Theta Lake Enterprise Terms of Use

THETA LAKE, INC.

ENTERPRISE TERMS OF USE

These Theta Lake, Inc. (“Theta Lake”) Enterprise Terms of Use, along with the Theta Lake Privacy Policy and the relevant Order Form (together this “Agreement”); shall govern Customer’s use of the Theta Lake services as described below.

1. DEFINITIONS

Audit Report means the SOC2 report, or other, similar, independent third-party reports relating to matters substantially similar to the SOC2.

Claims means any claims, suits, demands, or proceedings.

Cloud Service Providers means Amazon Web Services or Microsoft Azure.

Confidential Information has the meaning set forth in Section 7.1.

Customer means the individual or entity indicated in the signature block to these Enterprise Terms of Use.

Customer Data means Confidential Information that is uploaded by a Customer into the Theta Lake Security and Compliance Suite.

DPA means Theta Lake’s Data Processing Addendum, as may be attached hereto.

Effective Date means the date of the second signature on this Agreement.

Enterprise Terms of Use means these terms and conditions.

Feedback means any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the features, functionality or operation of the Service, or the professional services.

Fees means subscription (periodic or annual) fees for the Service, plus any other fees as specified on the applicable Order Form.

Initial Term has the meaning set forth in Section 10.

Intellectual Property Rights means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, Internet domain name or industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.

Order Form means the ordering document from Theta Lake detailing the Service to be provided to Customer.

Partner Agreement means the contract or agreement between a Customer and a Theta Lake Partner, which governs the relationship between the Customer and such Theta Lake Partner, as further defined in Section 17.

Renewal Term has the meaning set forth in Section 10.

Service means the services provided to Customer by Theta Lake under this Agreement.

Services Start Date means the Services Start Date identified on the applicable Order Form.

Service Level Agreement means the Theta Lake Enterprise Service Level Agreement and Technical Support Agreement attached hereto as Exhibit A.

SOC2 means Service Organization Controls – Type 2 report, as developed by the American Institute of CPA’s and written by an independent third-party certified in preparing such reports.

Support Portal means https://thetalake.zendesk.com/hc/en-us

Term has the meaning set forth in Section 10.

Theta Lake Partner means an authorized reseller or distributor of the Services

Theta Lake Privacy Policy means the terms and conditions set forth by Theta Lake as may be modified from time to time, and found here https://thetalake.com/privacy-policy/.

Usage Data means the data regarding applications utilized in connection with the Service, configurations, log data, and the performance results for the Service.

2. SERVICES AND SUPPORT

Subject to this Agreement, Theta Lake will provide Customer with the Service as set forth in the relevant Order Form. The Service is cloud-based and does not require any software to be installed or provided by Theta Lake or any software license to be granted to Customer.  

3. ACCESS TO SERVICES

3.1. Services. Subject to the terms of this Agreement, Theta Lake agrees to provide access to the Service during the Term in the quantities and manner specified in the applicable Order Form, solely for Customer’s own internal business purposes.

3.2. Limitations. Customer specifically agrees to limit the use of the Service to the terms set forth in the applicable Order Form. Without limiting the foregoing, Customer specifically agrees not to: (i) resell, 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 unless specifically authorized in writing by Theta Lake); (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.

3.3.  Further Limitations. In addition, Customer agrees not to use the 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, including spam; and/or (v) filing copyright or patent applications that include the software and/or documentation or any portion thereof.

4. CUSTOMER RESPONSIBILITIES

4.1. 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. A list of compatible Web browsers may be found on the Support Portal. Theta Lake is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such browser, 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.

4.2. 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.

4.3 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 for account administration. 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.

4.4. Responsibility for User Activity. Customer shall be responsible for all activities undertaken by Customer’s employees, affiliates, agents, or others to whom it provides access in connection with their use of the Services, as well as for any failure to comply with any relevant law or regulation including, but not limited to, copyright law for content submitted into the Service by Customer. Customer is jointly and severally liable for its affiliates, agents, or other third-parties to whom it provides access to the Service.

