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 access to and use of the RealTheory Cloud Products and related Support (collectively, the "Services").

These Terms apply to and are incorporated into each Order. Access to or use of the Services does not by itself constitute acceptance of these Terms, and no clickwrap, browse-wrap or other online acceptance mechanism creates or modifies an agreement between the parties, as provided in Section 22.4.

These Terms are published here so that customers, prospective customers and their advisors can review RealTheory's current standard terms. RealTheory may publish updated versions from time to time. The version of these Terms incorporated into an executed Order governs that Order, and these Terms are amended only as provided in Section 20 and Section 22.6.

You represent and warrant that: (i) the person executing an Order that references or incorporates these Terms has full legal authority to bind Customer to these Terms; (ii) You have read and understand these Terms; and (iii) You agree to these Terms.

These Terms are effective as of the Effective Date stated in, or established by, the applicable Order.

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 creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; managing access to Customer Data by End Users or others; and making configuration and deployment decisions that affect your consumption of the RealTheory Cloud Products. Administrators do not place Orders; all Orders are made outside the RealTheory Cloud Products in accordance with Section 7. 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. 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 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.

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, RealTheory hereby grants you a worldwide, non-exclusive, non-transferable, non-sublicensable license to 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. During the applicable Subscription Term, RealTheory will make the RealTheory Cloud Products available to you in accordance with these Terms, the applicable Order and the Documentation. Availability is addressed as provided in Section 3.2 and Section 14.2.5. A failure, degradation, or outage of third-party cloud or hosting infrastructure that is beyond RealTheory’s reasonable control will not constitute a breach of this availability covenant.

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 or sets out a service level agreement ("SLA"), the terms, metrics, remedies, and exclusions of that SLA govern and supersede any service levels stated in the Support Policy. Absent such a reference, the Uptime Commitment and associated service credits stated in the Support Policy for your applicable support plan, if any, apply, and those service credits are your sole and exclusive remedy for any failure to meet that commitment. Response times and other targets stated in the Support Policy are targets and do not constitute service level commitments. Any onboarding or enablement assistance RealTheory provides is furnished as part of Support and does not create any deliverable, acceptance, or milestone obligation, or any guaranteed outcome or timeline. For the purposes of Section 22.5, this Section 3.2 expressly provides that the Support Policy controls with respect to the Uptime Commitment and the associated service credits.

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) without RealTheory’s prior written consent, publicly disclose or disseminate any benchmarking, testing, performance information, or performance comparison relating to the RealTheory Cloud Products or any component thereof, including any comparison against a third-party product or service; or

(j) 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 10, 14 and 15, as applicable (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. These Terms govern your use of automation regardless of such evolution. As of the Effective Date, automation capabilities are a Beta Version and are made available under Section 10 unless the applicable Order states otherwise. Automation capabilities are pre-release and are not generally available. While automation capabilities remain a Beta Version, RealTheory recommends that they be enabled only in environments you designate as non-production. You select which clusters to connect and on which to enable automation. RealTheory does not classify, and has no knowledge of, whether any cluster is a production or non-production environment, and you alone determine the suitability of each cluster.

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, the data your systems, telemetry sources and integrations provide, and the resilience and recovery of your environment. Without limiting the foregoing, RealTheory is not responsible for any failure, degradation, or inaccuracy of the Services to the extent caused by your configuration, insufficient or misconfigured permissions or access grants, restriction or blocking of telemetry, network or firewall restrictions, changes to your environment outside RealTheory’s control, or data that is incomplete, inaccurate, delayed, misconfigured, or unavailable from the systems, telemetry sources, and integrations you connect. 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.

3.6. Affiliate Use.

Where the applicable Order expressly permits, your Affiliates may access and use the RealTheory Cloud Products under that Order. You remain responsible for each such Affiliate’s compliance with these Terms and for all fees arising from their use. Affiliate use counts toward the scope, quantities, and commitments stated in the applicable Order. No Affiliate acquires any independent right under these Terms, and no Affiliate may place an Order or exercise any right under these Terms except through you, unless it enters into a separate agreement with RealTheory.

