Terms of Service

These RealTheory Cloud Terms of Service (these "Terms") are entered into between RealTheory, Inc. ("RealTheory", "we", or "us") and the customer that agrees to them ("Customer", "you", or "your"), and govern your access to and use of the RealTheory Cloud Products and related Support (collectively, the "Services").

You represent and warrant that: (i) the person accepting these Terms has full legal authority to bind Customer; (ii) you have read and understand these Terms; and (iii) you agree to them.

These Terms become binding on Customer on the earliest of (a) Customer’s execution of an Order that references or incorporates these Terms, or (b) Customer’s access to or use of the Services (the earliest such date, the "Effective Date").

1. What these Terms cover.

1.1. RealTheory Cloud Products. These Terms govern our RealTheory Cloud Products, and related Support (collectively, "Services"). These Terms include Our Policies (including our Privacy Policy), and your Orders. Our Privacy Policy may be found at: https://realtheory.io/legal/privacy-policy

1.2. Order–DPA–ToS Precedence. If there is any conflict or inconsistency among an Order, the Data Processing Addendum (DPA), if applicable, and these Terms, the following order of precedence will apply:

(a) the Order (with respect to pricing, fees, payment terms, quantities/scope, Service Start and Renewal dates, and any product-specific commercial terms);

(b) the DPA (with respect to processing of Personal Data); and then

(c) these Terms (for all other matters).

2. How RealTheory Cloud Products are administered.

2.1. Administrators. Through 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 solely responsible for your use, configuration, and integration of the RealTheory Cloud Products and for all fees incurred from your or your End Users’ use of the RealTheory Cloud Products, regardless of the results obtained. Your responsibility for decisions based on Platform outputs and recommendations is addressed in Section 4.4, for automation in Section 3.4, and for your environment, data, and configurations in Section 3.5; the parties’ respective liabilities and your exclusive remedies are governed by Sections 14 and 15.

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. Such User Terms shall not be binding on you, even if any End User clicks "accept" or similar language to access the system. The only binding terms governing the use of the Services shall be these Terms.

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 promptly notify us of any unauthorized use of which you become aware.

You further represent that the personnel who deploy the collector or other Services components in your environment, and any credentials, tokens, or other access grants provided to RealTheory for the operation of the Services, are authorized by you for those purposes. You are solely responsible for the issuance, scope, rotation, and revocation of such credentials and access grants.

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.

2.5. Customer Environment Resilience and Recovery. You are responsible for maintaining commercially reasonable change-management, backup, monitoring, alerting, and recovery capabilities appropriate for your environment during the Subscription Term. You acknowledge that operation of the Services (including any automation you have enabled under Section 3.4) may require recovery actions that depend on your own processes, systems, and tooling, and that restoration of your environment following any incident is your responsibility.

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, except as specifically permitted in these Terms.

3.2. Support. During the Subscription Term, we will provide Support for the RealTheory Cloud Products in accordance with our Support Policy, which can be found at: https://realtheory.io/legal/support-policy and the applicable Order. RealTheory may update the Support Policy from time to time and will provide reasonable prior notice of any material changes. Where the applicable Order references a service level agreement ("SLA"), the terms, metrics, remedies, and exclusions of such SLA are set forth in the applicable Order or in a referenced service-level schedule. Absent such a reference, no service-level commitments apply and this Section 3.2 does not create any express or implied availability, uptime, or response-time commitment.

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 (or any output derived from the RealTheory Cloud Products) to develop, train, benchmark, test, or improve a product or service that competes with the RealTheory Cloud Products (for clarity, this restriction does not create any post-termination non-compete obligation on your own business operations);

(i) publicly disseminate information regarding the performance of the RealTheory Cloud Products;

(j) publicly disclose benchmarking, testing, or performance comparisons of the RealTheory Cloud Products or any component thereof (including any comparison against any third-party product or service) without RealTheory’s prior written consent; or

(k) encourage or assist any third party to do any of the foregoing.

