THETA LAKE, INC.
1. SERVICES AND SUPPORT
2. GENERAL LICENSE TERMS
2.2. Customer specifically agrees to limit the use of the Service to those parameters set forth in the applicable Order Form. Without limiting the foregoing, Customer specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make the Service (including the documentation) available to any third party (except subcontractors); (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein (including but not limited to hacking or penetration testing Theta Lake’s systems); (iii) modify, copy or create derivative works based on the Service; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Service, in whole or in part; or (v) access the Service for the purpose of building a competitive product or service or copying its features or user interface.
2.3. In addition, Customer agrees not to use a Service, or permit it to be used, for purposes of: (i) product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without Theta Lake's prior written consent; (ii) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (iii) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export/import control, recording of telephone or other communications, collection and processing of biometric information, unfair competition, anti-discrimination, and/or false advertising); (iv) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; and/or (v) filing copyright or patent applications that include the software and/or documentation or any portion thereof.
2.4. Customer hereby grants to Theta Lake and its service providers a worldwide, limited term license to host, copy, transmit, display and process Customer Data, as defined below, solely to the extent necessary for Theta Lake to provide and maintain the Service contemplated by the parties.
3. CUSTOMER RESPONSIBILITIES
3.1. Internet Access. Customer is required to have a high speed Internet connection for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Service, including but not limited to, “browser” software that supports protocol used by Theta Lake, including Secure Socket Layer (SSL) protocol or other protocols accepted by Theta Lake, and to follow log-on procedures for services that support such protocols. Theta Lake is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Theta Lake. Theta Lake assumes no responsibility for the reliability or performance of any connections as described in this Section.
3.2. Accurate Customer Information. Customer is responsible for providing accurate, current and complete contact information, including Customer’s legal business name, physical address, email address and phone number and for updating this information promptly in the event of any change.
3.3. Administration of Usernames and Passwords. As part of the registration process, Customer will identify an administrative username and password for Customer’s Service account. Customer may use the administrative username and password to create standard users (each with a user password). Customer is responsible for maintaining the security of its usernames and passwords at the user level and for promptly changing or deleting any username or password that Customer believes may have been compromised. Theta Lake reserves the right to institute password requirements (such as the length of password or the required use of numbers, symbols etc.) and to refuse registration of, or cancel passwords it deems inappropriate.
3.4. Responsibility for User Activity. Customer shall be responsible for all activities undertaken by Customer’s employees or agents in connection with their use of the Services, as well as for any failure on the part of its employees or agents to comply with any relevant law or regulation including, but not limited to, copyright law for content submitted into the Service by Customer. Customer hereby agrees to indemnify and hold Theta Lake, its officers, directors, employees and agents harmless from and against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) in connection with any claim or action that arises from the actions of Customer’s employees or agents in connection with their use of the Service.
3.5. Third Party Services. The Service may allow Customer to interface with a variety of third party software or services obtained separately by Customer (e.g., Zoom, Vidyard, BlueJeans, YouTube, Cisco Webex, etc.). No endorsement of any such service should be inferred as a result of any integration with the Service and Theta Lake is not responsible for the data, operation or functionality of such third party services. While Theta Lake may, in its sole discretion, customize the Service to interoperate with various third party services: (i) Customer is responsible for complying with the terms and policies of each such third party service including, without limitation, any payment obligations related thereto; and (ii) Theta Lake cannot guarantee that such third party services will continue to interoperate with the Service.
3.6. Self-Service Data Export. At any time, Customer may export data from the Service to its AWS S3 bucket, Azure Blob container, or O365 account. Customer can manage export integrations directly in the Service's Policy settings screen by selecting the Content Destination feature and adding "Archive and eDiscovery Systems."
4. THETA LAKE RESPONSIBILITIES
4.1. Service Level Commitment; Support. Theta Lake will provide the Service in conformance with the Theta Lake Enterprise Service Level Agreement and Technical Support Agreement available here (the “Service Level Agreement”).