4. Our security and data privacy policies.

4.1. Security.

Without limiting Section 14 or your obligations under these Terms, we will implement reasonable and appropriate measures designed to help secure Customer Data against accidental or unlawful loss, access or disclosure. RealTheory will notify you without undue delay after becoming aware of unauthorized access to, or unauthorized disclosure of, Customer Data in RealTheory’s possession or control. This obligation does not apply to unsuccessful attempts, scans, pings, or other activity that does not compromise RealTheory’s systems, or to access resulting from your own credentials, configurations or acts where RealTheory’s systems were not compromised. Where the affected data includes Personal Data, the notification obligations in the DPA also apply.

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, which forms Exhibit A to these Terms and is incorporated into them by reference.

4.3. No Cross-Customer Model Training Using Customer Data.

RealTheory will not use Customer Data, prompts, or Platform outputs to train, fine-tune, or otherwise develop or improve machine-learning models made available to other customers, except with your prior written consent. RealTheory may use Customer Data, prompts, and Platform outputs, including by applying machine-learning, statistical and other analytical techniques and by generating baselines, forecasts, anomaly signals, insights and recommendations specific to your environment, to provide, maintain, secure, support, and improve the Services for you. Such use is part of providing the Services to you under Section 5.1. Any consent given under this Section may be limited in scope and duration and may be withdrawn by you on written notice as to future processing. Where you direct that prompts, Customer Data, or Platform outputs be sent to a model, model provider, or model endpoint that you select, configure, or supply, RealTheory’s commitments in this Section 4.3 do not extend to that provider’s processing, which is governed by your agreement with it.

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. For Platform outputs that you review or rely upon outside an automation capability enabled under Section 3.4, you must independently evaluate and verify those outputs before relying on them. Your responsibilities with respect to automated actions are governed by Section 3.4. In either case, 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 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). The quality, accuracy, completeness, and timeliness of Platform outputs and automated actions depend on the data RealTheory receives from the systems, telemetry sources, and integrations you connect and on how you configure them. You are responsible for the data your systems and integrations provide, and RealTheory is not responsible for any Platform output or automated action to the extent it is affected by data that is incomplete, inaccurate, delayed, misconfigured, or unavailable from those sources.

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 the Services.

Providing the Services requires the transmission to RealTheory of system and infrastructure metadata and telemetry from the environments and systems you connect, together with account identifiers for the Administrators and End Users you authorize. The categories of data collected are described in the Documentation. You retain all right, title, and interest, including all intellectual property rights, in and to Customer Data, and RealTheory claims no ownership rights in it. You grant RealTheory, and those of its Affiliates and subprocessors involved in providing the Services, a limited, non-exclusive, worldwide, royalty-free, non-transferable 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 Services to you. This grant confers no ownership interest in Customer Data, permits no use of Customer Data for any other purpose, and expires with the Subscription Term, subject to Section 13.3 and except as provided in Section 5.5.

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. The Services are not designed to process protected health information subject to HIPAA or cardholder data subject to PCI DSS; RealTheory does not act as a business associate under HIPAA or as a service provider under PCI DSS, and no such information may be submitted to or collected through the Services. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information, protected health information, or cardholder data submitted in violation of the foregoing.

5.4. 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 5.4, 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.

