Resolute Services Agreement

This Services Agreement governs any Diligence Statements of Work (each a “Statement of Work”) between Resolute and Client regarding the delivery of the services set forth in the applicable Statement of Work (the “Services”). The Services Agreement and Statements of Work shall be collectively referred to as the “Agreement”. Capitalized terms used and not defined herein have the definitions set forth in the applicable Statement of Work.

1.1 Statements of Work. The Agreement will be implemented through one or more Statements of Work. Any change to the terms of this Agreement within a Statement of Work will apply only to the Services described therein.

1.2 Standard of Performance.

(a)           Resolute shall exercise due care and perform the Services in a workmanlike and professional manner. Resolute warrants that the Services shall in all material respects conform to or exceed the standards generally observed in the industry for similar Services and all standards required by all laws and regulations applicable to such Services where such Services may be performed.

(b)           Resolute, at no extra cost to Client, shall use commercially reasonable efforts to make any corrections or adjustments necessary to meet the requirements of this Agreement and those set forth in any applicable Statement of Work as soon as practicable following discovery or written notice of any such deficiency. Upon Resolute’s discovery of any failure to meet the requirements of this Agreement or any applicable Statement of Work, Resolute shall give prompt telephonic or written notice (email sufficing) to the individuals designated by Client, which shall include a description of the deficiency and expected remediation timeline with respect to the affected Services.

1.3 Cooperation. Client acknowledges that the Services require the reasonable cooperation of Client, as requested by Resolute from time to time. Client’s failure to timely perform any of its obligations under this Agreement, or provide any requested cooperation, approval or consent will relieve Resolute of its dependent obligations to the full extent of such Client delay.

1.4 Non-Exclusive Engagement. Client acknowledges that Resolute may undertake and perform the Services for third parties, including competitors of Client, during the term of this Agreement.

1.5 Changes in Services. (a) Client may order changes in the Services consisting of additions, deletions or modifications, with any pricing for such Services being adjusted and agreed between Resolute and Client pursuant to an updated Statement of Work executed between Resolute and Client and (b) all provisions of the Agreement shall apply to any changes, omissions or extra work or service in the same manner and to the extent as if the additional service had originally been contracted for.

2.1 Confidentiality Obligations. During the term of this Agreement, from time to time, either party may disclose (the “Disclosing Party”) or make available to the other party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, technology, products or services in connection with this Agreement that is marked or otherwise identified as “confidential” or “proprietary” at the time of disclosure or disclosed in such a manner or of such a nature that a reasonable person would understand such information to be confidential or proprietary, including Customer Sensitive Data (defined below) (“Confidential Information”). Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use consistent with those contained herein) without first obtaining the Disclosing Party’s prior written consent.  Upon request by the Disclosing Party, the Receiving Party will return to the Disclosing Party or destroy any Confidential Information.

2.2 Confidentiality Exclusions. Confidential Information will not include any information that: (a) is or becomes generally known in the industry, through no act or omission on the part of the Receiving Party; (b) was previously known by the Receiving Party without restriction; (c) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation; or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party.

2.3 Required Disclosures. Nothing herein will prevent the Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party will, to the extent legally permitted, use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.

2.4 Ownership. All Confidential Information shall remain the exclusive property of the Disclosing Party. Recipient will not retain any copies of the Disclosing Party’s Confidential Information however, (a) the Recipient shall be permitted to retain copies of the Disclosing Party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes, and (b) neither party will be required to search archived electronic back-up files of its computer systems for the other party’s Confidential Information in order to purge the other party’s Confidential Information from its archived files; provided further, that any Confidential Information so retained will (i) remain subject to the obligations and restrictions contained in this Agreement, (ii) be maintained in accordance with the retaining party’s document retention policies and procedures, and (iii) the retaining Party will not use the retained Confidential Information for any other purpose. The requirements of this section apply to all Confidential Information regardless of format, including without limitation printed, magnetic, electronic or other format.

3.1 Privacy Laws. Resolute acknowledges that the Client may be subject to certain privacy and information security laws and regulations (collectively, the “Privacy Laws”), pursuant to which the Client is required to ensure that Resolute appropriately safeguards all non-public, personally identifiable information, including, but not limited to, personal or financial information regarding the Client’s former, current or prospective clients, customers or employees (“Customer Sensitive Data”) that is provided or made available to Resolute pursuant to this Agreement.

3.2 Disclosure of Customer Sensitive Data. Resolute agrees that it will not disclose or use any Customer Sensitive Data except (a) to the extent necessary to perform Services and carry out its obligations under this Agreement and/or any Statement of Work and for no other purpose; or (b) as may be required by valid operation of law.

