DEALPATH TERMS OF SERVICE
Last updated on August 29, 2019
These Terms of Service (the “Terms”), together with all Order Forms (as defined below), govern Customer’s use of Dealpath Inc. (“Dealpath”)’s proprietary cloud-based collaboration and workflow platform for real estate investment professionals accessible via Dealpath’s website located at www.dealpath.com (the “Site”) and related services, unless Dealpath and Customer (as defined below) have entered into a separate written agreement.
1.1 “Authorized User” means an employee or contractor of Customer that has: (i) been assigned a unique username-password combination to access and use the Services; and (ii) registered to access and use the Services.
1.2 “Customer” means the company or other legal entity identified as customer in the applicable Order Form.
1.3 “Customer Data” means all data and information input or submitted by Customer or Authorized Users into the Services.
1.4 “Fees” means the fees described in the applicable Order Form.
1.5 “Implementation Services” means the services performed by Dealpath to configure and rollout the Services to Customer and Authorized Users, as described in the applicable Order Form.
1.6 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.7 “Order Form” means an order form executed by Dealpath and Customer referencing these Terms. Each Order Form shall be deemed incorporated by reference into these Terms upon mutual execution.
1.8 “Order Form Initial Term” means the initial term of an Order Form as set forth therein.
1.9 “Order Form Renewal Period” means the renewal period of an Order Form as set forth therein.
1.10 “Order Form Term” means, with respect to an Order Form, the Order Form Initial Term together with any Order Form Renewal Periods.
1.11 “Service Level Agreement” means service level agreement set forth in Exhibit A.
1.12 “Services” means Dealpath’s proprietary cloud-based collaboration and workflow platform for real estate investment professionals as described in the applicable Order Form.
2.1 Services. Dealpath will provide the Services to Customer in accordance with these Terms, including the Service Level Agreement, and the applicable Order Form. Dealpath hereby grants Customer a non-exclusive and worldwide license to access and use the Services during the Order Form Term solely for Customer’s business purposes and such access and use is expressly limited to the number of Authorized Users for which Customer has paid the applicable Fees. During the Order Form Initial Term or any Order Form Renewal Period, as applicable, Customer may add additional Authorized Users for the Order Form Initial Term or Order Form Renewal Period, as applicable, at the then agreed upon prices as described in the relevant Order Form. Upon each Order Form Renewal Period, subject to written notice at least thirty (30) days prior to the start of an Order Form Renewal Period, Customer may decrease its number of Authorized Users and the applicable Fees will be adjusted accordingly.
2.2 Implementation Services. If an Order Form includes Implementation Services, Dealpath will provide the Implementation Services to Customer in accordance with these Terms and the applicable Order Form.
2.3 Restrictions. Customer shall not interfere with or disrupt the Site or the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services as permitted under these Terms). Customer shall not allow access to or use of the Site or Services by anyone other than Authorized Users. Customer shall not: (a) copy, modify or distribute any portion of the Site or Services; (b) rent, lease, or provide access to the Site or Services on a time-share or service bureau basis; or (c) transfer any of its rights hereunder except as set forth in Section 12.8.
2.4 Acceptable Use Policies. Customer acknowledges and agrees that Dealpath does not monitor or police communications or data transmitted through the Site or Services and that Dealpath shall not be responsible for the content of any such communications or transmissions. Customer and its Authorized Users shall use the Site or Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer and its Authorized Users shall not use the Site or Services to transmit any bulk unsolicited commercial communications. Customer shall keep confidential and not disclose to any third parties (except for Authorized Users who are employees or contractors), and shall ensure that Authorized Users keep confidential and do not disclose to any third parties (except for Authorized Users who are employees or contractors), any user identifications, account numbers and account profiles.
2.5 Data Security, Maintenance and Backup Procedures. Dealpath shall follow its standard security and archival procedures for Customer Data as set forth in Exhibit B (the “Storage and Security Measures”). In the event of any loss or corruption of Customer Data, Dealpath shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Dealpath’s third party hosted services provider. Dealpath shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. DEALPATH’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 2.5 SHALL CONSTITUTE DEALPATH’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
3. PROFESSIONAL SERVICES. If Customer requests Dealpath to perform any services that are different from or in addition to the Services or Implementation Services (“Professional Services”), and Dealpath is willing to provide such Professional Services, then the parties will mutually agree on the scope of such Professional Services by executing a specific Order Form under these Terms.