3.4. Automation. Automation capabilities are disabled by default. You may, at your discretion, enable any automation capability made available by the Platform and configure the scope and parameters under which it operates. Your act of enabling and configuring an automation capability constitutes your authorization and direction for the Platform to operate within the scope and parameters you have configured.

Any action taken by the Platform in connection with automation — directly or indirectly, including any implementation of a recommendation, proposal, or configured directive — is taken at your sole discretion and responsibility. Any such action taken by the Platform within the scope and parameters you have configured, and in material conformity with the Documentation, will be deemed an action taken by you for purposes of liability allocation under these Terms. To the extent an automated action materially fails to conform to the Documentation, it will not be deemed an action taken by you, and RealTheory’s responsibility for such non-conformance will be determined under Sections 14 and 15 (with gross negligence or willful misconduct remaining uncapped under Section 15.4). You are solely responsible for (a) your decision to enable any automation capability, (b) the scope and parameters you configure, and (c) all outcomes arising from Platform actions taken within your configuration that materially conform to the Documentation.

The operational characteristics of automation capabilities are described in the Documentation and may evolve over time. This Agreement governs your use of automation regardless of such evolution.

You acknowledge that operation of the Services, and any automation you enable, may result in changes to your cloud-provider resource consumption, which may increase or decrease your third-party cloud-provider charges depending on your configuration and operational objectives (which may include reliability, performance, availability, cost, or other factors). All such cloud-provider charges are between you and your cloud provider, and you are solely responsible for them.

3.5. Shared Responsibility. The Services operate under a shared-responsibility model. RealTheory is responsible for operating the RealTheory Cloud Products in accordance with these Terms, including the warranty and exclusive remedies set forth in Section 14. You are responsible for your environment, your data, your configurations, your personnel, the credentials and access grants provided to RealTheory, your use of Platform outputs, your decisions to enable and configure automation, and the resilience and recovery of your environment. This Section 3.5 is a summary provided for convenience; it does not create any obligation, warranty, or liability beyond those expressly set forth in the referenced Sections, and in the event of any conflict the specific Sections (including Sections 3.4, 4.4, 14, and 15) control.

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.

4.2. Privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the RealTheory Cloud Products and otherwise in connection with these Terms. To the extent RealTheory processes Personal Data on behalf of Customer as a processor, such processing is governed by the RealTheory Data Processing Addendum attached as Exhibit A and incorporated into these Terms.

4.3. Improving RealTheory Cloud Products. We are always striving to improve the RealTheory Cloud Products. Subject to Sections 4.4 and 5.6, we use analytics and machine-learning techniques to better understand how the RealTheory Cloud Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

4.4. Customer Responsibility for Platform Outputs. The Platform is an AI- and analytics-driven system. Platform outputs — including recommendations, insights, analytics, benchmarks, AI-assistant responses, automation proposals, and any other outputs — may contain errors or inaccuracies. You must independently evaluate and verify Platform outputs before relying on them, and you are solely responsible for any decisions or actions taken, or not taken, in connection with or based on Platform outputs. You retain full responsibility for all prompts, data, and other information you submit to the Services, and your use of the Services must comply with the RealTheory Acceptable Use Policy. As between you and RealTheory, you own the Platform outputs generated specifically for you through your authorized use of the Services. RealTheory and its licensors retain all right, title, and interest in and to the Platform, including its models, algorithms, and underlying technology, and in and to all aggregated, de-identified, and benchmark data — none of which constitute Platform outputs owned by you. You acknowledge that due to the nature of machine learning, Platform outputs may not be unique across customers and similar inputs may generate the same or similar outputs. RealTheory uses machine learning and other analytical techniques to analyze your environment and to generate recommendations, insights, analytics, and automation for you, and such use is part of providing the Services to you under Section 5.1. RealTheory will not use your Customer Data, prompts, or Platform outputs to train or improve its machine-learning models for any purpose other than providing the Services to you — including to develop or improve models made available to other customers — except with your prior written consent. Nothing in this Section limits RealTheory’s use of aggregated, de-identified telemetry and system metrics as described in Section 5.6. RealTheory does not guarantee any specific financial, operational, performance, security, reliability, or other outcomes from your use of the Services or from any Platform output, recommendation, or automation action. Where you enable an interface or connection that allows a third-party application, service, or AI agent to access Platform outputs or Customer Data, such access is governed by Section 6 (Third-Party Products).