4.5. Third Party Services. The Service may allow Customer to interface with a variety of third-party software or services obtained separately by Customer. 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.

4.6. Self-Service Data Export. At any time, Customer may export data from the Service to Customer’s AWS S3 bucket, Azure Blob container, or O365 account. Customer can manage export integrations directly in the Service's policy settings.

5. THETA LAKE RESPONSIBILITIES

5.1. Service Level Commitment; Support. Theta Lake will provide the Service in conformance with the Service Level Agreement, attached hereto as Exhibit A.

5.2. Security. Theta Lake shall maintain administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data, including but not limited to: (a) backup, disaster recovery, and incident response procedures; (b) encryption of data in transit and at rest; (c) firewalls and access controls; (d) a vendor management policy and program to assess and monitor risk of Theta Lake’s vendors; and (e) using a SOC2-certified, or equivalent, data center. Theta Lake will conform with security protocols which are further described in Theta Lake’s most recently completed Audit Report, the most recent version of which is made available to Customers on Theta Lake’s Support Portal. During the Term, Theta Lake shall not materially diminish the protections provided by the controls set forth in Theta Lake’s then-current Audit Report.

5.3. 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 workmanlike manner in material accordance with the scheduling criteria agreed to by the parties and set forth on the Order Form.

6. 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, 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 applicable.

7. CONFIDENTIALITY

7.1        Definition. Confidential Information means: (a) Customer Data; (b) the Service, documentation and the terms and conditions of these Enterprise Terms of Use and all Order Forms, including pricing; (c) each party’s technical and business information (including but not limited to hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business and marketing plans or opportunities, finances, vendors, penetration test results and other security information, support information and metrics, and third party audit reports and attestations) that is designated by the disclosing party as confidential, and (d) any other information the receiving party should reasonably know is confidential given the nature of the information and circumstances of disclosure.

7.2        Use, Limitations. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A party shall not: (i) disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, except with the disclosing party’s prior written permission; and (ii) disclose or make the other party’s Confidential Information available to any party, except those of its employees, agents, or advisors that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement.

7.3        Exclusions. Confidential Information shall not include any information that (a) is or becomes generally known to the public, other than as a result of the act or omission of the receiving party; (b) were rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party; or (d) was independently developed by a party without breach of any obligation owed to the other party. If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it.

8. PRIVACY

8.1        Privacy Policy. Theta Lake shall at all times comply with the terms of the Theta Lake Privacy Policy. Theta Lake will not sell Customer Data for any purpose.

8.2        Export or Deletion of Customer Data. 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 Service. Theta Lake will promptly notify Customer if it receives any requests to locate, update, correct, or delete Customer Data.   

8.3        DPA. To the extent that Theta Lake processes any personal data (as defined in the DPA) on Customer’s behalf in the provision of the Service, the terms of the DPA shall apply and the parties agree to comply with such terms. For purposes of any applicable Standard Contractual Clauses (as defined in the DPA), Customer is the data exporter and Customer's signing of or entering into this Agreement shall be treated as signing of the Standard Contractual Clauses and their Appendices.  Theta Lake maintains a list of its sub-processors, with whom it has executed a relevant DPA, on its support portal.

9. PAYMENT OF FEES; TAXES

Fees for the Service are due and payable to Theta Lake as set forth on the Order Form. 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. Invoices 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 higher, 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 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.

10. TERM; TERMINATION

10.1      This Agreement. The term of this Agreement shall begin on the Effective Date and continue until terminated in accordance with this Section 10. 

10.2      Services. Customer’s annual or multi-year term will commence on the Services Start Date and shall continue as specified in the Order Form (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. 