4.2. Security. Theta Lake maintains commercially reasonable safeguards to protect the security and integrity of the data uploaded by Customer to Theta Lake via the Services (“Customer Data”) and stored on Theta Lake’s servers. Such safeguards include commercially reasonable (a) backup, disaster recovery, and incident response procedures, (b) encryption of data in transit and at rest, (c) firewalls and access controls designed to prevent unauthorized access to the Services, (d) vendor management policy and program to assess and monitor risk of Theta Lake’s vendors, (e) an annual SOC 2, Type 2 audit of Theta Lake’s security practices, (f) conduct background checks of personnel, and (g) using a SOC 2, Type 2 certified (or equivalent) data center.
4.3. Training; Professional Services. If Customer has elected to purchase training or other professional services from Theta Lake, then Theta Lake will provide such training and/or professional services in a timely and diligent manner in accordance with the scheduling criteria agreed to by the parties and set forth on the Order Form.
5. MODIFICATIONS TO THE SERVICE
Theta Lake may make modifications to the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modification. Theta Lake reserves the right to discontinue offering the Service at any time; provided, however, that in the event Theta Lake elects to discontinue the Service prior to the end of the Initial Term or any Renewal Term (each as defined in the “Term; Termination” Section below), then Theta Lake will refund to the Customer a pro-rata refund of the subscription fees paid for the undelivered portion of the Initial Term or Renewal Term (as the case may be).
Each party (the “Receiving Party”) understands that, in connection with the provision and use of the Service, the other party (the “Disclosing Party”) may disclose Confidential Information relating to the Disclosing Party’s business. For purposes hereof, “Confidential Information” shall include each party’s proprietary technology, business processes and technical product information, data and designs, as well as all communication between the parties regarding the Service, as well as any information that is identified as confidential at the time of its disclosure.
The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to divulge to any third person any such Confidential Information. The Receiving Party will limit access to the Confidential Information of the Disclosing Party to only those of the Receiving Party’s employees, attorneys, or service providers having a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required by law.
Theta Lake shall not disclose Customer Data to any third party, except to the extent necessary for the performance of Services pursuant to this Agreement, or to the extent such disclosure is required by law. Theta Lake maintains a list of its subprocessors, with whom it has executed relevant Data Processing Addenda, on its support portal.
Theta Lake will not sell Customer Data for any purpose.
In the event that Customer seeks to locate, update, correct, or delete Customer Data, it may use the self-service search, retrieval, and export capabilities of the Services. Theta Lake will promptly notify Customer if it receives any requests to locate, update, correct, or delete Customer Data.
8. PAYMENT OF FEES; TAXES
Fees for the Service will be Subscription Fees and other fees (the “Fees”) and are due and payable to Theta Lake or its designated reseller (as set forth on the Order Form) in advance. If Customer’s use of the Service exceeds the limitations set forth in the Order Form, Customer shall be billed for the excess usage in accordance with Theta Lake’s then-current rates, and Customer agrees to pay the additional fees in the manner provided herein. Except as explicitly set forth herein, all Fees are non-refundable. Theta Lake reserves the right to change the Fees and to institute new Fees at any time upon notice to Customer, with such updated Fees to apply to any renewal of the Service by Customer. In the event that Theta Lake or its designated reseller is required to pay any withholding tax to any government entity in Customer’s jurisdiction in connection with the provision of the Service to Customer, then such withholding tax shall be billed to Customer in addition to the Fees such that the net payment received by Theta Lake or its designated reseller after the deduction of such withholding tax remains the same as if no withholding tax were applicable. Any such invoice shall be due and payable no later than thirty (30) days following date of invoice. Any payment not received from Customer by the due date may accrue (except for amounts then under reasonable and good faith dispute) interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid unless otherwise agreed upon by Theta Lake and Customer. Theta Lake may decline to make any shipments of Services or provide Services if, in Theta Lake’s reasonable opinion, circumstances exist which raise doubt as to Customer’s ability or willingness to pay as provided herein. Failure to make timely payment may result in immediate termination of access to the Service. Customer shall monitor and report its actual usage of the subscription-based Service based on the applicable licenses and inform Theta Lake by email at firstname.lastname@example.org of the then current actual count if it is greater than outlined in the Order Form.