4.5. Legal Process. Nothing in these Terms prevents RealTheory from disclosing Customer Data as required by law, subpoenas, or court orders; where permitted, RealTheory will use commercially reasonable efforts to provide prior notice to Customer.

5. Terms that apply to Data.

5.1 Use of 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.

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, which is available at https://realtheory.io/legal/acceptable-use-policy and is incorporated herein by reference. 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.

5.3. No Prohibited Sensitive Personal Information. You will not submit and will not allow your End Users to submit 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 any third-party claims that any Customer Data infringes on such third party’s intellectual property rights. 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.

THIS SECTION 5.4 (YOUR INDEMNITY) STATES YOUR SOLE LIABILITY AND OUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CUSTOMER DATA.

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. RealTheory may also suspend your or an End User’s access to the Services where RealTheory reasonably determines such suspension is necessary to protect the security, integrity, availability, or performance of the Services or of other customers. 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, except to the extent caused by RealTheory’s gross negligence or willful misconduct. RealTheory will not be liable for data removals made in good faith based on available information.

5.6 Aggregated and De-Identified Operational Metrics. RealTheory may collect and process aggregated, de-identified system telemetry and performance metrics solely for the purpose of optimizing and improving the RealTheory Cloud Products. This data is limited to non-identifiable operational metrics, including but not limited to resource utilization (CPU, memory, storage, and network metrics), service performance (API response times, error rates, and latency), and system dependencies (workload interactions and scaling behavior). For avoidance of doubt, Customer Data, customer-specific configurations, business logic, and application logs are not accessed, used, or retained for AI training, and any use of Customer Data, prompts, or Platform outputs to train or improve RealTheory’s machine-learning models is governed by Section 4.4 (which requires your prior written consent). All metadata collected under this Section is processed in accordance with established technical and operational standards and is maintained in a de-identified form designed to prevent identification of Customer or any individual customer.

5.7. Customer Privacy Warranties and Indemnity. You represent and warrant that, with respect to any Customer Data, Personal Data, or other information that you or your End Users submit to or make accessible through the Services, you have (i) provided all notices required under applicable privacy or data-protection laws, (ii) obtained all consents required under such laws, and (iii) otherwise complied with such laws in all material respects. You will defend, indemnify, and hold harmless RealTheory against any third-party claim arising from your breach of the foregoing.

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. For clarity, any interface, integration, or connection that you enable to allow your or a third party’s applications, services, or AI agents to access or interact with the Services (including to retrieve Customer Data or Platform outputs) is a third-party product or service for purposes of this Section 6, and you are responsible for authorizing and configuring any such connection and for any resulting access to, transmission of, or use of Customer Data or Platform outputs by such third parties.

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 the rates described in the applicable Order, 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 begin to accrue on the Service Start Date as specified in the applicable Order.

7.2. Renewals. Unless otherwise stated in the applicable Order, your subscription will automatically renew for an additional Subscription Term equal to the then-current Subscription Term unless either party gives written notice of non-renewal at least ninety (90) days prior to the end of the then-current 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 and all payments for committed licenses and minimum consumption fees per applicable Orders will be due immediately. All renewals are subject to the applicable RealTheory Cloud Product continuing to be offered and will be charged at the then-current mutually agreed upon rates or as specified in the applicable Order.