10.3      Termination. In addition to any other remedies it may have, Theta Lake may terminate Customer’s use of the Service if Customer breaches any of the terms or conditions contained herein and fails to cure such breach within thirty (30) days following notice thereof. If Customer is in material breach of this Agreement, Theta Lake reserves the right to immediately suspend access to the Service until such breach is cured. 

10.4      Effect of Termination. 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. Customer may export its data at any time using the Service’s export feature.

11. INTELLECTUAL PROPERTY

11.1      Customer Data. As between Theta Lake and Customer, Customer owns its Customer Data. Customer grants to Theta Lake, its Affiliates, subsidiaries, and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data, as reasonably necessary for Theta Lake to provide and maintain the Service in accordance with this Agreement. Subject to the limited licenses granted herein, Theta Lake acquires no right, title or interest in any Customer Data. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data.

11.2      Theta Lake Ownership of the Service. Except for the rights expressly granted under this Agreement, Theta Lake retains all right, title, and interest in and to the Service, documentation, reporting templates, reporting tools, and any related professional services, including all related Intellectual Property Rights inherent therein. If Customer purchases professional services, Theta Lake grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use the professional services solely for Customer’s use with the Service. No rights are granted to Customer hereunder other than as expressly set forth in these Enterprise Terms of Use.

11.3      Feedback. Theta Lake shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use Feedback or incorporate into its products and services. Theta Lake shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.

11.4      Statistical Usage Data. Theta Lake owns the Usage Data derived from the operation of the Service. Nothing herein shall be construed as prohibiting Theta Lake from utilizing the Usage Data, or the Customer Data in an irreversibly de-identified, anonymized, and aggregated form, for purposes of providing and maintaining, delivering, and/or improving the Service, any products or services used to deliver the Service, and Theta Lake’s business; provided that any data so used shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer to any third party.

12. WARRANTIES

12.1      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.

12.2      Customer. Customer warrants that a) it is a company in good standing and duly authorized to conduct business it the state of its incorporation; b) that the individual signing this Agreement on behalf of Customer is authorized to do so, c) the execution of this Agreement does not violate any other agreement to which the Customer is a party, and that d) the Customer Data does not infringe on the Intellectual Property Rights of any third party, does not violate any laws, and does not contain any malicious code or other disabling devices.

13. 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 SERVICE. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE IS 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.

14. 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 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). 

EXCEPT WITH RESPECT TO SECTION 15.2 (INDEMNIFICATION BY CUSTOMER), EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS BROUGHT (E.G., CONTRACT, TORT, OR OTHERWISE), WILL NOT EXCEED THE TOTAL FEES ACTUALLY RECEIVED BY THETA LAKE FROM CUSTOMER FOR THE APPLICABLE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT FROM WHICH THE DAMAGES AROSE.

15. INDEMNIFICATION

15.1. By Theta Lake. Theta Lake shall, at its own expense and subject to the limitations set forth in this Section, indemnify Customer from and against any and all Claims brought by third parties alleging that the Service, as used in accordance with this Agreement and any documentation provided by Theta Lake, infringes such third party’s copyrights, trade secrets or trademarks and shall hold Customer harmless from and against any losses to the extent based upon such a Claim.

Excluded from the above indemnification obligations are Claims arising from (a) use of the Service in violation of these Enterprise Terms of Use or applicable law, (b) use of the Service after Theta Lake notifies Customer to discontinue use because of an infringement claim; (c) modifications to the Service not made by Theta Lake or its designated agent; or (d) use of the Service in combination with any software, application or service made or provided other than by Theta Lake.

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 to 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.

15.2. By Customer. Customer shall, at its own expense and subject to the limitations set forth in this Section, indemnify and defend Theta Lake from and against any and all Claims arising out of Customer’s breach of this Agreement, or Claim that arises from the actions of Customer’s employees or agents in connection with their use of the Service, and shall hold Theta Lake harmless from and against liability for any liability, damages, and costs (including without limitation reasonable attorneys’ fees) to the extent based upon such Claims.