5.5. Operational Metrics.

RealTheory collects and processes Operational Metrics generated by the operation of the Services and the environments and systems you connect. These include, without limitation: (a) cluster and workload metadata, including object specifications and statuses and the names, labels, selectors and annotations associated with them; (b) execution configuration; (c) resource usage and performance metrics; (d) cost metadata; (e) where you enable the applicable capability, image and vulnerability metadata; and (f) where you enable an integration, metadata, metrics, traces, signals and other operational data received from the third-party systems and telemetry sources you connect. The categories collected are further described in the Documentation. Operational Metrics are designed not to include application payloads, user-generated content, the contents of network traffic, or Personal Data. Operational Metrics do not include secrets or passwords; credentials you separately supply to enable an optional capability are processed only as necessary to provide that capability and are not Operational Metrics. Notwithstanding Section 5.1, RealTheory may use Operational Metrics to operate, secure, monitor, troubleshoot, analyze, and improve the Services, and you grant RealTheory a non-exclusive, worldwide, royalty-free right to use Operational Metrics for those purposes. Operational Metrics constitute Customer Data, and RealTheory’s use of Operational Metrics to train, fine-tune, or otherwise develop machine-learning models is governed by Section 4.3. Nothing in Section 4.3 or this Section restricts RealTheory from applying machine-learning, statistical and analytical techniques to Operational Metrics, including generating baselines, forecasts, anomaly signals and recommendations specific to your environment, in order to provide the Services to you. RealTheory will not disclose Operational Metrics to third parties in a form that identifies you without your prior written consent. As between the parties, and subject to your ownership of Platform outputs under Section 4.4, RealTheory owns all models, algorithms, methodologies, and improvements it develops, and all aggregated and benchmark data. RealTheory’s rights with respect to aggregated and de-identified data, benchmark data, and the models, methodologies and improvements it has developed survive expiration or termination of these Terms. RealTheory’s rights to use Operational Metrics in identifiable, customer-specific form do not survive expiration or termination, and such metrics are thereafter handled as provided in Section 13.3.

5.6. Customer Privacy Warranties.

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.

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. A model, model provider, or model endpoint that you select, configure, or supply for use with the Services (including where connected through a model context protocol or similar interface) is a third-party product or service for purposes of this Section 6, whether or not it is configured through the Platform.

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. Fees.

You will pay the fees set forth in each Order. Fees may include (a) license fees for access to the RealTheory Cloud Products during the Subscription Term ("License Fees") and (b) Consumption Fees as described in Section 7.2. Fees are not based on the number of End Users, and no per-user or per-seat fees apply unless expressly stated in an Order. You are responsible for all fees incurred through use of the RealTheory Cloud Products under your account, regardless of the results obtained or the quality or timeliness of those results. Except for Beta and Evaluation Products, License Fees begin to accrue on the Service Start Date specified in the applicable Order.

7.2. Consumption Fees.

Certain fees are based on your actual usage of the RealTheory Cloud Products ("Consumption Fees"). Consumption Fees accrue continuously and are invoiced for each billing period at the rates, units, tiers, and minimum commitments set forth in the applicable Order and its pricing schedule. Unless the applicable Order specifies otherwise, the billing period is one calendar month, and RealTheory may issue the invoice for a billing period on or after the last day of that period, based on usage measured as of the invoice date. Usage occurring after the measurement point for a billing period will be included in the next invoice. Consumption Fees for any partial billing period are calculated on actual usage during that period. Where an Order specifies a minimum commitment for a period, the Consumption Fees payable for that period will be the greater of the amount calculated from actual usage and that minimum. The measurement methodology, units of measure, billing period, tier structure, and any multipliers applicable to your usage are those set forth in the applicable Order. Consumption Fees are calculated based on your configuration and usage of the RealTheory Cloud Products, and are not recalculated retroactively for any prior billing period, except to correct a manifest billing, measurement, calculation, or data-input error identified by either party within twelve (12) months after the end of the billing period concerned. Consumption Fees are measured across all use of the RealTheory Cloud Products, including use of any Beta Versions, Beta and Evaluation Products, and pre-release features. Enabling any feature that increases your measured usage will increase your Consumption Fees for the applicable billing period.

7.3. When a New Order Is Required.

Your usage of the RealTheory Cloud Products may increase or decrease over time. No new or amended Order is required solely because your usage varies within the scope authorized by an existing Order; Consumption Fees will reflect that usage as described in Section 7.2. A new Order is required to add RealTheory Cloud Products or services not covered by an existing Order, and to renew at the end of the Subscription Term where the applicable Order does not provide for automatic renewal. Nothing in this Section limits the parties’ ability to agree an amended Order to change commercial terms. No new Order is required solely for continued use during a holdover period invoiced under Section 7.4.