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. Customer’s failure to issue a purchase order will not relieve Customer of its payment obligations under an executed Order, and any purchase order is for administrative convenience only and will not modify these Terms. All undisputed fees are due within thirty (30) days from the date of invoice. All payments not made for undisputed Fees within such thirty (30) day period shall be Delinquent Payments. Late fees shall accrue on all Delinquent Payments beginning ten (10) days after your receipt of a Delinquent Payment notice from us, at the lesser of (i) 1% 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 suspend you and your End User’s access to the applicable RealTheory Cloud Products with no further liability to you and your End Users, until such undisputed Fees are paid.

7.4. Delivery. We will deliver the login instructions for RealTheory Cloud Products to your account or through other reasonable means, consistent with the Service Start Date stated in the applicable Order. All deliveries under these Terms will be electronic.

7.5. Invoicing and Payment Timing. Unless the applicable Order specifies otherwise, invoice and payment due dates run from the Effective Date. If an Order grants credit terms (e.g., Net-30/Net-45), access to the Services is not conditioned on prepayment and will be provisioned in accordance with the Service Start Date stated in the Order, subject to Customer completing any required onboarding prerequisites.

7.6. Consumption Mechanics. Any usage-based fees (including measurement methodology, monthly minimum commitments, true-ups if applicable, and any ‘no retroactivity’ rules) apply only as specified in the applicable Order and its accompanying pricing schedule.

7.7. Marketplace Processing Fee. If Customer elects to remit payment for any Fees via a third-party cloud marketplace (e.g., Microsoft Azure, AWS, or Google Cloud) rather than paying RealTheory directly, such marketplace transactions may be subject to marketplace-specific fees or adjusted pricing as set forth in the applicable Order.

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, we will make such payments directly to the applicable taxing authority. 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 with reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

9. No contingencies on other products or 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 in 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. You grant RealTheory a non-exclusive, royalty-free license to use any Feedback solely for the purpose of internally operating, maintaining, and improving the Services. No Feedback will be used in a manner that identifies you or any End User. Nothing in this Section limits RealTheory’s right to independently develop, evaluate, or market products or services.

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. Any Customer Data will be deemed your Confidential Information without any marking or further designation. For the avoidance of doubt, Customer Data may be processed by RealTheory as outlined in these Terms, and such processing shall not constitute a breach of confidentiality obligations.

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 affiliates and its and their respective 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 show by competent evidence: (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 use of or reference 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. The confidentiality obligations in this Section 12 will survive for five (5) years after disclosure of the applicable Confidential Information, except that obligations with respect to trade secrets will survive for as long as the information remains a trade secret under applicable 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. 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. Provided that you are not in material breach of these Terms, for a period of thirty (30) days following the effective date of expiration or termination (the "Wind-Down Period"), RealTheory will, upon your written request, make the Services available in a read-only or export-only configuration solely to enable you to retrieve your Customer Data through RealTheory’s then-standard export mechanisms described in the Documentation. RealTheory has no obligation to retain Customer Data beyond the Wind-Down Period, and you remain responsible for retrieval during the Wind-Down Period; after the Wind-Down Period, 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 or during the Wind-Down Period). After the effective date of termination, if the termination is the result of your uncured breach, 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. If the termination of these Terms is the result of RealTheory’s uncured breach, you will receive a refund of all prepaid but unused Fees as of the effective date of the termination, on a pro-rata basis. 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.

13.4. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 4.4 (Customer Responsibility for Platform Outputs), 5.4 (Your Indemnity), 5.7 (Customer Privacy Warranties and 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), 14.3 (Warranty Disclaimer), 15 (Limitation 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. RealTheory Warranties. RealTheory represents and warrants that:

14.2.1 the Services will conform in all material respects to the applicable Documentation;

14.2.2 it will comply with all laws applicable to its provision of the Services;

14.2.3 the Services do not infringe, and RealTheory will take commercially reasonable steps to avoid infringing, the intellectual property rights of any third party; provided however that Customer’s sole and exclusive remedy, and RealTheory’s sole and exclusive liability for any breach of this Section 14.2.3 shall be RealTheory’s obligations under Section 16 below; and

14.2.4 it has obtained the necessary rights and permissions to provide its proprietary technology as described in these Terms, excluding third-party components and integrations used by the Services.