3.3 Security Measures.

(a)           Resolute has and will maintain adequate administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of Customer Sensitive Data; (ii) protect against any anticipated threats or hazards to the security or integrity of Customer Sensitive Data; and (iii) protect against unauthorized acquisition of, access to or use of Customer Sensitive Data which could result in a “breach” as that term is defined under applicable Privacy Laws, or substantial harm to the Client, any Client employee or customer, or any individual about whom the Client has or collects financial and other information.

(b)           Upon Client’s reasonable written request, Resolute shall provide Client with information regarding Resolute’s privacy and information security systems, policies and procedures relating to Resolute’s compliance with this Agreement and applicable Privacy Laws which include: (i) access controls on information systems, including controls to authenticate and permit access only to authorized individuals and controls to prevent employees from providing Customer Sensitive Data to unauthorized individuals who may seek to obtain this information through fraudulent means; (ii) access restrictions at physical locations containing Customer Sensitive Data, such as buildings, computer facilities, and records storage facilities to permit access only to authorized individuals; (iii) procedures designed to ensure that information system modifications are consistent with the information security measures; (iv) dual control procedures, segregation of duties, and employee background checks for employees with responsibilities for or access to Customer Sensitive Data; (v) monitoring systems and procedures to detect actual and attempted attacks on or intrusions into information systems; (vi) response programs that specify actions to be taken when Resolute detects unauthorized access to information systems, including immediate reports to Client; (vii) training staff to implement the information security measures and (viii) regular testing of key controls, systems and procedures of the information security measures by independent third parties or staff independent of those that develop or maintain the security measures.

3.4 Data Breach. In the event of any actual or apparent unauthorized use or disclosure of any Customer Sensitive Data, Resolute, at its sole cost and expense, will use its best efforts to investigate and correct the causes and remediate the results thereof, and as soon as practicable following discovery of any such event, provide the Client notice thereof, and such further information and assistance as may be requested.

Resolute shall comply with all applicable federal, state and local laws, regulations and ordinances as they relate to this Agreement and the Services delivered hereunder, and shall obtain and maintain in force all permits and licenses necessary to enable Resolute to lawfully perform the Services required under this Agreement.

The parties are independent contractors under this Agreement, and nothing herein or in the activities contemplated by the parties hereunder shall be deemed to create any agency, partnership, employment or joint venture relationship between the parties.

Resolute may engage subcontractors in connection with the performance of the Services, and Resolute shall be responsible for such subcontractor’s performance for the purpose of this Agreement. Before any Services are performed by such subcontractor, Resolute will have entered into a written contract with the subcontractor that limits the subcontractor’s use and disclosure of Client’s Confidential Information, including any Customer Sensitive Data, to the purposes for which subcontractor received it as authorized under this Agreement, and requires the subcontractor to adhere to the confidentiality and information security requirements of this Agreement.  All subcontractors and employees are required to sign confidentiality agreements.

7.1 Resolute shall purchase at its own expense and maintain at all times during the term of this Agreement the following insurance coverage in such amounts as provided for herein or as required by law, whichever is higher:

(a)           Worker’s Compensation Insurance covering employees in accordance with statutory requirements applicable to the place where services are to be performed. Resolute shall also carry and maintain Employer’s Liability Insurance to the extent included under the Worker’s Compensation Insurance policy, but in no circumstances less than $1 million coverage per occurrence.

(b)           Comprehensive General Liability and Property Damage Insurance, including Premises, Operations, Personal Injury, Fire, Legal Liability and Contractual Liability coverage, in the amount not less than $1 million per occurrence and $2 million general aggregate, combined single limits for bodily injury and property damage liability.

(c)           Professional Errors and Omissions Insurance in an amount not less than $1 million per occurrence.

8.1 Fees and Payment Terms. Client agrees to pay Resolute all fees and expenses in the amounts and at the times specified in the applicable Statement of Work (the “Fees”). Except as otherwise set forth in a Statement of Work, all amounts due hereunder will be due upon receipt of an invoice by Client (in U.S. dollars). If payment is over thirty (30) days late, Client shall be responsible for a late fee of 1.5% per month of the overdue invoice amount.

9.1 Term of Agreement. This Agreement will commence on the Effective Date and, unless earlier terminated as provided herein, will continue for the Initial Term specified in the applicable Statement of Work, which term will automatically renew for successive terms of equal length, unless Client notifies Resolute of its intent not to renew this Agreement at least ninety (60) days prior to the end of the applicable term (the “Renewal Notice Period”).

9.2 Termination. Resolute may terminate this Agreement for convenience upon sixty (60) days’ prior written notice. This Agreement may also be terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within sixty (60) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.  Termination of this Agreement will terminate all outstanding Statements of Work, provided that termination of any Statement of Work will not terminate this Agreement.