7.4. Term and Renewal.

The Subscription Term for each Order is as stated in that Order. Unless the applicable Order expressly provides otherwise, each Subscription Term will renew automatically for a further period equal to the then-current Subscription Term, at RealTheory’s then-current rates or as specified in the applicable Order, unless either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term. Where the applicable Order provides that a subscription does not renew automatically, the parties will execute a new Order before the end of the then-current Subscription Term in order to renew. If you continue to use the RealTheory Cloud Products after expiry of the Subscription Term without executing a new Order, that use will be invoiced monthly at RealTheory’s then-current rates until either party terminates on thirty (30) days’ written notice. Each such monthly period constitutes a Subscription Term for all purposes under these Terms, and all other provisions of these Terms continue to apply during it. Where use ceases at expiry, non-renewal means you will not be charged for any subsequent period, but you will not receive refunds or credits for amounts already charged, and all committed License Fees and minimum Consumption Fees under executed Orders remain due.

7.5. 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 13 (Term and Termination), Section 14 (Warranties and Disclaimer), Section 16 (Indemnification), Section 20 (Changes to these Terms), Section 21 (Changes to the RealTheory Cloud Products) or the DPA, all amounts are non-refundable, non-cancelable and non-creditable. Your failure to issue a purchase order will not relieve you of your payment obligations under an executed Order, and any purchase order is for administrative convenience only and will not modify these Terms. Unless the applicable Order specifies otherwise, 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 access by you and your End Users to the applicable RealTheory Cloud Products with no further liability to you and your End Users, until such undisputed Fees are paid.

7.6. 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.

7.7. Invoicing; Service Start Date; Customer Prerequisites.

Unless the applicable Order specifies otherwise, invoicing may commence from the Effective Date; payment due dates are as set out in Section 7.5 or the applicable Order. Charges begin to accrue on the Service Start Date stated in the applicable Order. If an Order grants credit terms (e.g., Net-30/Net-45), access to the Services is not conditioned on prepayment. You are responsible for providing the access, credentials, environment information, security approvals, deployment permissions and technical contacts reasonably necessary to provision the Services. RealTheory is not responsible for any delay in provisioning to the extent caused by your failure to provide them, and no such delay will change the Service Start Date or defer the accrual of fees unless the applicable Order expressly provides otherwise.

7.8. 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.

Fees are exclusive of all taxes and duties, including sales, use, value-added, goods and services, excise, and similar transaction taxes and duties, however designated. You are responsible for all such taxes and duties arising in respect of the RealTheory Cloud Products, and where RealTheory is required to collect or remit them, you will pay them to RealTheory in addition to the fees. RealTheory is responsible for taxes based on its own net income, franchise taxes, and taxes on its own employees. If you provide us with a valid exemption certificate or other documentation of exemption, we will not charge the applicable tax prospectively from our receipt of that documentation.

8.2. Withholding Taxes.

All fees are exclusive of withholding taxes. If you are required by law to withhold or deduct any amount from a payment, you will increase the gross amount payable so that, after the withholding or deduction, RealTheory receives the amount it would have received had no withholding or deduction been required. 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.

Except as expressly stated in an Order, we may offer certain RealTheory Cloud Products to you without License Fees or access fees, including free accounts, trial use and Beta Versions as defined below (collectively, "Beta and Evaluation Products"). Your use of Beta and Evaluation Products is measured and billed as Consumption Fees in accordance with Section 7.2 to the extent it contributes to your measured usage, and this Section 10 applies to Beta and Evaluation Products regardless of any Consumption Fees so incurred. Your use of Beta and Evaluation 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 Beta and Evaluation Products. We may modify or terminate your right to use Beta and Evaluation 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 Beta and Evaluation 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 Beta and Evaluation Products, including any Support, warranty and indemnity obligations. For clarity, Beta and Evaluation Products are provided without License Fees or access fees, but their use may still generate Consumption Fees as described in Section 7.2.

NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, AND SUBJECT ONLY TO SECTION 15.4 (UNCAPPED LIABILITY), OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF BETA AND EVALUATION PRODUCTS WILL BE US $100.00. FOR CLARITY, SECTION 15.1 (CONSEQUENTIAL DAMAGES WAIVER) APPLIES IN FULL TO BETA AND EVALUATION PRODUCTS, AND NOTHING IN SECTION 14.2.5 EXPANDS ANY WARRANTY, REMEDY, OR LIABILITY APPLICABLE TO BETA AND EVALUATION PRODUCTS UNDER THIS SECTION 10.

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 the Platform. From time to time, you or your End Users may choose to submit Feedback to us. You grant RealTheory a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid, sublicensable license to use, reproduce, modify and incorporate any Feedback in the Services and in RealTheory’s products and services, without obligation or attribution. 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 part of the Platform 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, to the extent legally permitted, 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. During the Subscription Term, you may retrieve Customer Data at any time using the export mechanisms described in the Documentation. RealTheory has no obligation to make the Services available after expiration or termination. Upon your written request made within thirty (30) days after the effective date of expiration or termination, RealTheory will provide a one-time export of Customer Data then in RealTheory’s possession, in RealTheory’s then-standard export format. This export right does not apply to Account Data, the return of which is governed solely by Section A.11 of the DPA. Any assisted export, custom format, or further extract requested beyond the foregoing will be provided, if at all, at RealTheory’s then-current professional services rates. RealTheory has no obligation to retain Customer Data more than thirty (30) days after the effective date of expiration or termination and may delete it thereafter unless legally prohibited or unless retention is permitted under Section A.11.5 of the DPA. This Section does not limit RealTheory’s rights under Section 5.4. For clarity, RealTheory’s rights in aggregated and de-identified data, benchmark data, and the models, methodologies and improvements it has developed survive expiration or termination as provided in Section 5.5; RealTheory’s rights to use Operational Metrics in identifiable, customer-specific form do not. 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 1.2 (Order–DPA–ToS Precedence), 3.2 (Support) (exclusive remedy only), 3.3 (Restrictions), 3.4 (Automation), 4.3 (No Cross-Customer Model Training Using Customer Data), 4.4 (Customer Responsibility for Platform Outputs), 5.3 (No Prohibited Sensitive Personal Information), 5.5 (Operational Metrics), 5.6 (Customer Privacy Warranties), 6.1 (Third-Party Products), 7.5 (Payment), 8 (Taxes not included), 10 (Evaluations, trials, and betas) (disclaimers, liability cap, and use restrictions only), 11 (IP Rights in the RealTheory Cloud Products and Feedback), 12 (Confidentiality), 13 (Term and Termination), 14.2.3 (IP Warranty; Exclusive Remedy), 14.2.5 (Documentation; Exclusive Remedy) (solely with respect to alleged non-conformance occurring during the applicable Subscription Term), 14.3 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (Indemnification) (provided that Section 16.2 survives solely with respect to claims arising from your use of RealTheory Cloud Products during the Subscription Term), 18 (Dispute Resolution), 19 (Export Restrictions), 22 (General Provisions) and 23 (Definitions).

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 in all material respects with all Laws applicable to its provision of the Services;