14.2.5 Documentation; Exclusive Remedy. The Documentation describes the material functionality and operational characteristics of the Services and may be updated from time to time. The Documentation is not intended to describe every non-material aspect of Platform behavior, and RealTheory will not materially reduce the core functionality of the Services during the applicable Subscription Term. The warranty in Section 14.2.1 means that the Services will perform, in all material respects, the functions described in the then-current Documentation. Customer’s sole and exclusive remedy, and RealTheory’s entire liability, for any breach of Section 14.2.1 is for RealTheory to use commercially reasonable efforts to correct the non-conformance and, failing correction within a reasonable period (taking into account the nature and severity of the non-conformance) after written notice, for Customer to terminate the affected Order and receive a pro-rata refund of prepaid, unused fees.

14.3 WARRANTY DISCLAIMER. 

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 14 AND SECTION 16 (IP INDEMNIFICATION), 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 FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16 (IP INDEMNIFICATION), WE DISCLAIM ALL WARRANTIES RELATING TO TITLE AND NON-INFRINGEMENT. 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 NOT BE RESPONSIBLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR USE OF 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. NOTHING IN THIS SECTION LIMITS ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.

15. Limitation of Liability.

15.1. Consequential Damages Waiver. 

SUBJECT TO SECTIONS 15.3 AND 15.4, 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. General Liability Cap. 

EXCEPT AS PROVIDED IN SECTIONS 15.3 AND 15.4, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO REALTHEORY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED THAT, FOR PURPOSES OF CALCULATING THIS CAP, ANY UPFRONT, LUMP-SUM, OR ANNUAL-IN-ADVANCE FEES WILL BE PRORATED ON A STRAIGHT-LINE BASIS OVER THE SUBSCRIPTION TERM TO WHICH THEY RELATE, SUCH THAT ONLY THE PORTION OF SUCH FEES ATTRIBUTABLE TO THE TRAILING TWELVE (12) MONTH PERIOD IS INCLUDED. FEES THAT ARE REFUNDED, CREDITED, OR DISPUTED IN GOOD FAITH ARE NOT INCLUDED IN THE CALCULATION OF THIS CAP.

15.3. Super-Cap for Certain Claims. 

NOTWITHSTANDING SECTION 15.2, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY FOR CLAIMS DESCRIBED IN SUBSECTIONS (i) THROUGH (iv) BELOW WILL NOT EXCEED TWO (2) TIMES THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO REALTHEORY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (WITH THE SAME PRORATION OF UPFRONT, LUMP-SUM, OR ANNUAL-IN-ADVANCE FEES AS PROVIDED IN SECTION 15.2):

(i) claims arising out of a party’s breach of its confidentiality obligations under Section 12 (Confidentiality);

(ii) claims arising out of a party’s indemnification obligations under these Terms (including Section 5.4 (Your Indemnity), Section 5.7 (Customer Privacy Warranties and Indemnity), and Section 16 (IP Indemnification));

(iii) claims arising out of a party’s breach of applicable data-protection or privacy laws with respect to Personal Data processed under these Terms; and

(iv) claims arising out of a party’s infringement or misappropriation of the other party’s intellectual property rights.

15.4. Uncapped Liability. 

NOTHING IN THESE TERMS WILL LIMIT OR EXCLUDE:

(i) either party’s liability for gross negligence or willful misconduct, in each case as determined by a final, non-appealable decision of a court of competent jurisdiction;

(ii) any liability that cannot be limited or excluded under applicable law;

(iii) Customer’s payment obligations under these Terms; or

(iv) Customer’s infringement or misappropriation of RealTheory’s intellectual property rights, or breach of the license restrictions in Section 3.3 (Restrictions).

15.5. 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.

16.1. RealTheory’s Defense Obligation. 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 (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 the Claim is handled in accordance with Section 16.3 (Indemnification Procedure).