4. CUSTOMER OBLIGATIONS
4.1 Cooperation and Assistance. Customer shall at all times provide Dealpath with good faith cooperation and assistance and make available such information, facilities, Customer personnel and equipment as may be reasonably required by Dealpath in order to provide the Services, including, but not limited to, providing Customer Data, security access, information and, as necessary, software interfaces to Customer’s business applications (provided that such cooperation, assistance and resources shall be at all times subject to and in accordance with Customer’s facility, workplace, internet usage, and other internal policies, as then in effect). Additionally, Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
4.2 Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of these Terms, including, without limitation, with Customer’s obligations and the restrictions set forth in Sections 2.3 and 2.4. Customer shall promptly notify Dealpath of any reasonable suspicion or reasonably alleged material violation of the terms and conditions of these Terms by Customer or Authorized User and shall reasonably cooperate with Dealpath with respect to: (a) investigation by Dealpath of any such suspected or alleged violation of these Terms and (b) any action by Dealpath to enforce the terms and conditions of these Terms. Dealpath may suspend or terminate any Authorized User’s access to the Services upon notice to Customer in the event that Dealpath reasonably determines that such Authorized User violated these Terms or of any other agreement between Dealpath and such Authorized User pursuant to which such Authorized User is permitted to access and use the Services. Customer will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User.
4.3 Customer Data. Customer is responsible for providing all Customer Data in the appropriate format and the means by which the Customer Data was acquired, and for obtaining any necessary rights and licenses to use the Customer Data. Dealpath may access and use the Customer Data during the applicable Order Form Term solely as necessary to provide the Services to Customer and to identify or resolve technical problems with the Services. Customer represents and warrants that: (i) it has, and will continue to have, during the applicable Order Form Term, the legal right and authority to access, use and disclose to Dealpath any Customer Data; and (ii) neither the Customer Data, nor Customer’s use or provision of Customer Data to Dealpath through the Services, nor any use of Customer Data by Dealpath solely as contemplated in these Terms on or through the Services will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5. FEES; EXPENSES; TAXES
5.1 Fees. In consideration for Dealpath providing the Services and, if applicable, Implementation Services and Professional Services, Customer shall pay to Dealpath the Fees in accordance with the terms set forth in the applicable Order Form.
5.2 Invoices; Payment; Late Payment. Unless otherwise set forth in an Order Form, Dealpath shall invoice Customer annually for all Fees and applicable Taxes (as defined in Section 5.3), and including any related interest and/or penalties, due in that period. Each invoice is due and payable thirty (30) days following Customer’s receipt of a duly issued invoice. If Dealpath has not received payment within thirty (30) days after the due date and Customer has not reasonably disputed an invoice, interest shall accrue on such undisputed past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by applicable law, calculated from the date such amount was due until the date that payment is received by Dealpath.
5.3 Taxes. All Fees and other amounts stated or referred to in these Terms are exclusive of all taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from Customer’s use of the Services, other than any taxes based on Dealpath’s income, provided that Dealpath shall include in each Statement of Work (or similar document, if applicable) and invoice, an estimate of such Taxes.
6. PROPRIETARY RIGHTS.
6.1 Services and Data. Dealpath shall own and retain all right, title and interest in and to: (a) the Services, and all improvements, enhancements or modifications thereto made by or on behalf of Dealpath; (b) any software, applications, inventions or other technology developed by or on behalf of Dealpath in connection with providing Implementation Services or Professional Services; and (c) all Intellectual Property Rights related to any of the foregoing. Customer shall own and retain all right, title and interest in and to the Customer Data; provided that Dealpath may collect, generate, process and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, including without limitation learnings, analytics, algorithms, data and other information derived therefrom (collectively, “Usage Data”); provided that such Usage Data shall not incorporate any Customer Data and shall be in an aggregated and de-identified form. Subject to Customer’s rights in the Customer Data Dealpath shall own all right, title and interest in and to Usage Data, and all Intellectual Property Rights therein. Dealpath agrees that it will not use Usage Data for the benefit of a third party in a manner that would permit reverse engineering of Usage Data such that Customer (or its Authorized Users) can be identified as the source of such data.
6.2 Feedback. To the extent that Customer provides to Dealpath any feedback, comments and suggestions for improvements to the Services (“Feedback”), Customer grants Dealpath a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all Intellectual Property Rights that Customer owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
6.3 DMCA/Copyright Policy. Dealpath respects copyright law and expects Customer to do the same. It is Dealpath’s policy to terminate in appropriate circumstances access to the Services to customers (and its authorized users) who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Dealpath’s Copyright Policy at https://www.dealpath.com/copyright, for further information.
