Theta Lake Master Services Agreement

This Master Services Agreement (“Agreement”) is made between Theta Lake, Inc. (“Theta Lake”) and Customer (defined below) and governs the Customer’s use of the Theta Lake Assets (as defined below). 

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the date where such person or entity executes an Order Form (“Effective Date”). Theta Lake reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Theta Lake Asset(s).

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE THETA LAKE ASSETS. THE THETA LAKE ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Theta Lake have executed a written agreement governing Customer’s access to and use of the Theta Lake Assets as a Theta Lake customer, then the terms of such signed agreement will govern and will supersede this Agreement. The parties agree as follows:

1. Definitions.
   1. “Affiliate(s)” means any entity that now or hereafter Controls, is Controlled by, or is under common Control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such Control exists.
   2. “Audit Report” means a SOC2 report (i.e., 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) or other similar independent third-party reports relating to matters substantially similar to the SOC2.
   3. "Authorized User" or "User" means one individual (no concurrent usage with other users is permitted), whether for themself or on behalf of their entity, that are authorized by Customer to use the Service.
   4. “Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Theta Lake the Usage Data and Anonymized Data; and (ii) with respect to Customer, the Customer Data, Reports and Output. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
   5. “Control” means: (i) direct or indirect ownership or control (now or hereafter) of more than fifty percent (50%) of the outstanding shares or securities (representing the right to vote for the election of directors or other managing authority); or (ii) in the case of a company or other entity which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, direct or indirect ownership or control of more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such corporation, company or other entity.
   6. "Customer Data" means all data provided by, or on behalf of, Customer in connection with or by means of the Service, including any Personal Data as that term is defined under the DPA or as otherwise set under applicable laws. Notwithstanding anything to the contrary in this Agreement, Customer Data does not include Usage Data.
   7. "Data Processing Agreement" or "DPA" means a Data Processing Agreement executed in writing between the parties and if none, Theta Lake’s Data Processing Agreement (available at: Data Processing Addendum).
   8. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software and/or Service, as may be provided or made available by Theta Lake to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
   9. "Malicious Code" means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service to cease functioning; (ii) damage or corrupt any Theta Lake owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
   10. "Order Form" means each order document executed in writing between the parties for the purchase of a subscription to the Service.
   11. “Output” means output generated by the Service by processing Customer Data.
   12. "Preview Features" means any Service features, functionality or services which Theta Lake may make available to Customer to try at no additional cost, and which is designated as preview, beta, trial, non-production or another similar designation.
   13. "Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Theta Lake in its sole, but reasonable, discretion.
   14. “Quantity(ies)” means a number of Theta Lake product and/or services entitlements specified in an Order Form.
   15. “Report(s)” means a report generated by the Service, upon Customer’s request, based upon Customer Data and containing Output (e.g., a conversation audit report).
   16. "Service" means Theta Lake's proprietary solution offered as a software-as-a-service providing digital communications governance and archiving capabilities for modern collaboration and communication platforms which includes Theta Lake’s software that Theta Lake develops and maintains in order to provide the Service, including the Preview Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof.
   17. "Subscription Period" is the length of the subscription specified in the Order Form.
   18. "Support" means the support terms for the Service set forth in Section 3(b) below.
   19. “Support Portal” means: https://thetalake.zendesk.com/hc/en-us.
   20. “Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
   21. “Theta Lake Assets” means the Service and Documentation.
   22. “Theta Lake Partner” means an authorized reseller or distributor of the Service.
   23. “Usage Data” means metrics and other related performance telemetry data collected by Theta Lake pertaining to Customer’s interaction with the Service, anonymized and aggregated by Theta Lake, which includes, but is not limited to, performance of the Service, metrics, and other measures of Customer’s use of the Service and its operation. Usage Data is not Customer Data and does not consist of Customer Personal Data (as defined in the DPA).
2. Grant of License to the Service; Restrictions.
   1. Grant of License to the Service. Subject to the terms of this Agreement and the applicable Order Form, Theta Lake grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Period, solely for Customer's internal business operations up to the number of Quantities specified on the Order Form, to use the Service solely in accordance with the Documentation, this Agreement and the applicable Order Form. Customer may permit its Affiliates’ employees and authorized contractors to use the Services, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Service by such individuals will be for the sole benefit of Customer.
   2. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Theta Lake Assets; (ii) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without Theta Lake's prior written consent; (iii) share any Theta Lake issued access credentials with any third party; (iv) resell, lease or time-share the Service with or to any third party; (v) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Service; (vi) modify, adapt, or translate the Service or remove or modify any proprietary markings or restrictive legends placed on or within the Theta Lake Assets; (vii) make copies, store, or archive, any portion of the Theta Lake Assets without the prior written permission of Theta Lake; (viii) use the Theta Lake Assets in violation of any applicable law; (ix) introduce, any Malicious Code into the Service; or (x) exploit the Service in any unauthorized manner including by means of security or vulnerability testing, without the prior written consent of Theta Lake, or circumventing any process Theta Lake has put in place to safeguard the Service, or by using flood pings, denial-of-service attacks, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Service infrastructure (together, (i) through (xi) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