14.2.3 the RealTheory Cloud Products do not infringe any third-party patent, copyright or trademark, or misappropriate any third-party trade secret, and RealTheory will take commercially reasonable steps to avoid doing so; 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. RealTheory’s covenant not to materially reduce or degrade core functionality during a Subscription Term is set out in Section 21. 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. The exclusive remedy stated above in this Section 14.2.5 does not apply to a claim for direct damages caused by an automated action that materially failed to conform to the Documentation, as described in Section 3.4, and only to the extent such damages were not caused or increased by your failure to comply with Section 2.5 (Customer Environment Resilience and Recovery) or by any matter described in Section 3.5 (Shared Responsibility). You must notify us of any such non-conformance within thirty (30) days after becoming aware of it. Any such damages are subject to the limitations in Section 15, including the general liability cap in Section 15.2. This Section does not affect the service level credits described in Section 3.2, which remain your sole and exclusive remedy for any failure to meet applicable service levels. Platform outputs generated using a model, model provider, or model endpoint that you select, configure, or supply are not warranted under Section 14.2.1, and an automated action that implements such an output does not constitute a failure of the Services to conform to the Documentation. Availability of the Services and their interfaces, including any application programming interfaces, does not constitute a failure of the Services to conform to the Documentation, and the exclusive remedy stated above in this Section 14.2.5 for failure to conform to the Documentation does not apply to availability. Availability is instead addressed as follows. Where an Uptime Commitment applies to you under the Support Policy, the service credits stated in the Support Policy are your sole and exclusive remedy for any failure to meet it. Where no Uptime Commitment applies to you, your sole and exclusive remedy for any failure to meet the availability covenant in Section 3.1 is termination under Section 13.2 and a pro-rata refund of prepaid, unused fees. For this purpose, a failure to meet the availability covenant is cured if the RealTheory Cloud Products are materially available at the end of the thirty (30) day cure period in Section 13.2, and the termination right described in the preceding sentence arises only if they remain materially unavailable at that time.

14.3. WARRANTY DISCLAIMER.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 14, SECTION 3.2 (SUPPORT) AND SECTION 16 (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 SECTIONS 14.2.3 AND 16 (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.

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, 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. FOR CLARITY, THE EXCEPTIONS IN SECTIONS 15.3 AND 15.4 LIFT THE APPLICABLE LIMIT ON LIABILITY ONLY, AND DO NOT CREATE LIABILITY FOR ANY DAMAGES EXCLUDED BY THIS SECTION 15.1, EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION). NOTWITHSTANDING THE EXCLUSIONS IN THIS SECTION 15.1, EACH PARTY REMAINS LIABLE FOR THE DIRECT COSTS OF FORENSIC INVESTIGATION, LEGALLY REQUIRED NOTIFICATION, REMEDIATION AND RESTORATION INCURRED BY THE OTHER PARTY AND ARISING FROM SUCH PARTY’S BREACH OF SECTION 4.1 (SECURITY) OR THE DPA, SUBJECT TO THE ENHANCED CAP IN SECTION 15.3.

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. Enhanced 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 (THE "ENHANCED CAP"):

(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 Section 16 (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;

(iv) Customer’s breach of the license restrictions in Section 3.3 (Restrictions); or

(v) either party’s fraud or fraudulent misrepresentation.

For clarity, claims arising out of either party’s infringement or misappropriation of the other party’s intellectual property rights are addressed in Section 15.3(iv) and are subject to the Enhanced Cap; provided that where conduct constitutes both a breach of Section 3.3 and such infringement or misappropriation, subsection (iv) of this Section 15.4 applies and the liability is not capped.

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. Indemnification.

16.1. 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 third-party claim that (a) any Customer Data infringes such third party’s intellectual property rights, or (b) arises from your breach of the representations and warranties in Section 5.6 (Customer Privacy Warranties). This Section 16.1 is subject to the procedure in Section 16.4. THIS SECTION 16.1 STATES YOUR SOLE LIABILITY AND OUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CUSTOMER DATA.

16.2. RealTheory’s Defense Obligation.

We will defend you (and your Affiliates, officers, directors, agents and employees) 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 misappropriate any third-party trade secret (a "Claim"), and will indemnify and hold you harmless from 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 and costs, provided that the Claim is handled in accordance with Section 16.4 (Indemnification Procedure) and subject to the exclusions in Section 16.3. For purposes of this Section 16.2, "Affiliates" means solely those of your Affiliates that are permitted users of the Services under an applicable Order.