7.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, and regardless of the circumstances and manner of disclosure, Customer Data is considered to be Confidential Information of Customer, and the Services are Dealpath’s Confidential Information.
7.2 Exclusions. The obligations and restrictions set forth in Section 7.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who, after due inquiry, has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
7.3 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except to perform its obligations and exercise its rights hereunder, and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of these Terms; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 7. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information of like importance and in no event less than a reasonable standard of care. The provisions of this Section 7.3 will remain in effect for a period of three (3) years after the expiration or termination of these Terms; provided that with respect to Confidential Information that is a trade secret, the provisions of this Section 7.3 will remain in effect for so long as such Confidential Information is deemed a trade secret under applicable law.
7.4 Permitted Disclosures. The provisions of this Section 7 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
8.1 Warranty for Services. Dealpath represents and warrants that the Services will meet the requirements set forth in the Service Level Agreement. Dealpath’s sole and exclusive liability and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 8.1 will be as set forth in the Service Level Agreement.
8.2 Customer Warranty. Customer represents and warrants that it has the right to grant the rights Customer grants hereunder.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, DEALPATH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE SERVICES AND DEALPATH HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DEALPATH DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEALPATH OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. Customer assumes sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. Dealpath shall have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or other information provided to Dealpath by Customer in connection with the Services or any actions taken by Dealpath at Customer’s direction. Dealpath shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Services.
9. TERM AND TERMINATION
9.1 Term. These Terms are effective as of the date on which Customer and Dealpath first enter into an Order Form and, unless earlier terminated in accordance with Section 9.2, continue until all Order Forms have expired or are terminated pursuant to these Terms and applicable Order Forms.
9.2 Termination for Cause. Either party may terminate these Terms (together with all Order Forms) upon written notice if the other party breaches any material term of these Terms and fails to correct the breach within thirty (30) days following written notice from the non-breaching specifying the breach; provided that the cure period for any default with respect to payment shall be ten (10) business days. Either party may terminate an individual Order Form upon written notice if the other party breaches any material term of such Order Form and fails to correct the breach within thirty (30) days following written notice from the non-breaching specifying the breach; provided that the cure period for any default with respect to payment shall be ten (10) business days.
9.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of each Order Form: (i) Customer’s and Authorized Users’ right to access and use the Services under such Order Form shall immediately terminate; (ii) Customer and its Authorized Users shall immediately cease all use of the Services under such Order Form; (iii) each party shall make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party (unless otherwise authorized to do so hereunder based on a separate Order Form); (iv) upon request, Dealpath shall at no additional cost cooperate in transfer of Customer Data requested by Customer, which shall be promptly delivered to Customer in either text, .xlsx or comma delineated format, or such other format reasonably requested by Customer; and (v) with respect to such Order Form, Dealpath shall, at Customer’s option and upon its written request, promptly return or destroy and erase from all systems it directly or indirectly uses or controls, (1) all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate or are based on Customer’s Confidential Information or (2) solely such specific databases or other collections or articles of Customer’s Confidential Information as Customer may request.
9.4 Effect of Termination. Upon expiration or termination of an Order Form (other than terminations pursuant to Section 9.2): (i) each Order Form that is then-in effect will remain in-effect for the duration of the then-current term of such Order Form; and (ii) the terms of these Terms will continue to apply with respect to such Order Forms until expiration of such Order Forms.
9.5 Survival. The rights and obligations of Dealpath and Customer contained in Sections 1 (Definitions), 5 (Fees, Expenses and Taxes), 6 (Proprietary Rights), 7 (Confidentiality), 9.3 (Rights and Obligations Upon Expiration or Termination), 9.5 (Survival), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General) shall survive any expiration or termination of these Terms and Order Forms.
10.1 Indemnification by Dealpath. Dealpath shall defend (or settle), indemnify and hold harmless Customer, its officers, directors and employees (collectively, “Customer Indemnitees”), from and against any court costs, reasonable attorneys’ fees, damages and liabilities awarded in final judgment against Customer Indemnitees, and amounts agreed to in settlement, with respect to each of the foregoing, to the extent arising from any third-party claim or suit against Customer Indemnitees that the Services, as provided by Dealpath to Customer pursuant to these Terms, infringe, misappropriate, or otherwise violate any Intellectual Property Right of any third party. Dealpath’s obligations under this Section 10.1 are contingent upon: (a) Customer providing Dealpath with prompt written notice of such claim (provided that any delay that does not materially prejudice Dealpath’s ability to defend the claim will not relieve Dealpath of its indemnification obligations); (b) Customer providing reasonable cooperation to Dealpath, at Dealpath’s expense, in the defense and settlement of such claim; and (c) Dealpath having sole authority to defend or settle such claim.
