant is solely responsible for safeguarding Participant Data and data related to Participant Loans. Participant is solely responsible for backup and restoration of Participant Data and data related to Participant Loans. Resitrader is not responsible for the accuracy and/or completion of Participant Data and data related to Participant Loans.
(c) Participant acknowledges and agrees that Resitrader merely provides technological tools that vendors, brokers, agents, lenders, buyers, sellers, investors, conduits and securitizers may use to transact business on the Platform. Resitrader is not involved in the actual transaction between buyers, agents, lenders, service providers, asset managers, brokers, vendors, sellers, investors, conduits and/or securitizers, and does not approve, endorse or select, is not the agent of, nor has any authority on behalf of, any of the aforementioned parties or any other third party, for any purpose whatsoever. Resitrader cannot guarantee that any transactions through the Platform will be completed. Resitrader further makes no representations or guaranties regarding any services offered through the Platform.
(d) Participant acknowledges and agrees that Resitrader does not and cannot control the flow of data to or from the Platform and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inaction of such third parties can impair or disrupt Participant’s connections to the Internet (or portions thereof). Although Resitrader will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Resitrader cannot guarantee that such events will not occur. Accordingly, Resitrader disclaims any and all liability resulting from or related to such events.
12.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY RESITRADER IN THESE TOU AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RESITRADER MAKES NO REPRESENTATIONS OR WARRANTIES. RESITRADER EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM IS MADE AVAILABLE TO PARTICIPANT "AS IS." RESITRADER DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM AND/OR RESITRADER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, THAT PARTICIPANT DATA WILL REMAIN PRIVATE OR SECURE, OR THAT THE PLATFORM AND RESITRADER SERVICES OR THE SERVER THAT MAKES THE PLATFORM AND RESITRADER SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADDITIONALLY, RESITRADER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY USER AND/OR THIRD PARTY ON OR THROUGH THE PLATFORM OR ANY WEB SITE LINKED TO FROM THE PLATFORM. WITHOUT LIMITATION OF THE FOREGOING, RESITRADER WILL HAVE NO LIABILITY FOR: (A) ANY ERRORS, MISTAKES, OR INACCURACIES OF ANY DATA; (B) THE APPLICATION OF ANY PARTICIPANT BUSINESS RULE, PROCESS, INSTRUCTION OR SPECIFICATION; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM; (D) ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY PARTICIPANT IN THE PLATFORM; (E) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE PLATFORM; (F) INDEMNIFICATION OR DEFENSE OF PARTICIPANT OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL; (G) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE PLATFORM BY ANY USER AND/OR THIRD PARTY; OR (H) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA OR INFORMATION POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE PLATFORM. TO THE EXTENT THAT RESITRADER CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
13.1. By Resitrader. Resitrader shall indemnify, defend and hold harmless Participant and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “ Participant Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “ Losses”) incurred by or imposed upon the Participant Parties in connection with any 3rd party claim, suit, action, demand or judgment (each, a “3 rd Party Claim”) (a) that the Platform, as made available by Resitrader and to the extent used in accordance with these TOU and all applicable Resitrader policies posted on its Website, infringes or violates a third-party’s intellectual property right in the United States or (b) alleging any fact that, if true, would constitute a breach by Resitrader of any representation, warranty or covenant made by it under Section 12.1. Notwithstanding the foregoing, Resitrader will have no obligation to indemnify Participant under subsection (a) to the extent that the 3rd Party Claim arises from (i) any aspect of the Platform, including any customization, that was developed specifically for the benefit or at the request of Participant or to implement a Participant business process, requirement or specification, or (ii) any use of the Platform in combination with any software, hardware or other component not provided to Participant by Resitrader hereunder (each, an “ Excluded Claim”). Participant will (x) provide Resitrader with prompt notice of any indemnifiable 3rd Party Claim (provided that the failure to provide prompt notice shall only relieve Resitrader of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (y) permit Resitrader to assume and control the defense of such action upon Resitrader’s written notice to Participant of Resitrader’s intention to indemnify; and (z) upon Resitrader’s written request, and at no expense to Participant, provide to Resitrader all available information and assistance reasonably necessary for Resitrader to defend such claim. Resitrader will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Participant Party, without Participant’s prior written consent.
13.1.1. Right to Ameliorate Damages. If a Participant Party seeks indemnity under Section 11.1 for a 3rd Party Claim for infringement of intellectual property rights, or if, in Resitrader’s reasonable opinion, such a 3rd Party Claim is likely to be asserted against Participant or Resitrader, Resitrader may, in its sole discretion and at its sole expense and without limiting any of its obligations under Section 11.1: (a) obtain the right for Participant to continue to use the Platform; (b) render the Platform non-infringing; (c) provide a non-infringing substitute with substantially the same features, functions and performance; or (d) if (a)-(c) are not reasonably obtainable in the exercise of commercially reasonable efforts, Resitrader may terminate these TOU upon notice to Participant without further liability or obligation hereunder.
13.2. By Participant. Participant shall indemnify, defend and hold harmless Resitrader and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “ Resitrader Parties”) against any Losses incurred by or imposed upon the Resitrader Parties or any of them in connection with any 3rd Party Claim (a) arising from or relating to Participant’s or Participant’s contractors use of the Platform (excluding indemnifiable 3rd Party Claims under Section
13.1); (b) that would be an Excluded Claim under Section 13.1 had it been asserted against a Participant Party; or (c) alleging any fact, which, if true, would constitute a breach by Participant of any representation, warranty or covenant made by it under Section 12.2. Resitrader will (x) provide Participant with prompt notice of any such 3rd Party Claim (provided that the failure to provide prompt notice shall only relieve Participant of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (y) permit Participant to assume and control the defense of such action upon Participant’s written notice to Resitrader of Participant’s intention to indemnify; and (z) upon Participant’s written request, and at no expense to Resitrader, provide to Participant all available information and assistance reasonably necessary for Participant to defend such claim. Participant will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Resitrader Party, without Resitrader’s prior written consent.