   3. Preview Features. Preview Features made available by Theta Lake are provided to Customer for testing purposes only. Theta Lake makes no commitments to provide Preview Features in any future versions of the Service. Customer is not obligated to use Preview Features. Theta Lake may immediately and without notice remove Preview Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Theta Lake does not provide Support for Preview Features. For clarity, all Preview Features are provided "AS IS" without warranty of any kind.
   4. Third-Party Applications. The Service may integrate with third party products, services, tools or applications that are not owned or controlled by Theta Lake ("Third-Party Application(s)"). Theta Lake does not license or endorse any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. THETA LAKE HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER.
3. Theta Lake Obligations.
   1. Service & Service Level Agreement (SLA). Theta Lake will provide the Service in conformance with this Agreement, the Order Form(s) and applicable Documentation. Theta Lake will be responsible for hosting the Service as necessary for the subscription to the Service specified in the Order Form. Theta Lake will make the Service available in conformance with the SLA (defined below) as set forth in Exhibit A hereto.
   2. Support. Unless stated otherwise in the applicable Order Form, if Customer experiences any errors, bugs, or other issues in its use of the Service, Theta Lake will provide “Support” as stated in Exhibit A hereto.
   3. Service Changes. Customer acknowledges that the Service is an on-line, subscription-based service, and that in order to provide improved experience, Theta Lake may make changes to the Service provided Theta Lake will not materially decrease the overall functionality of the Service.
   4. Professional Services. The parties may execute a Statement of Work for "Professional Services." Unless stated otherwise in the Statement of Work, Theta Lake will own any and all improvements to the Service made by Theta Lake that arise out of the Statement of Work and/or Professional Services. Any conflict between the terms of this Agreement and a Statement of Work will be resolved in favor of the Statement of Work but only with respect to the subject matter thereof.
4. Customer Obligations.
   1. Internet Connections. Customer will be responsible for obtaining Internet connections necessary for Customer to access the Theta Lake Assets.
   2. Self-Service Customer Data Export. At any time, Customer may export Customer Data, Output and Reports 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.
   3. Export Laws. The Theta Lake Assets are subject to export control laws and regulations. Customer may not access or use the Theta Lake Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Theta Lake Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
5. Data License & Protections.
   1. Data License. In connection with its use of the Service, Customer (including its Authorized Users) may transfer Customer Data to Theta Lake. Theta Lake uses Customer Data to: (i) provide the Service; (ii) generate Output and Reports for Customer via the Service; and (iii) create and develop Usage Data and Anonymized Data. Customer grants Theta Lake a limited license during each Subscription Period to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement and the DPA.
   2. Usage Data. While Customer uses the Service, Theta Lake will generate Usage Data. Theta Lake will use Usage Data to improve and develop the Service.
   3. Anonymized Data. “Anonymized Data” means data derived from Customer Data and created by the Service by removing all personal identifiers and any other information that could reasonably be used to identify an individual or Customer, whether directly or indirectly, which is then aggregated. Anonymized Data does not constitute Customer Data. While Customer uses the Service, Theta Lake will generate Anonymized Data. Theta Lake may use Anonymized Data to improve and develop the Service provided to the Customer. Customer may opt-out of Theta Lake’s creation and use of Anonymized Data by notifying Theta Lake via email at: [e-mail].
   4. Security & Privacy. Theta Lake maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data in accordance with Theta Lake’s "Security Protocols" located within Annex II to the DPA which will include, but not be limited to: (i) backup, disaster recovery, and incident response procedures; (ii) encryption of data in transit and at rest;  (iii) firewalls and access controls; (iv) a vendor management policy and program to assess and monitor risk of Theta Lake’s vendors; and (v) 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. DPA. Theta Lake will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.
6. Fees.
   1. Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Theta Lake within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.
   2. Overage & Price Increases. If Customer’s use of the Service exceeds the limitations set forth in the Order Form, Customer will be billed for such excess usage in accordance with Theta Lake’s then-current rates, and Customer agrees to pay the additional fees in the manner provided herein.
   3. Taxes. Customer will pay all applicable Taxes unless an appropriate tax exempt certificate is provided.
   4. Late Payments. In the event that Theta Lake does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Theta Lake may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); and/or (ii) suspend access to and terminate for failure to pay (if applicable) the Service pursuant to Section 7(b).