16.2. Remedies and Limitations on Scope. 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 RealTheory Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (2) 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; (3) to unauthorized use of RealTheory Cloud Products; (4) 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 Section 5.7 (Customer Privacy Warranties and Indemnity), or (z) any third-party components or deliverables that are not provided by RealTheory as part of the RealTheory Cloud Products, or that are used by you separately from or outside the scope authorized under these Terms; or (5) if you settle or make any admissions with respect to a Claim without our prior written consent.

16.3. Indemnification Procedure. Each party’s indemnification obligations under this Agreement are subject to the following procedure: (i) the indemnified party will provide prompt written notice of the claim to the indemnifying party (delay will not relieve the indemnifying party except to the extent actually prejudiced); (ii) the indemnifying party will have sole control of the defense and settlement of the claim, provided that the indemnifying party will not settle a claim that imposes non-monetary obligations on the indemnified party, admits fault on the part of the indemnified party, or requires the indemnified party to pay any amount, without the indemnified party’s prior written consent; (iii) the indemnified party will provide reasonable cooperation at the indemnifying party’s expense; and (iv) the indemnified party may participate in the defense with counsel of its own choice at its own expense.

REALTHEORY’S TOTAL LIABILITY UNDER THIS SECTION 16 IS SUBJECT TO THE SUPER-CAP IN SECTION 15.3. 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.

RealTheory will not identify Customer as a customer, or otherwise reference Customer’s name, logo, or relationship with RealTheory, in promotional materials (including websites, presentations, and case studies) without Customer’s prior written consent. Customer’s consent may be given for specific uses, for a defined period, or on a standing basis, and may be revoked at any time by written notice 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 conflict-of-law principles. 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 the state or federal courts located in Atlanta, Georgia, USA, and each party irrevocably submits to the exclusive personal jurisdiction of such courts. 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 either party 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.

18.5. Limitation Period. Except for claims for non-payment of fees or infringement or misappropriation of intellectual property rights, no cause of action (regardless of form) arising out of or related to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

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.

These Terms cannot be modified without an express written amendment signed by both parties.

20.1. No-Charge Products. If we amend any terms related to 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. We may modify Our Policies, including the Acceptable Use Policy (AUP) and User Terms, to reflect changes in our products, business, or applicable Laws. Any modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies. For changes to the AUP or User Terms, RealTheory will provide you with no less than thirty (30) days’ prior notice of any material updates. If you reasonably determine that a modification materially and adversely affects your use of the Services, you may provide written notice to RealTheory within thirty (30) days of the change taking effect. Upon receipt of such notice, RealTheory shall have thirty (30) days to evaluate and, at its sole discretion, either (i) allow you to continue under the prior version of the affected policy for the remainder of your current Subscription Term, or (ii) permit you to terminate the agreement by providing an additional thirty (30) days’ written notice. In the event of termination under this section, you will receive a prorated refund for any unused portion of prepaid fees. This section does not apply to changes required by Laws, which RealTheory may update as necessary to maintain compliance with applicable Laws.

20.3 Community Forums. If Customer or End Users access RealTheory community forums or other public community areas, such use is subject to RealTheory’s then-current Community Terms made available with the applicable forum.

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. Notwithstanding the foregoing, in no event shall any changes to the Cloud Products materially reduce or degrade their functionality.

22. General Provisions.

22.1. Notices. Any notice under these Terms must be given in writing. Notices to Customer: at the address specified in the applicable Order. Notices to RealTheory: RealTheory, Inc., 7778 Mcginnis Ferry Rd, Ste. 238, Suwanee, GA 30024, Attn: General Counsel. Notices will be deemed given upon certified receipt.

22.2. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under these Terms (excluding payment obligations) due to events beyond its reasonable control. Such events include, but are not limited to, acts of God, government actions, insurrection, war, terrorism, riots, natural disasters, global health emergencies, pandemics, fires, floods, earthquakes, nuclear incidents, and failures or disruptions of power, telecommunications, or internet services beyond the reasonable control of the affected party. RealTheory will not be held responsible for service unavailability caused by such events.

