Thanks for using RealTheory’s Cloud Products! These RealTheory Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our RealTheory Cloud Products. As applicable to the specific Cloud Product, if you are being invited or added to a Cloud Product set up by a RealTheory customer, the User Terms governs your access and use of the Cloud Product (and not these Terms).
These Terms are between you and RealTheory (“RealTheory”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not register for an account or use any portion of the RealTheory.io site or RealTheory Cloud Products or any of its Services. PLEASE NOTE THAT IF YOU SIGN UP FOR A REALTHEORY CLOUD PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR REGISTRATION FOR AN ACCOUNT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
These Terms are effective as of the date you first register for an account, access, use, or subscribe to the RealTheory Cloud Product or by clicking “Create New Account” for access to the RealTheory Cloud Product, whichever is earlier, is (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “Create New Account” or “I agree” (or similar button or checkbox) at the time you register for a RealTheory Cloud Product, create a RealTheory Cloud Product account, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable Non-Charge Product.
1. What these Terms cover.
2. How RealTheory Cloud Products are administered.
2.1. Administrators. Through the RealTheory Cloud Products, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of RealTheory Cloud Products and End User Accounts. This may include making Orders for RealTheory Cloud Products; creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Customer Data by End Users or others. Without limiting Section 2.2 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the RealTheory Cloud Products for you.
2.2. Responsibility for End Users. Our RealTheory Cloud Products have various user onboarding flows. Some RealTheory Cloud Products require users to be designated by Administrators; some allow users to sign up for individual accounts which can become associated with teams or organizations at a later time; and some may allow users to invite other users. You are responsible for understanding the settings and controls for each RealTheory Cloud Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access a RealTheory Cloud Product, then we are only required to provide the RealTheory Cloud Products to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the RealTheory Cloud Products. Some RealTheory Cloud Products may allow you to designate different types of End Users, in which case pricing and functionality may vary according to the type of End User. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Customer Data, even if those End Users are not from your organization or domain. You are responsible for all fees incurred from you or your End Users use of RealTheory Cloud Products regardless of the results obtained, the quality of the resulting actions, or whether a computing job or a suggested cost saving or performance improving recommendation runs successfully or delivers the results you expect. For clarity, RealTheory is not responsible for the outcome of suggested recommendations regardless of recommendation type, such as cost savings, performance tuning, governance, security, compliance, or health related recommendations or whether you or your End Users perform the recommended actions as intended. You are solely responsible for monitoring the status of your computing jobs and overall performance and any incurred costs of running your applications. We are not responsible for any data loss, data corruption, or increased cost that occurs as part of your execution of recommendations or performance or cost improvements executed by your End Users or by the RealTheory Cloud Products on behalf of you or your End Users. We may display our User Terms to End Users at sign up, account creation, Cloud Product registration, or in-product. If you use single sign-on (SSO) for identity management of your Cloud Product(s) such that End Users will bypass these screens and our User Terms, you are responsible for displaying our User Terms to End Users and for any damages resulting from your failure to do so.
2.3. Credentials. You must require that all End Users keep their user IDs and passwords for the RealTheory Cloud Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
2.4. Age Requirement for End Users. The RealTheory Cloud Products are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all End Users are at least 16 years old.
3. What's included in your RealTheory Cloud Product subscriptions; what are the restrictions.
3.1. Access to RealTheory Cloud Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the RealTheory Cloud Products for your own business purposes or organizational use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the RealTheory Cloud Products, to download and use the collector associated with the RealTheory Cloud Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support. During the Subscription Term, we will provide Support for the RealTheory Cloud Products in accordance with our Support Policy, and the applicable Order. RealTheory reserves the right to update the Support Policy as necessary from time to time and such updates will be notified in accordance to this agreement.