15.3. 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.

16. CLOUD SERVICE PROVIDERS

Theta Lake uses Cloud Service Providers to provide the Service.  Theta Lake agrees to the following with respect to the Cloud Service Providers: a) Theta Lake will, upon request, advise Customer of the location of the relevant Cloud Service Provider used for provision of the Service under these Enterprise Terms of Use; b) Theta Lake shall obtain from the Cloud Service Providers and review, on an annual basis, copies of their SOC 2 reports or similar; and c) In the event that material deficiencies directly impacting the Service are identified in Cloud Service Provider’s SOC 2, Type 2 or similar Reports, Theta Lake will investigate, prioritize, and remediate such material deficiencies directly impacting the Service through appropriate compensating controls, to the extent required to continue providing the Services.

17. PARTNER ORDERS

17.1.     Partners Generally. Pursuant to a separate agreement between Customer and a Theta Lake Partner, including the applicable Partner Agreement, Customer may procure from such Theta Lake Partner certain products or services to be provided by Theta Lake. In such event, these Enterprise Terms of Use specify the terms and conditions under which such products or services will be provided by Theta Lake, apart from the fees and payment schedule specified in such separate Partner Agreement.

17.2.     Partner Agreements. Notwithstanding anything to the contrary in these Enterprise Terms of Use, if Customer acquires a subscription to the Service or obtains any professional services through a Theta Lake Partner, then: (a) Customer shall pay the Theta Lake Partner all applicable fees in accordance with the Partner Agreement; (b) the Partner Agreement is between Customer and the Theta Lake Partner, and is not binding on Theta Lake, and any disputes related to the Partner Agreement shall be handled directly between Customer and the Theta Lake Partner; and (c) any claims for refunds or credits hereunder, shall be submitted by Customer to the Theta Lake Partner. In the event of any conflict between these Enterprise Terms of Use and a Partner Agreement, these Enterprise Terms of Use shall govern as between Theta Lake and Customer.

18. MISCELLANEOUS

18.1. Governing Law. These Enterprise Terms of Use shall be governed by the laws of the State of California without regard to its conflict of laws provisions. 

18.2. Severability. If any provision of these Enterprise Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Enterprise Terms of Use will otherwise remain enforceable and in full force and effect. 

18.3. Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties, provided, however, either party may assign this Agreement without such consent to a successor in interest. For this purpose, “successor” means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of either party.

18.4. Use of Name/Logo. Neither party may use the other party’s company name and logo for any purpose without the other party’s prior written consent.

18.5. 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: Legal

4 Fairoaks Court

San Mateo, CA 94403

With a copy to: [e-mail]

18.6. 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.

18.7. 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.

EXHIBIT A

THETA LAKE ENTERPRISE SERVICE LEVEL AGREEMENT AND TECHNICAL SUPPORT AGREEMENT

A. ENTERPRISE SERVICE LEVEL AGREEMENT

1. Preamble

This Theta Lake Enterprise Service Level Agreement and Technical Support Agreement (“SLA”) is incorporated by reference into the Theta Lake, Inc. Enterprise Terms of Use (the “Agreement”) between Theta Lake, Inc. and Customer, and governs the provision of the Services by Theta Lake to Customer pursuant to the Agreement. Theta Lake will not modify the terms of Customer’s SLA during the initial term of Customer’s subscription; however, if Customer renews its subscription, then the version of this SLA that is current at the time of renewal will apply for Customer’s renewal term.

2. Definitions.

“Applicable Service Fees” means the total fees actually paid by Customer for the Services delivered during the month in which a Service Credit is owed (whether as an invoice for that month or as a pro-rata portion of an annual fee).

“Downtime” means the total minutes in a month during which the Services specified in the Theta Lake Order Form (“Order Form”) are unavailable, excluding (i) Scheduled Maintenance; (ii) Emergency Maintenance and (iii) unavailability of the Services due to limitations described in Section 5 Limitations below.