   5. Partner Agreements. If Customer has executed an order with a Theta Lake Partner, for the purchase of a subscription to the Service or for any professional services related to the Service, Customer will pay such Theta Lake Partner (and not Theta Lake) in accordance with the terms of such order form and in such case: (i) the terms of this Section 6 will not apply to this Agreement; and (ii) any claims for refunds or credits hereunder, shall be submitted by Customer to the Theta Lake Partner. Customer understands and agrees that if Customer does not pay the Theta Lake Partner in accordance with the applicable order form, Theta Lake will have the right to suspend Customer's right to use and access the Service and to terminate this Agreement upon notice to Customer.
7. Term & Termination.
   1. Term. The Term commences on the Service Start Date (set forth in the Order Form) and continues for the Subscription Period (“Initial Term”) and the Agreement will be automatically extended for additional terms for the Subscription Period (each, a “Renewal Term”) unless terminated as provided for in this Agreement. No less than ninety (90) days before the end of the Initial Term or any Renewal Term thereafter, either party may give the other party written notice of termination, in which case this Agreement will terminate at the end of the current Initial Term or Renewal Term. To the extent that there are multiple Order Forms under this Agreement, this Agreement shall be effective through the last date of the Subscription Period of the latest Order Form, or as otherwise extended in writing by the parties. “Term” means the Initial Term and each Renewal Term collectively. For clarity, each Subscription Period will be set forth in the applicable Order Form.
   2. Suspension Rights & Termination. Theta Lake may suspend Customer’s access to, or use of, the Service if: (i) any amount due to Theta Lake under any invoice is past due and such amount is not paid within 10 days of written notice from Theta Lake; or (ii) any use of the Service by Customer or Authorized Users that in Theta Lake's reasonable judgment threatens the security, integrity or availability of the Service. Theta Lake will: (A) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (B) where practicable limit the suspension based on the circumstances leading to the suspension; and (C) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
   3. Termination.  Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
   4. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Theta Lake will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Period as of the date of such termination.
   5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 15 (Miscellaneous, as applicable).
8. Confidentiality.
   1. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
   2. Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
   3. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
   4. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. Ownership.
   1. Theta Lake Property. Theta Lake owns and retains all right, title, and interest in and to the Theta Lake Assets, Usage Data and Anonymized Data. Except for the limited license granted to Customer in Section 2(a), Theta Lake does not by means of this Agreement or otherwise transfer any other rights to Customer.
   2. Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data, Reports and Output. Except for the licenses granted to Theta Lake in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Theta Lake.
   3. Feedback. Customer may provide comments, suggestions and recommendations to Theta Lake with respect to the Theta Lake Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Theta Lake may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing.
10. Representations & Warranties; Disclaimer.
    1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
    2. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Theta Lake; (ii) has all rights necessary to grant Theta Lake the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to Theta Lake by means of the Service or as required for Theta Lake’s provision of Support hereunder.
    3. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE THETA LAKE ASSETS AND PREVIEW FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. THETA LAKE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. THETA LAKE DOES NOT WARRANT THAT THE THETA LAKE ASSETS OR PREVIEW FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.
    4. AI Disclaimer. OUTPUT IS GENERATED BY MACHINE LEARNING CAPABILITIES OF THE SERVICE. ALL OUTPUT IS PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. THETA LAKE MAKES NO WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF OUTPUT. Customer acknowledges that due to the nature of the Service and artificial intelligence generally, Output may result in different Output from one use to the next. Output does not represent Theta Lake’s views. Output may contain errors and misstatements and may be incomplete or inaccurate. Customer is solely responsible for evaluating all Output for accuracy and appropriateness for Customer's use case, including by utilizing human review as appropriate, and Customer is solely responsible for all use of the Output, including any reliance on the accuracy, completeness, or usefulness of any Output.
11. Indemnification.
    1. By Theta Lake.
       1. Theta Lake will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Theta Lake will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Theta Lake Assets, including Customer's permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party.
       2. If Theta Lake becomes, or in Theta Lake’s opinion is likely to become, the subject of an infringement or misappropriation claim, Theta Lake may, at its option and expense: (a) procure for Customer the right to continue using the Theta Lake Assets; (b) replace the Theta Lake Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (c) modify the Theta Lake Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Theta Lake shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
       3. Theta Lake will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Theta Lake Assets or Theta Lake’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Theta Lake Assets or Theta Lake’s intellectual property rights, other than as expressly approved by Theta Lake that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
       4. THIS SECTION 11(A) STATES THETA LAKE’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
    2. By Customer. Customer will defend Theta Lake, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Theta Lake Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Theta Lake Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Theta Lake Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by Theta Lake under this Agreement or at Customer's request or direction, has violated any applicable law.
    3. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.