16.3. Remedies and Limitations on Scope.

If your use of the RealTheory Cloud Products is enjoined, whether by court order or by settlement, or if we reasonably determine that such use is likely to be enjoined or that action is 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 in Section 16.2 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 16.1, 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.

16.4. Indemnification Procedure.

Each party’s indemnification obligations under these Terms 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 ENHANCED CAP IN SECTION 15.3. THIS SECTION 16 (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. Revocation applies prospectively; RealTheory will use reasonable efforts to remove the affected references from properties it controls within thirty (30) days of the notice. Nothing in this Section restricts RealTheory from factually referencing statements Customer has itself made publicly about the Services, with attribution to the public source, provided RealTheory does not use Customer’s logo or represent that Customer endorses RealTheory beyond the content of the public statement.

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, claims for infringement or misappropriation of intellectual property rights, and claims for breach of Section 12 (Confidentiality), no cause of action (regardless of form) arising out of or related to these Terms may be brought by either party more than twelve (12) months after the cause of action has accrued.

19. Export Restrictions.

You will comply with all applicable export control and economic sanctions laws and regulations in your access to and use of the RealTheory Cloud Products, including the collector and any other client software. "Prohibited Person" means any person or entity on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists, the U.S. Treasury Department’s Specially Designated Nationals or Consolidated Sanctions lists, or any equivalent restricted-party list maintained by a competent authority.

You represent and warrant that you are not a Prohibited Person, are not owned or controlled by or acting on behalf of a Prohibited Person, and are not located in or a national or resident of any country or region subject to comprehensive United States sanctions or embargo. You will not permit access to or use of the Services by any Prohibited Person, will not access or use the Services from or deploy the collector in any such country or region, and will notify RealTheory promptly if any of the foregoing ceases to be accurate.

20. Changes to these Terms.

Except as provided in Section 20.2, these Terms cannot be modified without an express written amendment signed by both parties.

20.1. Beta and Evaluation Products.

If we amend any terms related to Beta and Evaluation Products, your continued use of the Beta and Evaluation Products after the effective date of the amendment constitutes acceptance of it. If you object to the amendment, your exclusive remedy is to cease using the Beta and Evaluation Products.

20.2. We may modify Our Policies 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 Acceptable Use Policy, RealTheory will provide you with no less than thirty (30) days’ prior notice of any material updates. No update to the Support Policy will materially reduce the level of support or the service levels applicable to you during your then-current Subscription Term. 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 affected Order 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 the RealTheory Community Terms, which form part of Our Policies when published and made available with the applicable forum. Until RealTheory publishes Community Terms, use of any such forum is governed by the Acceptable Use Policy.

21. Changes to the RealTheory Cloud Products.

You acknowledge that the RealTheory Cloud Products are online, 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. RealTheory will not materially reduce or degrade the core functionality of the RealTheory Cloud Products during a Subscription Term. Any breach of the foregoing sentence will be deemed a breach of Section 14.2.1, and your sole and exclusive remedy will be as set forth in Section 14.2.5. Notwithstanding the foregoing, RealTheory may discontinue a RealTheory Cloud Product, or a material portion or feature of one, on at least ninety (90) days’ prior written notice, except that RealTheory may act on shorter notice where reasonably necessary to comply with Laws, to address a security or safety risk, or as a result of the termination or unavailability of a third-party dependency outside RealTheory’s reasonable control, in which case RealTheory will give as much notice as is reasonably practicable. Where RealTheory does so in respect of a RealTheory Cloud Product or material feature you are then using under an existing Order, RealTheory will either provide a substantially equivalent replacement at no additional charge or permit you to terminate the affected Order and receive a pro-rata refund of prepaid, unused fees.