22.3. Assignment. Neither you nor RealTheory may assign or transfer these Terms without the other party’s prior written consent. As an exception to the foregoing, either party may assign these Terms in their entirety (including all Orders) to any successor resulting from a merger, acquisition, or sale of all or substantially all of such party’s assets or voting securities, provided that the assigning party provides prompt written notice of the assignment and the assignee agrees in writing to assume all of the assigning party’s obligations under these Terms. Any attempt to transfer or assign these Terms except as expressly authorized above will be null and void. 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, nor any invoice supplied by us 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. No clickwrap or other online terms will be binding on you, even if you or your End Users are required to accept or approve such terms in order to access the Services. However, Our Policies shall remain binding on End Users but will not modify the core business terms of this Agreement.

22.5. Conflicts. In the event of any conflict between these Terms and any applicable attachment, addendum, or schedule incorporated by reference, such attachment, addendum, or schedule will control with respect to its 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. 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" means 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 RealTheory’s standard published documentation for the RealTheory Cloud Products, currently located at https://resources.realtheory.io/docs/overview, as such documentation is in effect on the Effective Date and as updated by RealTheory from time to time in the ordinary course of its product operations. Updates to the Documentation may describe evolving operational characteristics of the Services (including, without limitation, automation capabilities under Section 3.4) and will not, by themselves, constitute a modification of this Agreement.

"End User" means an individual that 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 voluntary suggestions, comments, ideas, or improvement requests that Customer or an End User affirmatively and explicitly submits to RealTheory about the Services themselves (for example, through a support ticket, user-research session, or product feedback form). Feedback excludes Customer Data, Confidential Information, telemetry, usage metrics, observations derived from Platform operation in Customer’s environment, and any other information that Customer has not affirmatively and explicitly submitted as Feedback.

"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 Policies" refers to the following policies:

(a) Acceptable Use Policy: https://realtheory.io/legal/acceptable-use-policy

(b) Privacy Policy: https://realtheory.io/legal/privacy-policy

(c) Support Policy: https://realtheory.io/legal/support-policy

(d) User Terms: https://realtheory.io/legal/user-terms

(e) Cookie & Tracking Notice: https://realtheory.io/legal/cookie-tracking-notice

These policies govern your use of the RealTheory Cloud Products and are incorporated into these Terms by reference.

"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.

"Personal Data" has the meaning set forth in the DPA.

"Platform" means collectively, the RealTheory Cloud Products and the underlying systems, models, and technology used to provide them.

"PO" means a purchase order.

"RealTheory Cloud Platform" means the RealTheory Cloud Products.

"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.

Exhibit A — RealTheory Data Processing Addendum

This Data Processing Addendum ("DPA") forms part of the RealTheory Terms of Service (the "Agreement") between RealTheory, Inc. ("RealTheory") and the customer ("Customer") who has entered into the Agreement for the purchase of RealTheory services (the "Services").

1. DEFINITIONS

1.1 "Applicable Data Protection Laws" means all data protection and privacy laws and regulations applicable to the processing of Personal Data under this DPA, including but not limited to the General Data Protection Regulation (EU) 2016/679 ("GDPR") and the California Consumer Privacy Act ("CCPA").

1.2 "Personal Data" means any information relating to an identified or identifiable natural person that RealTheory processes on behalf of the Customer in connection with the Services.

1.3 "Processing" means any operation or set of operations performed on Personal Data, whether or not by automated means, including collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, alignment, combination, restriction, erasure, or destruction.

1.4 "Subprocessor" means any third party appointed by RealTheory to process Personal Data on behalf of the Customer.

2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties. The parties acknowledge that the Customer acts as the data controller and RealTheory acts as the data processor in relation to Personal Data processed under the Agreement.