10.2 Injunctions. If Customer’s use of the Services is, or in Dealpath’s opinion is likely to be, enjoined due to the type of claim specified in Section 10.1, then Dealpath may at its sole option and expense: (i) replace or modify the Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Services under the terms of these Terms; or (iii) if Dealpath is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate Customer’s rights and Dealpath’s obligation under these Terms with respect to such Services and refund to Customer a pro-rata portion of the Fees paid for the remaining portion of the Order Form Initial Term or Order Form Renewal Period during which Customer would have had access to the Services.
10.3 Exclusions. Notwithstanding the terms of Section 10.1, Dealpath will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Services with equipment, devices, software or data (including without limitation Customer Data) not supplied by Dealpath, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s or an Authorized User’s use of the Services other than in accordance with these Terms.
10.4 Sole Remedy. THE FOREGOING STATES DEALPATH AND ITS LICENSORS SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
10.5 Indemnification by Customer. Customer shall defend (or settle), indemnify and hold harmless Dealpath, its officers, directors and employees (collectively, “Dealpath Indemnitees”), from and against any court costs, reasonable attorneys’ fees, damages and liabilities awarded in final judgment against Dealpath Indemnitees, and amounts agreed to in settlement, with respect to each of the foregoing, to the extent arising from any third-party claim or suit based on: (i) a breach by Customer of the warranty set forth in Section 8.2 or any allegation that, if true, would be a breach of Section 8.2, or (ii) Customer’s or an Authorized User’s use of the Services to the extent such use was not in accordance with these Terms including but not limited to a claim that the Customer Data or Customer’s use of the Services not in accordance with these Terms infringes or misappropriates any Intellectual Property Rights of a third party. Customer’s obligations under this Section 10.5 are contingent upon: (a) Dealpath providing Customer with prompt written notice of such claim (provided that any delay that does not materially prejudice Customer’s ability to defend the claim will not relieve Customer of its indemnification obligations); (b) Dealpath providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
11. LIMITATION OF LIABILITY.
11.1 Exclusion of Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 2.3, 2.4 OR SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
11.2 Total Liability. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS, EXCEPT WITH RESPECT TO BREACH OF SECTION 7 AND FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS IN SECTION 10, NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY AND ANY THIRD PARTY ABOUT THESE TERMS OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
11.3 Basis of Bargain. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 11 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEALPATH AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
12.1 Governing Law. These Terms and all matters arising out of or relating to these Terms shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to these Terms shall be brought exclusively in the state or federal courts located in San Francisco, California. Dealpath and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
12.2 Waiver. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver.
12.3 Notices. Dealpath may give notice to Customer by means of a general notice through the Services interface, email to Customer’s e-mail address on record with Dealpath, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Dealpath. Customer may give notice to Dealpath by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Dealpath, Inc., 300 California Street, Ste 200, San Francisco, CA 94104. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
12.4 Severability. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms shall remain in full force and effect.
12.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance. Notwithstanding the foregoing, in the event Dealpath is unable to properly perform due to a Force Majeure Event for a period of ten (10) business days or longer, Customer may immediately terminate these Terms upon written notice.
12.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
12.7 Relationship Between the Parties. Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
12.8 Assignment. Neither Party may assign or transfer these Terms, in whole or in part, without the other party’s prior written consent; provided that either party may assign these Terms without the other party’s prior written consent to a successor entity in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets to which these Terms relate. Any attempted assignment or transfer without such consent will be null and of no effect. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
12.9 Entire Agreement. These Terms (together with all Order Forms) constitute the complete and exclusive agreement between the parties concerning its subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms. These Terms may not be modified or amended except in a writing signed by a duly authorized representative of Dealpath and Customer. If there is any inconsistency between the provisions of these Terms and the terms in any Order Form, these Terms shall prevail.
12.10 Non-Exclusive Remedies. Except as set forth in Sections 2.5, 8.1 and 10.4, the exercise by either party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
12.11 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of these Terms may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
12.12 No Third-Party Beneficiaries. These Terms are intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to these Terms may enforce them.
12.13 Headings. The headings in these Terms are for the convenience of reference only and have no legal effect.
LIST OF EXHIBITS
EXHIBIT A – SERVICE LEVEL AGREEMENT
EXHIBIT B – DATA SECURITY, MAINTENANCE AND BACKUP PROCEDURES
SERVICE LEVEL AGREEMENT
- Service Availability.