14. LIMITATIONS & LIABILITIES.
14.1. Dollar Cap. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TOU WILL NOT EXCEED THE LESSER OF (i) THE AMOUNTS PAID TO RESITRADER BY PARTICIPANT IN THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE; OR (ii) $100,000.00.
14.2. Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TOU.
14.3. Exceptions from Exclusions and Limitations. Nothing in these TOU shall exclude or limit either party’s liability for: (a) breaches of Section 11 (Confidential Information); (b) breaches of a party’s indemnification obligations under Section 13 (Indemnification) or any amounts paid or payable to third parties in connection with such obligations; or (c) such party’s gross negligence, willful misconduct or abandonment of these TOU. Nothing in these TOU shall exclude or limit Participant’s liability for a breach of Section 9 (Responsibility & Restrictions).
15.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Each party agrees that none of its employees or contractors will be an employee or contractor of the other party.
15.2 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of these TOU to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
15.3 Assignment & Successors. These TOU shall be binding on the parties and their respective successors and assigns. These TOU and the rights and obligations hereunder may not be assigned by either party without the prior written consent of the other party, except that such consent shall not be required in the event of (a) a recapitalization, reorganization, reincorporation or similar corporate event by either party, or (b) a merger or acquisition of either party pursuant to which all of the stock or all or substantially all of the assets of such party is acquired by another party, which party agrees to assume the rights and obligations of the acquired party under these TOU. Any assignment in violation of the foregoing will be null and void.
15.4 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these TOU invalid or otherwise unenforceable in any respect. In the event that a provision of these TOU is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these TOU will continue in full force and effect.
15.5 No Waiver. Neither party will be deemed to have waived any of its rights under these TOU by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these TOU will constitute a waiver of any other breach of these TOU.
15.6 Choice of Law & Jurisdiction. These TOU will be governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATING TO THESE TOU OR THE SUBJECT MATTER HEREOF.
15.7 Construction. These TOU will not be construed in favor of or against either party by reason of authorship.
15.9 Headings; Counterparts. Headings are for convenience only and are not deemed to be part of these TOU. These TOU may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement. The parties agree to accept a digital image of these TOU, as executed, as a true and correct original and admissible as best evidence to the extent permitted by a court with proper jurisdiction.
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) sets forth the parties’ agreement with respect to the service levels required in order to support the Resitrader Platform under the Agreement. All terms not defined in the SLA shall have the meanings set forth in the Agreement.
1.1. “Actual Uptime Percentage” means the percentage of the Totaled Scheduled Availability (taking into account any Excused Downtime) that the Platform is actually available for access, calculated as follows:
(Total Scheduled Availability – Downtime) / (Total Scheduled Availability – Excused Downtime) X 100 = Actual Uptime Percentage
1.2. “Downtime” means any time during the Scheduled Availability Period that the Platform is not available for access in any given month.
1.3. “Excused Downtime” means any Downtime that: (i) occurs during an Excused Maintenance Period or (ii) is caused by: (A) Participant’s or its Users’ telecommunications and Internet services, (B) software or hardware not provided and controlled by Resitrader (including third-party software or sites that are accessed or linked through the services), or (C) Force Majeure Events within the meaning of Section 14.2 of the Agreement.
1.4. “Excused Maintenance Period” means any time period during which Resitrader performs unscheduled maintenance on the services or Platform, provided that Resitrader has furnished Participant with at least 2 hours advance notice thereof.
1.5. “Scheduled Availability Period” mean the regularly scheduled time periods during which the Platform is available for access, as specified below:
Day Availability (Pacific Time)
Monday 5:00 a.m. 7:00 p.m.
Tuesday 5:00 a.m. 7:00 p.m.
Wednesday 5:00 a.m. 7:00 p.m.
Thursday 5:00 a.m. 7:00 p.m.
Friday 5:00 a.m. 7:00 p.m.
Saturday 5:00 a.m. 5:00 p.m.
Sunday None (intermittent)
Monday 5:00 a.m. 7:00 p.m.
Tuesday 5:00 a.m. 7:00 p.m.
Wednesday 5:00 a.m. 7:00 p.m.
Thursday 5:00 a.m. 7:00 p.m.
Friday 5:00 a.m. 7:00 p.m.
Saturday 5:00 a.m. 5:00 p.m.
Sunday None (intermittent)
1.6. “Total Scheduled Availability” means the total number of minutes in the Scheduled Availability Period for a given month.
2. Service Levels
2.1. Uptime Guarantee. Resitrader will use commercially reasonable efforts to ensure the Actual Uptime Percentage is equal to at least 99% over any calendar month as measured by Resitrader (“Uptime Guarantee”).
2.2. Service Availability Credits. If, after the Effective Date, the Actual Uptime Percentage in 2 consecutive months is lower than the Uptime Guarantee for such applicable period, Resitrader will provide Participant a credit of one hour of Professional Services for each hour the Uptime Guarantee differs from the Actual Uptime Percentage for that period. Any credits provided pursuant to this Exhibit B will constitute Resitrader’s sole liability and Participant’s sole and exclusive remedy for any failure to achieve any Uptime Guarantee.