12. Limitation on Liability. 

    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
    2. EXCEPT WITH RESPECT TO UNCAPPED CLAIMS (AS DEFINED BELOW), IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY THETA LAKE FOR USE OF THE THETA LAKE ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

    THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.

    1. "Uncapped Claims" means any claim or liability associated with any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, intentional misconduct, or violation of the other party’s intellectual property rights.
13. Force Majeure. Except for Customer's payment obligations hereunder, neither Theta Lake nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action (each, a "Force Majeure Event"). For clarification, events caused by a party's own action are not Force Majeure Events. If a Force Majeure Event prevents Theta Lake from providing the Service for at least thirty (30) consecutive days, either of the parties may immediately terminate this Agreement and any Order Forms, by providing written notice to the other.
14. Customer Logo License. Customer grants Theta Lake the right to use Customer's name and logo on Theta Lake's website for the sole purpose of identifying Customer as a customer.
15. Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by both parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in San Diego County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above and with respect to a notice to Theta Lake an additional copy of such notice will be sent via electronic mail to [e-mail]. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.

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 Agreement between Theta Lake and Customer, and governs the provision of the Service 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.

1. “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).
2. “Downtime” means the total minutes in a month during which the Services specified in the 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.
3. “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.
4. “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.
5. “Service” or “Services” refers to the Product(s) specified in the Order Form.
6. “Service Credit” is the percentage of the Applicable Service Fees credited to Customer following Theta Lake’s claim approval.
7. “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 Agreement.

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:

1. Total number of minutes per calendar month
2. Downtime
3. Total number of minutes per calendar month, excluding Scheduled Maintenance, Emergency Maintenance, and unavailability based on the limitations described in Section 5 below
4. 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 via the Support Portal or to [e-mail] 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”).

2. Submitting A Case

Users may submit cases as follows:

1. Send an email to [e-mail].  

2. For Support cases during Support Hours in: (i) the United States, call 1-650-242-3900; and (ii) for the United Kingdom and rest of the world, call [phone]. Telephone support is available in English.

3. 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.”

Cases will be logged by a support representative for later response by the appropriate support team.

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	60 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

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.

6. 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.