The Services under each Order Form shall be available to Customer with 99.90% platform uptime, measured monthly, excluding Planned Downtime, and emergency maintenance.
- Service Availability Calculation.
The percentage of Services under each Order Form availability will be calculated as follows:
- Planned Downtime.
(a) Planned Downtime. “Planned Downtime” occurs when Customer or Authorized Users have no access to the Services under an Order Form due to scheduled maintenance.
(b) Scheduled Maintenance. Dealpath will use commercially reasonable efforts to undertake all necessary maintenance in a manner that mitigates impact to Customer and its users and to notify Customer of the required maintenance. Dealpath will use commercially reasonable efforts to provide twenty-four (24) hours’ prior notice for scheduled maintenance not to exceed six (6) hours. Notice provided under this Section will be via email.
- Technical Support
(a) Hours of Support. Dealpath will respond to problems with the Services experienced by Customer or its Authorized Users in accordance with this Section 4. Dealpath will provide coverage parameters specific to the service(s) covered in these Terms as follows:
- Telephone support: Dealpath will designate a dedicated account manager who will provide phone support to Customer during normal business hours on weekdays during the hours of 9:00 a.m. – 5:00 p.m. Pacific Time with the exclusion of Federal Holidays. Dealpath will use commercially reasonable efforts to respond to all support requests within 1 business day.
(b) Problem Severity Level Definitions. Problems reported by Customer to Dealpath support will be assigned a Severity Level in accordance with the following:
|Impact Severity Levels|
|Severity 1||Critical Failure – actual failure of Service where the Service is unavailable to the Customer.|
|Severity 2||Major Degradation – Critical problem causing loss of data or loss of service to a core Service functionality. Services are functioning but in a significantly reduced capacity, may affect multiple users.|
|Severity 3||Minor Service/Application Degradation – does not affect core Service functionality.|
(c) Problem Response Times. Dealpath will use commercially reasonable efforts to meet or exceed the target response and problem resolution times for each Severity Level as set forth in the following:
|Severity Level||Response Time Objective||Restoration Resolution Objective||Customer Update Frequency|
|1||4 Hours||24 hours to resolve or provide work around||Daily|
|2||4 Hours||3 Business Days to resolve or provide work around||Daily|
|3||1 Day||20 Business Days to resolve or provide work around||Weekly|
(*) “Business Days” are defined as non-weekend and non-US holiday days.
- Service Level Credits
(a) Any downtime resulting from outages of third party connections or utilities or other reasons beyond Dealpath’s control will be excluded from any calculation of downtime. Customer’s sole and exclusive remedy, and Dealpath’s entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one hour, Dealpath will credit Customer 5% of Fees due for the Services for the month in question under the applicable Order Form for each period of 30 or more consecutive minutes of downtime for the Services under such Order Form; provided that no more than one such credit will accrue per day. If the Fees for the Services are paid on an annual basis, the downtime credit will be calculated based on one-twelfth (1/12th) of the annual Fees. Downtime shall begin to accrue at the earliest of (i) as soon as Customer (with notice to Dealpath) recognizes that downtime is taking place, or (ii) Dealpath otherwise becomes aware that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Dealpath in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Fees under the applicable Order Form in any one (1) calendar month in any event. Dealpath will only apply a credit to the month in which the incident occurred, or, if the Fees for the Services are paid on an annual basis, Dealpath will credit the downtime credit at the end of the applicable annual period. Dealpath’s blocking of data communications or other portions of the Services in accordance with its policies shall not be deemed to be a failure of Dealpath to provide adequate service levels under these Terms.
DATA SECURITY, MAINTENANCE AND BACKUP PROCEDURES
- Customer’s and its Authorized Users’ Services accounts are password protected with verification and notifications through Customer’s corporate email account.
- The Services are delivered and accessible using HTTPS and secured using encrypted SSL (Secured Sockets Layer) with all data being encrypted at rest and in transit. Data will be stored on Box Platform for Enterprise and in a MySQL database on Amazon Web Services, providing secure locations, system redundancy, and threat protection & prevention.
- Customer can choose to engage Dealpath’s Professional Services at any point to request an export of all Customer Data and any other of Customer’s Services account information (such as tasks, files, comments, and deal activity logs). The requested information will be exported and delivered to the Customer contact specified in writing by Customer (email accepted) in a common file format.