3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the RealTheory Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the RealTheory Cloud Products to a third party; (c) use the RealTheory Cloud Products for the benefit of any third party; (d) incorporate any RealTheory Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the RealTheory Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any RealTheory Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any RealTheory Cloud Product; (h) use the RealTheory Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the RealTheory Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1. Security and Certifications. Without limiting Section 14 or your obligations under this agreement, we will implement reasonable and appropriate measures designed to help secure Customer Data against accidental or unlawful loss, access or disclosure.
4.4. Subpoenas. Nothing in these Terms prevents us from disclosing Customer Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so.
4.5. GDPR Data Processing Addendum. If you are subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you can request the RealTheory Data Processing Addendum by contacting Legal@RealTheory.io.
5. Terms that apply to Data.
5.1. Using Customer Data to provide Cloud Products to You. Use of the RealTheory Cloud Products may depend on your transmission of certain data such as collecting and storing certain information for the Services you are monitoring, including CPU utilization, data transfer, disk usage, virtual machine image(s); software packages; system, equipment, and application configuration, processes and performance; network configurations, communications and dependencies; relationships between the foregoing; and information about and activity by your systems, services, users, and End Users. You retain all rights and ownership in electronic data and information uploaded or transmitted to the RealTheory Cloud Products by or on your behalf, including by the collector or as defined by RealTheory documentation (“Customer Data”). We do not claim any ownership rights in your Customer Data. You grant to us, and our affiliates, a limited, non-exclusive, worldwide, royalty-free right to access, collect, host, use, process, copy, store, transmit, display and create derivative works of Customer Data, in each case solely to the extent necessary to provide the applicable RealTheory Cloud Products to you and to manage and continuously improve our products and services for all of the RealTheory customers. You understand that the RealTheory Cloud Products use some aspects of the Customer Data to train and improve our artificial intelligence, machine learning algorithms, and analytical processes that are used in the RealTheory Cloud Products and that this use of Customer Data is done so in an anonymous and normalized manner that helps improve the predictability, intelligence, and overall use of the RealTheory Cloud Products for you and any other customers that use the RealTheory Cloud Products and you understand that our potential use of Customer Data in this manner is included in the rights provided from you to us in this Section 5 and any intelligence or product performance gained is not traceable to any single customers Customer Data and you accept this reality and approve use of your Customer Data in this manner.
5.2. Customer Data Compliance Obligations. You and your use of RealTheory Cloud Products (including use by your End Users) must comply at all times with these Terms, the RealTheory Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all of your Customer Data to the RealTheory Cloud Products and to grant the rights granted to us in these Terms and (ii) Customer Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Customer Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for your Customer Data, and you are solely responsible for your Customer Data and the consequences of submitting and using it with the RealTheory Cloud Products.
5.3. No Prohibited Sensitive Personal Information. You will not submit and will not allow your End Users to the RealTheory Cloud Products (or use the RealTheory Cloud Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable RealTheory Cloud Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.
5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) any claims or disputes brought by your End Users arising out of their use of RealTheory Cloud Products, (ii) your breach (or alleged breach) of Sections 5.2 (Customer Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the RealTheory Cloud Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive, we may (1) remove your Customer Data from the RealTheory Cloud Products or (2) suspend your access to the RealTheory Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the RealTheory Cloud Product or other users, we may suspend your access or remove your Customer Data immediately without notice. We have no liability to you for removing or deleting your Customer Data from or suspending your access to any RealTheory Cloud Products as described in this Section 5.5.