“Emergency Maintenance” means the total minutes during which the aspects of the Services specified in the Order Form are unavailable to apply urgent patches or fixes or undertake other urgent maintenance activities to maintain the Services availability. Theta Lake will contact Customer and provide the expected start time and the planned duration of the Emergency Maintenance and if Theta Lake expects the Service to be unavailable during the Emergency Maintenance period.

“Scheduled Maintenance” means the time in which maintenance will take place on network, hardware, or other Service maintenance or upgrades may be performed. Scheduled maintenance can occur up to three times monthly from the hours of midnight to 3:00 AM in the time zone of Customer’s data center.

“Service” or “Services” refers to the Service Module(s) specified in the Order Form.


“Service Credit” is the percentage of the Applicable Service Fees credited to Customer following Theta Lake’s claim approval.

“System Availability” means the number of minutes in a given month during which the Service specified in the Order Form are available.

Terms capitalized but not otherwise defined in this Exhibit A shall have the meaning given them in the Enterprise Terms of Use.

3. Service Level Terms

Theta Lake warrants a 99.999% System Availability of Services as outlined in the Order Form contained within this Agreement, excluding Emergency Maintenance, Scheduled Maintenance, and as otherwise defined in Section 5 below.

System Availability Calculation:

If Theta Lake’s System Availability is less than 99.999%, and if Customer has fulfilled its obligations under the Agreement and this SLA, Theta Lake will provide Customer with a Service Credit for the month in which the failure to meet the System Availability has occurred. System Availability is calculated as follows:

The following equation shall apply: (A – B) / C = D; where the values equal:

A. Total number of minutes per calendar month

B. Downtime

C. Total number of minutes per calendar month, excluding Scheduled Maintenance, Emergency Maintenance, and unavailability based on the limitations described in Section 5 below

D. System Availability

Table 1. Monthly Service Credit

System Availability	Service Credit
Less than 99.999%	10%
Less than 98.0%	25%
Less than 95%	100%

4. Filing a Monthly Service Credit Claim.

If Theta Lake fails to meet the minimum monthly System Availability as described above, Customer may submit a claim for a Service Credit.

Customer must submit a claim to [e-mail] at Theta Lake that includes: (i) a detailed description of the Downtime; (ii) information regarding the duration of the Downtime; and (iii) descriptions of Customer’s attempts to resolve and/or notify Theta Lake of the Downtime at the time of occurrence. Theta Lake must receive the claim and all required information by the end of the calendar month following the month in which the Downtime occurred. For example, if the Incident occurred on February 15th, Theta Lake must receive the claim and all required information by March 31st.

Theta Lake will use its best efforts to process claims within forty-five (45) days of receipt. Customer must be in compliance with the Agreement in order to be eligible for a Service Credit. If Theta Lake determines that a Service Credit is owed to Customer, Theta Lake will issue such Service Credit.

If Customer purchased the Service from a Theta Lake Partner, as defined in the Enterprise Terms of Use, Customer will receive a service credit directly from the Theta Lake Partner and the Theta Lake Partner will receive a Service Credit directly from Theta Lake. Theta Lake will determine the amount of the Service Credit issued to the Theta Lake Partner based on the applicable Order Form.

5. Limitations

This SLA and any applicable Service Levels do not apply to any performance or availability issues:

1. That result from Customer or third-party hardware or software;
2. During pre-release, beta, and evaluation of the Services (as determined by the Parties);
3. That result from Customer’s unauthorized action or inaction or from Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Service or Customer’s network by means of Customer’s passwords or equipment;
4. That result from Customer’s failure to adhere to any required configurations, use supported platforms, and follow any policies for acceptable use;
5. That result from the unavailability of Theta Lake’s Cloud Service Providers;
6. That result from the unavailability of the platforms and software or API’s with which Theta Lake integrates including but not limited to collaboration and communication platforms such as Zoom, Webex, RingCentral, Microsoft Teams, Webex, etc. (collectively “Integrations”); and/or
7. That result from internet connectivity and/or network disruption outside of Theta Lake’s control.