9.3 Effects of Termination. Upon any expiration or termination of any Statement of Work or this Agreement, all corresponding rights, obligations and licenses of the parties will cease, except that: (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) will survive; and (b) the provisions of Sections 2 (Confidentiality), 8 (Payments), 10 (Indemnification), 10.4 (Limitation of Liability), 11 (General Provisions) and this Section 3 will survive.

10.1 Resolute. Resolute will indemnify, defend and hold Client harmless from liability to unaffiliated third parties resulting from its gross negligence, willful misconduct or fraud. The foregoing states the entire liability of Resolute, and Client’s exclusive remedy, with respect to any actual or alleged violations of the terms of this Agreement (subject to the provisions of Section 1.2). Resolute will have no liability or obligation hereunder with respect to any liability in respect of: (a) any use of the Services not strictly in accordance with this Agreement or in a manner or environment for which it was not designed or contemplated; (b) any portion of the Services that implements Client’s requirements; or (c) any data, information and other materials that are either (i) submitted by or on behalf of Client in connection with the Services or collected by Resolute on behalf of Client, or (ii) provided by Client to Resolute specifically for use by Resolute in the course of the Services (“Client Data”).

10.2 Client. Client will indemnify, defend and hold Resolute harmless from liability to unaffiliated third parties resulting from resulting from claims excluded under Section 10.1, and Resolute’s authorized use of any Client Data.

10.3 Procedures. Any claim for indemnification hereunder is contingent upon the indemnified party providing: (a) prompt written notice of the liability; (b) reasonable cooperation, information and assistance in connection therewith; and (c) the indemnifying party with the sole control and authority to defend, settle or compromise such liability, provided that the indemnified party may participate in such defense at its sole cost. The indemnifying party will not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).  The indemnifying party will not be liable for any settlement made without its prior written consent.

10.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL THE CLIENT BE LIABLE TO RESOLUTE, OR RESOLUTE TO THE CLIENT UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, THIRD PARTY CLAIMS FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF CUSTOMERS, DAMAGE TO REPUTATION OR GOODWILL OR ANY OTHER LEGAL THEORY, EVEN IF ­­­­­­IT WAS SPECIFICALLY ADVISED ABOUT THE POSSIBILITY OF SUCH LOSSES OR DAMAGES

11.1 Entire Agreement. This Agreement (including the Statements of Work) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, vendor form, invoices, policies, confirmation or similar form, even if signed by the parties hereafter, will have no effect under this Agreement.  In the event of any conflict between the terms of this Services Agreement and the terms of any Statement of Work, the terms of this Services Agreement will control unless otherwise explicitly set forth in a Statement of Work.  No modification, consent or waiver under the Agreement will be effective unless in writing and signed by both parties.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.  If any provision of the Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.

11.2 Governing Law. This Agreement shall be interpreted and enforced according to the laws of the State of New York, without regard to its choice of law principles that would cause the application of the law of any other jurisdiction other than the State of New York. The parties hereby irrevocably consent to the exclusive jurisdiction of the courts of the State of New York (or federal courts sitting in the State of New York) for the purposes of adjudicating any matter arising from or in connection with this Agreement.  Resolute also waives any right to object to such venue on the basis of forum non conveniens or otherwise.

11.3 Remedies. Each party agrees that, in the event of any breach or threatened breach of Section 2 (Confidentiality), the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party will be entitled to seek injunctive and other equitable remedies in any competent court to prevent or restrain such breach or threatened breach, without the necessity of posting any bond or other surety.

11.4 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective physical or e-mail addresses stated herein or at such other address designated by written notice in accordance with this Section 11.4. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

11.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, epidemic or pandemic, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance will be excused or extended for the period of delay or inability to perform due to such occurrence.

11.6 Publicity. Client hereby grants to Resolute a non-exclusive, royalty-free, limited license to use Client’s name, logo and trademark(s) (collectively “Trademarks”) on Resolute’s website and in other marketing materials to identify Client as a customer, provided that Resolute will: (a) only use Trademarks in the form and manner and in accordance with the quality standards and usage guidelines that Client specifically prescribes; and (b) immediately cease all use of the Trademarks upon termination of this Agreement for any reason.

11.7 Assignment. Client may not assign or delegate this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without prior written consent of Resolute, which consent may not unreasonably be withheld; provided, however, that Client may assign its rights and benefits and delegate its duties and obligations to an affiliate or to a transferee of all or substantially all of the assets or common stock of Client.

Client has entered into this Agreement with Resolute in reliance on the specific qualifications of Resolute to provide the Services contemplated hereunder; therefore, Resolute may not assign this Agreement or any of its rights or obligations hereunder without prior written consent of Client, which consent may not unreasonably be withheld; provided, however, that Resolute may assign its rights and benefits and delegate its duties and obligations to an affiliate or to a transferee of all or substantially all of the assets or common stock of Resolute.