6. Using third-party products with the RealTheory Cloud Products.
6.1. Third-Party Products. You (including your End Users) may choose to use or procure other third party products or services in connection with the RealTheory Cloud Products, including Third Party applications or implementation, customization, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of your Customer Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the RealTheory Cloud Products, we will allow the third party providers to access or use Customer Data as required for the interoperation of their products and services with the RealTheory Cloud Products. This may include transmitting, transferring, modifying or deleting Customer Data, or storing Customer Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Customer Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of your Customer Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use your Customer Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
7. Billing, renewals, and payment.
7.1. Monthly and Annual Plans. Except for No-Charge Products, all RealTheory Cloud Products are offered either on a monthly subscription basis or an annual subscription basis. Any free trial, No-Charge Product or other promotion that provides you with free access to RealTheory Cloud Products must be used within the specified time of the trial. At the end of the trial period, your use of such RealTheory Cloud Product will expire and any further use of such RealTheory Cloud Products is prohibited unless you pay the applicable fees. You may increase your use of RealTheory Cloud Products by either placing a new Order or modifying an existing Order through the subscription and account controls of the RealTheory Cloud Products. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term. You are responsible for paying the fees for use by you and your End Users of the RealTheory Cloud Products associated with your RealTheory account, including per user fees and consumption based fees. In connection with RealTheory Cloud Products, we may launch or add additional supported Services or capacity or we may terminate or remove those Services or capacity based on conditions you set. You are responsible for the separate fees you accrue for such Services. You are responsible for all fees incurred from your use of RealTheory Cloud Products regardless of the results obtained or the quality or timeliness of the results. Except for No-Charge Products, charges for RealTheory Cloud Products will accrue as soon as you begin using RealTheory Cloud Products.
7.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the RealTheory Cloud Products or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable RealTheory Cloud Product continuing to be offered and will be charged at the then-current rates.
7.3. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. Other than as expressly set forth in Section 16 (IP Indemnification) or Section 20 (Changes to these Terms), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable. You agree to pay all applicable Fees without any requirement for RealTheory to provide a purchase order number on RealTheory's invoice (or otherwise). All fees are due immediately at the beginning of the new subscription cycle. Customers with Enterprise agreements, all payments are due within thirty (30) days from the date of invoice. All payments not made within such thirty (30) day period shall be Delinquent Payments. Late fees shall accrue on all Delinquent Payments at the lesser of (i) 1.5% per month, or (ii) the maximum rate allowed under law. If Delinquent Payments are not made within fifteen (15) days of written notice to you, RealTheory may, in its sole discretion, immediately terminate the applicable Orders, and you and your End User’s access to the applicable RealTheory Cloud Products with no further liability to you and your End Users.
7.4. Delivery. We will deliver the login instructions for RealTheory Cloud Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
8. Taxes not included.
8.1. Taxes. Your fees under these Terms exclude any taxes or duties payable in respect of the RealTheory Cloud Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
8.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
9. No contingencies on other products of future functionality. You acknowledge that the RealTheory Cloud Products referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of RealTheory Cloud Products are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any RealTheory Cloud Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
10. Evaluations, trials, and betas. We may offer certain RealTheory Cloud Products to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 10, the terms and conditions of these Terms governing RealTheory Cloud Products, including Section 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta RealTheory Cloud Products, and any pre-release and beta features within generally available RealTheory Cloud Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available RealTheory Cloud Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US $100.00.
11. IP Rights in the RealTheory Cloud Products and Feedback. RealTheory Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the RealTheory Cloud Products). From time to time, you or your End Users may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
12. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information, product roadmap, technical designs, or unique problem solving relating to the RealTheory Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 12. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
13. Term and Termination.
13.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
13.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
13.3. Termination for Inactivity. We reserve the right to terminate access to the RealTheory Cloud Products upon 30 days advance notice if, for a period of 60 days (i) Customer has not accessed the Admin Console or has had no network activity.
13.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all RealTheory Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to your Customer Data (and we may delete all of your Customer Data (unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure you retrieve your Customer Data prior to termination of RealTheory Cloud Products during the applicable Subscription Term. After the effective date of termination, you will pay any unpaid fees covering the remainder of the then-current Subscription Term. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
13.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 7.3 (Payment), 8 (Taxes not included), 10 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 11 (IP Rights in the RealTheory Cloud Products and Feedback), 12 (Confidentiality), 13 (Term and Termination), 14.2 (Warranty Disclaimer), 15 (Limitations of Liability), 16 (IP Indemnification) (but solely with respect to claims arising from your use of RealTheory Cloud Products during the Subscription Term), 18 (Dispute Resolution) and 22 (General Provisions).