2.2 Customer Obligations. The Customer shall ensure that it has all necessary rights and consents to provide Personal Data to RealTheory for processing in accordance with this DPA and the Agreement.

2.3 RealTheory Obligations. RealTheory shall process Personal Data solely for the purpose of providing the Services and in accordance with the Customer’s documented instructions, unless otherwise required by law.

3. SECURITY MEASURES

3.1 RealTheory shall implement appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure.

3.2 The specific measures implemented by RealTheory are described in its Privacy Policy available at: https://realtheory.io/legal/privacy-policy.

4. SUBPROCESSORS

4.1 The Customer authorizes RealTheory to engage Subprocessors to assist in the performance of the Services, provided that RealTheory ensures each Subprocessor is bound by obligations consistent with this DPA.

4.2 The following Subprocessor is engaged by RealTheory to process Personal Data in connection with the performance of the Services:

Microsoft Azure — Cloud hosting and infrastructure (https://azure.microsoft.com/)

RealTheory also uses third-party tools in connection with its own business operations (such as billing, customer support, and website analytics), for which RealTheory acts as an independent controller. These tools are not Subprocessors of Customer Personal Data processed on behalf of Customer under this DPA.

4.3 RealTheory shall notify the Customer of any intended changes concerning the addition or replacement of Subprocessors no less than thirty (30) days prior to RealTheory making such change. Customer shall have thirty (30) days from the date of such notice to object to any change in the list of Subprocessors. Customer and RealTheory shall work together to overcome any such objection, and if Customer and RealTheory cannot agree on a path forward, Customer may, as its sole and exclusive remedy, terminate any outstanding Orders and receive a refund of any prepaid but unused fees on a pro-rata basis.

5. DATA SUBJECT RIGHTS

5.1 RealTheory shall provide reasonable assistance to the Customer in responding to data subject requests to exercise their rights under Applicable Data Protection Laws.

5.2 If RealTheory receives a data subject request directly, it shall promptly notify the Customer and refrain from responding to the request without the Customer’s authorization.

6. DATA BREACH NOTIFICATION

6.1 RealTheory shall promptly notify the Customer upon becoming aware of any Personal Data breach, but in no event later than 72 hours after becoming aware of such breach, that affects Customer Data, providing sufficient information to assist the Customer in fulfilling its legal obligations.

7. DATA RETURN AND DELETION

7.1 Following expiration or termination of the Agreement and the conclusion of any wind-down or export period provided under the Agreement, RealTheory shall delete all Personal Data processed on behalf of the Customer, unless applicable law requires its retention.

8. AUDIT RIGHTS

8.1 The Customer may, upon reasonable prior written notice and at its own expense, no more than once per year, audit RealTheory’s compliance with this DPA, in accordance with Applicable Data Protection Laws.

9. INTERNATIONAL DATA TRANSFERS

9.1 RealTheory shall ensure that any transfer of Personal Data outside the European Economic Area (EEA), the United Kingdom, or Switzerland is subject to an appropriate data-transfer mechanism. Where required, the parties agree that the Standard Contractual Clauses approved by the European Commission (and, for United Kingdom transfers, the UK International Data Transfer Addendum) are incorporated into this DPA by reference and will apply to such transfers, with the relevant modules and annexes completed in accordance with the parties’ roles under Section 2.1.

10. LIABILITY

10.1 Each party’s liability arising under this DPA shall be subject to the limitations and exclusions of liability set forth in the Agreement.

11. GENERAL PROVISIONS

11.1 In the event of any conflict between this DPA and the Agreement, the terms of this DPA shall prevail with respect to the processing of Personal Data.

11.2 This DPA shall remain in effect as long as RealTheory processes Personal Data on behalf of the Customer.

 This DPA is incorporated into and forms part of the Agreement and applies as of the Effective Date of the Agreement.

For any questions regarding this DPA, please contact:

RealTheory Inc.
7778 Mcginnis Ferry Rd, Ste. 238
Suwanee, GA 30024
E-Mail: privacy@realtheory.io