22. General Provisions.

22.1. Notices.

Any notice under these Terms must be given in writing. Routine notices relating to Support, the Documentation, Our Policies, product changes, Subprocessor changes and security incidents may be given by email to the other party’s designated contact, and for Customer to the Notification Email Address or to any Administrator designated by Customer in the Services. Notices relating to invoicing, Delinquent Payments, suspension of access and indemnifiable claims may be given by email to the other party’s designated contact, and for Customer to the Notification Email Address. Notices of non-renewal under Section 7.4 may be given by email to the other party’s designated contact and, for Customer, to the Notification Email Address. Notices of termination, notices of material breach (other than for non-payment), and formal legal process must be given by certified mail or nationally recognized overnight courier, and will be deemed given upon receipt. Notices to RealTheory: RealTheory, Inc., 7778 McGinnis Ferry Rd, Ste. 238, Suwanee, GA 30024, Attn: General Counsel, with a copy by email to legal@realtheory.io. Notices to Customer: at the address and Notification Email Address specified in the applicable Order.

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. No assignment relieves the assigning party of any obligation accrued prior to the assignment. 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, the Acceptable Use Policy and, where published, the Community Terms apply directly to End Users. Our Policies form part of these Terms and will not modify the core business terms of these Terms. Your responsibility for End User compliance is as set out in Section 2.2.

22.5. Conflicts.

Subject to Section 1.2, in the event of any conflict between these Terms and any applicable attachment, addendum, or schedule incorporated by reference (other than Our Policies), such attachment, addendum, or schedule will control with respect to its subject matter. If any provision of Our Policies conflicts with these Terms, these Terms control unless these Terms expressly provide that the applicable Policy controls with respect to the matter in question.

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.

"Consumption Fees" has the meaning set forth in Section 7.2.

"Customer Data" means data and information made available to RealTheory by or on behalf of Customer or its End Users in connection with the Services, through any channel. Customer Data does not include Feedback. RealTheory’s rights in respect of Operational Metrics, and in respect of aggregated, de-identified and benchmark data, are as set out in Sections 5.5 and 4.4.

"Documentation" means RealTheory’s standard published documentation for the RealTheory Cloud Products, currently located at https://resources.realtheory.io/, 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 these Terms.

"End User" means an individual that you or an Affiliate permits or invites to use the RealTheory Cloud Products. For the avoidance of doubt, individuals invited by your End Users and individuals under managed accounts 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.

"Fees" means all amounts payable by Customer under an Order, including License Fees and Consumption Fees.

"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.

"License Fees" has the meaning set forth in Section 7.1.

"Notification Email Address" means the email address(es) specified in the applicable Order or otherwise subsequently designated by you in writing or through your account settings. 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.

"Operational Metrics" means the categories of operational metrics described in Section 5.5.

"Order" means a RealTheory-approved ordering document executed by the parties describing the products and services Customer is ordering and their permitted scope of use. An Order will identify, as applicable: (i) the RealTheory Cloud Products ordered; (ii) the Subscription Term and Service Start Date; and (iii) the fees, including any License Fees and the rates, units, tiers, and minimum commitments applicable to Consumption Fees, together with the billing terms, applicable currency, and form of payment.

"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) Community Terms, where published: applicable to RealTheory community forums and other public community areas as provided in Section 20.3

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

"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, together with their user experiences, their "look and feel", design, and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

"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.

"Service Start Date" means the date identified as the Service Start Date in the applicable Order.

"Subscription Term" means the subscription period stated in the applicable Order, and includes any period that constitutes a Subscription Term under Section 7.4.

"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. Where the applicable Order does not specify a Support level, Support is provided in accordance with the Support Policy and no Uptime Commitment or service level applies.

"Uptime Commitment" has the meaning given in the Support Policy. An Uptime Commitment applies only where the applicable Order specifies a Support level for which the Support Policy states one.

Exhibit A — RealTheory Data Processing Addendum

The RealTheory Data Processing Addendum forms Exhibit A to these Terms and is incorporated into them by reference. Because it sets out RealTheory's technical and organizational security measures and its elections under the Standard Contractual Clauses, the Data Processing Addendum is provided with the contract package rather than published on this page. To request a copy, contact privacy@realtheory.io.