14 Warranties and Disclaimer.
14.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
14.2. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 14, ALL REALTHEORY CLOUD PRODUCTS, AND SUPPORT ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE REALTHEORY CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE REALTHEORY CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE REALTHEORY CLOUD PRODUCTS OR FOLLOWING THE RECOMMENDATIONS PROVIDED BY THE REALTHEORY CLOUD PRODUCTS. NO ADVICE, RECOMMENDATIONS, INFORMATION, WHETHER ORAL OR WRITTEN, OR SYSTEM GENERATED THAT IS OBTAINED BY YOU IN CONNECTION WITH YOUR USE OF THE REALTHEORY CLOUD PRODUCTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
15. Limitation of Liability.
15.1. Consequential Damages Waiver. NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
15.2. Liability Cap. EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE DURING THE LAST PAYMENT PERIOD (I.E. YOUR SUBSCRIPTION TERM, NOT TO EXCEED 12 MONTHS) IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
15.3. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 15 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
16. IP Indemnification. We will defend you against any claim brought against you by a third party alleging that the RealTheory Cloud Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the RealTheory Cloud Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the RealTheory Cloud Product in accordance with these Terms; (ii) substitute a substantially functionally similar RealTheory Cloud Product; or (iii) terminate your right to continue using the RealTheory Cloud Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a RealTheory Cloud Product in the twelve (12) month period immediately preceding the Claim is less than US$150,000; (2) if the RealTheory Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the RealTheory Cloud Product is used in combination with any non-RealTheory product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of RealTheory Cloud Products; (5) to any Claim arising as a result of (y) your Customer Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the RealTheory Cloud Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 16 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY REALTHEORY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
17. Publicity Rights. We may identify you as a RealTheory customer in our promotional materials. We will promptly stop doing so upon your request sent to CustomerSuccess@RealTheory.io.
18. Dispute Resolution.
18.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
18.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Georgia, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Atlanta, Georgia, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Atlanta, Georgia, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
18.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 18.1 (Informal Resolution) and 18.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
19. Export Restrictions. The RealTheory Cloud Products are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the RealTheory Cloud Products (or any part thereof). You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the RealTheory Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of your Customer Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the RealTheory Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
20. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 22.1 (Notices) or by posting the modified Terms on our website or within our Services. Together with notice, we will specify the effective date of the modifications.
20.1. No-Charge Products**.** You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
20.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected RealTheory Cloud Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
20.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
20.4. Community Forums. Your RealTheory Cloud Products account may provide you access to the RealTheory Cloud Products Community Forums and other public areas on the RealTheory Cloud Products (collectively, the “Forums”). By accessing the Forums, you acknowledge that you are solely liable and responsible for how you and your End Users use the Forums, as well as any damages that may result from the disclosure of your User Content. You also acknowledge that it is possible that you will be exposed to User Content from others that you may consider offensive, indecent, or otherwise objectionable. Views expressed on the Forums do not necessarily reflect RealTheory’s views. RealTheory does not endorse User Content posted by you or others. Certain User Content from others may be incorrectly labeled, rated, or categorized. Your use of the Forums is subject to our Community Guidelines hosted at the respective Community Forum.
20.5. License to Your User Content in Forums. You grant RealTheory and participants in the Forums a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, prepare derivative works of, reproduce, modify, adapt, publicly perform, and publicly display, User Content (in whole or in part) for the purposes of operating and providing the Services to you. Please remember that other users may search for, see, use, modify and reproduce any of your User Content that you submit to any Forum or other “public” areas of the RealTheory Cloud Products, and we are not responsible for keeping it confidential. You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not RealTheory, are responsible for all of your User Content.