9. TERM; TERMINATION
Customer’s annual or multi-year term will commence on the Effective Date identified on the Order Form and shall continue for the terms as specified in the Order Form, hereafter (the “Initial Term”). Subject to earlier termination as provided below, following the Initial Term, Customer’s subscription to the Service will automatically renew for additional one (1) year periods (each a “Renewal Term” and, together with the Initial Term the “Term”) unless either party requests termination at least ninety (90) days prior to the end of the then-current term.
Upon termination of Customer’s use of the Service for any reason, Theta Lake may, but is not obligated to, delete any archived data associated with Customer’s account. As described in Section 3.6 above, Customer may export its data at any time using the Service’s export feature.
10. INTELLECTUAL PROPERTY
If Customer provides comments, suggestions and recommendations to Theta Lake about the Service (e.g., modifications, enhancements, improvements) (collectively, "Feedback"), Customer assigns such Feedback to Theta Lake.
Theta Lake warrants that the Service will perform substantially in accordance with the documentation provided to Customer in connection with the provision of the Service. Theta Lake shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Theta Lake or by third-party providers, or because of other causes beyond Theta Lake’s reasonable control.
12. DISCLAIMER OF WARRANTIES
THETA LAKE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE WILL PROTECT AGAINST ALL POSSIBLE RISKS; NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND THETA LAKE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. THETA LAKE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
13. LIMITATION OF LIABILITIES
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL (EXCLUDING ANY BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN THE CONFIDENTIALITY SECTION) OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL CAUSE OF ACTION (REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE TO THE MAXIMUM EXTENT PERMITTED BY LAW).
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN THE INDEMNIFICATION SECTION BELOW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER.
If a Claim is brought or threatened, Theta Lake shall, at its sole option and expense, use commercially reasonable efforts either: (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate Customer’s subscription to the Service and refund to the Customer a pro-rata refund of any previously paid Subscription Fees for the terminated portion of the Term. The rights and remedies granted Customer under this Section state Theta Lake’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
14.3. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (a) promptly notify the indemnifying party in writing of such Claim; (b) allow the indemnifying party to have sole control of its defense and settlement; and (c) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party’s compliance with this Section except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of the Customer’s Service subscription for one year.
15. CLOUD SERVICE PROVIDERS
Theta Lake uses Amazon Web Services and Microsoft Azure, collectively the “Cloud Service Providers,” to provide the Services. Theta Lake agrees to the following with respect to the Cloud Service Providers:
- (b) Theta Lake shall obtain from the Cloud Service Providers and review, on an annual basis, copies of their SOC 2 Type 2 Reports; and
- (c) In the event that material deficiencies directly impacting the Services are identified in Cloud Service Provider’s SOC 2, Type 2 Reports, Theta Lake will investigate, prioritize, and remediate such material deficiencies directly impacting the Services through appropriate compensating controls, to the extent required to continue providing the Services.
16.4. Use of Customer’s Name/Logo in Standard Marketing Materials. Neither party will use the other party’s company name and logo as a reference for marketing or promotional purposes without such other party’s prior written consent.
16.5. Notices. All notices hereunder will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Customer shall be sent to the address shown on the associated Order Form, or such updated address as may be provided by Customer in writing. Notices to Theta Lake shall be sent to:
Theta Lake, Inc.
Attention: Devin Redmond
4 Fairoaks Court
San Mateo, CA 94403
16.6. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's possession or reasonable control, and denial of service attacks.
16.7. Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Service and Theta Lake Confidential Information and any media, to assure that the Service, Theta Lake Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.