B. TECHNICAL SUPPORT AGREEMENT

1. Support Hours

Global support is available on weekdays, excluding local holidays, Monday 1:00am – Friday 8:00pm PST (“Support Hours”).

Users can submit cases via email at any time at the following email address: [e-mail] Cases will be logged by a support representative for response by the appropriate support team.

Users can submit cases via telephone during Support Hours. Cases will be logged by a support representative for later response by the appropriate support team.

Main phone numbers as follows, complete list available on Help & Training: 1-650-242-3900. Telephone support is available in English.

2. Logging A Case

Users must log cases as follows:

1. For Severity Level 1 issues, as described below, send an email to [e-mail] or call the designated Theta Lake support number above.
2. For all other Severity Level issues, use the Support Tab in the Theta Lake application. After logging in, click “Support” from the navigation bar and then “Submit Request.” Provide the requested information and then click “Submit.” Users may also call Theta Lake support as described above.

Note: For assistance with Theta Lake password resets, Customers should use the “Forgot your password?” link on the login page or contact Customer’s Theta Lake system administrator. For assistance with Theta Lake usernames and lockouts, users should contact their system administrator. For security reasons, Theta Lake does not provide contact information for system administrators.

3. Reproducing Errors

Theta Lake must be able to reproduce errors in order to resolve them. Customer agrees to cooperate and work closely with Theta Lake to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate. Also, subject to Customer's approval on a case-by-case basis, users may be asked to provide remote access to their thetalake.com account and/or desktop system for troubleshooting purposes.

4. Escalation/Severity Levels

Reproducible errors that cannot promptly be resolved will be escalated to higher support tiers for further investigation and analysis. For the purposes of this SLA, “Correction Time” means the time until an issue has been corrected to return the Services to baseline functionality, including workarounds as a temporary corrective measure.  Issues will be generally categorized and handled according to an assigned severity level, as follows:

Table 2. Severity Level Description and Examples

Severity Level	Description and Examples	Response Time	Correction Time
Level 1 - Critical	Critical production issue affecting all users, including system unavailability and data integrity issues with no workaround available.	2 Hours	72 Hours
Level 2 - Urgent	Major functionality is impacted or significant performance degradation is experienced. Issue is persistent and affects many users and/or major functionality. No reasonable workaround available Also includes time-sensitive requests such as requests for feature activation or data export.	12 Hours	72 Hours
Level 3 - High	System performance issue or bug affecting some but not all users. Short-term work-around is available but not scalable.	24 Hours	96 Hours
Level 4 – Medium	Inquiry regarding a routing technical issue; information requested on application capabilities, navigation installation or configuration; bug affecting a small number of users. Reasonable workaround available. Resolution required as soon as reasonably practicable.	24 Hours	120 Hours

5. Excluded Items

The Theta Lake Support does not include any of the following:

1. Assistance with Theta Lake password resets. Users should click the “Forgot your password?” link on the login page or contact their system administrator.
2. Assistance with Theta Lake username. Users should contact their system administrator.
3. Assistance with Theta Lake lockouts due to incorrect login attempts. Users should contact their system administrator to unlock the account or wait for the lockout period to expire.
4. Assistance in developing user-specific customizations.
5. Assistance with non-Theta Lake products, services or technologies, including implementation, administration or use of third-party enabling technologies such as databases, computer networks or communications systems; or
6. Assistance with installation or configuration of hardware, including computers, hard drives, networks or printers.
   
   

7. Changes to Support

Theta Lake may change its support from time to time in its sole discretion; provided, however, that no such change shall materially diminish the level of support being provided to Customer. 

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