20.6. No Obligation to Pre-Screen User Content. You acknowledge that RealTheory has no obligation to pre-screen any information, data, text, software, source code, music, sound, photographs, video, messages, tags or other materials submitted by you or other users (“User Content”) posted or otherwise made available by users and accessible through the RealTheory Cloud Products (“RealTheory Cloud Products Content”), although we reserve the right in our sole discretion to pre-screen, refuse or remove any User Content. By entering into the Terms, you provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of you User Content and that we reserve the right to remove any User Content that violates the Terms or is otherwise objectionable. In the event that we pre-screen, refuse or remove any User Content, you acknowledge that we will do so for our benefit, not yours.
20.7. User Content Storage. Unless expressly agreed by RealTheory Cloud Products in writing elsewhere, we have no obligation to store any of your User Content that you or your End Users upload, post, email, transmit or otherwise make available on or through the RealTheory Cloud Products. We have no responsibility or liability for the deletion or accuracy of any User Content, including the failure to store, transmit or receive transmission of your User Content; or the security, privacy, storage or transmission of other communications originating with or involving use of the RealTheory Cloud Products.
21. Changes to the RealTheory Cloud Products. You acknowledge that the RealTheory Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the RealTheory Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide RealTheory Cloud Products under existing Orders, we can discontinue any RealTheory Cloud Products, or any portion or feature of any RealTheory Cloud Products for any reason at any time without liability to you.
22. General Provisions.
22.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by certified USPS to RealTheory, Inc., (Atlanta Financial Center) 3343 Peachtree Rd NE Ste. 145-544, Atlanta GA 30326, Attn: General Counsel. Your notices to us will be deemed given upon certified receipt.
22.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Force Majeure is further defined where the RealTheory Services was unavailable due to an incident that was not within the control of RealTheory including unavailability caused by acts of God, acts of government, insurrection, war, riot, global health emergency, disease outbreak, explosion, nuclear incident, fire, flood, earthquake, global pandemic, unavailability of telecommunications and internet service due to the general unavailability of telecommunication or internet service provider’s systems or other catastrophic events beyond the reasonable control of RealTheory.
22.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
22.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the RealTheory Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the RealTheory Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
22.5. Conflicts. In event of any conflict between the main body of these Terms and Our Policies, Our Policies (as applicable) will control with respect to their subject matter.
22.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 20 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
22.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
22.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
23. Definitions. Certain capitalized terms are defined in this Section 23, and others are defined contextually in these Terms.
“Administrators” mean the personnel designated by you who administer the RealTheory Cloud Products to End Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Customer Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to RealTheory Cloud Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Customer Data to or through the RealTheory Cloud Products.
“Documentation” means our standard published documentation for the RealTheory Cloud Products, currently located here.
“End User” means an individual you or an Affiliate permits or invites to use the RealTheory Cloud Products. For the avoidance of doubt - (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a RealTheory Cloud Product as your customer are also considered End Users.
“End User Account” means an account established by you or an End User to enable the End User to use or access a RealTheory Cloud Product.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the RealTheory Cloud Products and Support.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for a RealTheory Cloud Product account or otherwise sign up for a RealTheory Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Order” means RealTheory’s applicable online order page(s), flows, in-product screens or other RealTheory-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the RealTheory Cloud Products, (ii) the number of End Users, Subscription Term, domain(s) associated with your use of RealTheory Cloud Products, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include No-Charge Products.
“Our Technology” means the RealTheory Cloud Products and Services (including all No-Charge Products), their user experiences, their “look and feel”, design, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“PO” means a purchase order.
“RealTheory Cloud Products” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software, such as our collector, that we provide as part of the RealTheory Cloud Products.
“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Subscription Term” means your permitted subscription period for a RealTheory Cloud Product, as set forth in the applicable Order.
“Support” means support for the RealTheory Cloud Products, as further described in the Support Policy. Your Support level will be specified in the applicable Order.
“Your Materials” means your materials, systems, personnel or other resources.
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