SaaS Agreement

Dealtale Terms of Service

These Dealtale Terms of Service (together with any Order Form, this “Agreement”) are entered into by and between Dealtale Ltd. (“Dealtale” or “us”) and the entity or person placing an order for or accessing the Dealtale Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (each an “Order Form”). If you are accessing or using the Dealtale Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Dealtale Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

1. Service. The “Dealtale Service” is a service platform and application for tracking the customer decision journey, as further described below and in the Documentation. The Dealtale Service acts as a central hub for Customer Data, allowing Customer to collect Customer Data from its selected sources (“Sources”), such as its own or third-party websites or properties, and send Customer Data and Customer Results (together, “Customer Content”) to Customer’s chosen destinations (“Destinations”), such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. The supported Sources and Destinations are identified in the Documentation. For Sources owned or controlled by Customers (“Customer Properties”), Customer enables the collection of Customer Data by implementing the Dealtale Service’s JavaScript, SDK or other code (“Dealtale Code”) on such Customer Properties. As further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Dealtale Service, as well as the types and content of Customer Content it shares between its Sources and Destinations.

   1.1. Access. Dealtale shall make access to the Dealtale Service available to Customer pursuant to the terms of this Agreement and the relevant Order Form during the Subscription Term. The Dealtale Service will be hosted by Dealtale and provided as a service.

   1.2. Use of the Dealtale Service. Any limitations on Customer’s scope of use of the Dealtale Service will be as set forth in the Order Form and in this Agreement. Dealtale will provide Customer access to the Dealtale Service solely by Users authorized by Customer. User accounts and passwords are specific to individual Users, and may not be shared among or by other Users. Customer administrators may reassign a User account during the Subscription Term, if a former User no longer requires access to or use of the Dealtale Service. Account registration information must be accurate, current and complete, and will be governed by Dealtale Privacy Policy. Customer will be responsible for all of its Users’ adherence to the terms of this Agreement. Customer shall keep confidential its user IDs and passwords for the Dealtale Service and remain responsible for any actions taken through its accounts.

   1.3. Customer Responsibilities. Customer will be responsible for (a) Users’ compliance with this Agreement, (b) the accuracy, integrity, and legality of Customer Content and the means by which it acquires and uses such Customer Content, (c) entering Customer Data into the Dealtale Service, (d) and determining the suitability of the Dealtale Service for Customer’s business and complying with any regulations and laws, (including, without limitation, export, data protection and privacy laws) applicable to Customer Content, and Customer’s use of the Dealtale Service, and (e) any compliance with any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Dealtale Service with any Source or Destination, Customer authorizes the Dealtale Service to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. In addition, in order to provide the Dealtale Service to Customer and improve integrations with Sources and Destinations, we may also disclose Customer’s status as a Dealtale Service customer and related technical Relationship Data and Usage Data to the providers of Customer’s Sources and Destinations.

   1.4. Acceptable Use; Restrictions. You will not (and will not permit your Users to): (i) violate the Acceptable Use Policy governing the Dealtale Service (“AUP”) or use the Dealtale Service other than in accordance with the Documentation; (ii) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code or non-public APIs of the Dealtale Service, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition; (iii) sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Dealtale Service to any third party except to the extent explicitly authorized in a signed writing by Dealtale; (iv) use the Dealtale Service, or permit it to be used, for purposes of evaluation, benchmarking or other comparative analysis without Dealtale’s prior written consent; (v) use the Dealtale Service to develop or offer or sell a potentially competitive product or service to any Dealtale product or service; or (vi) during any free trial period granted by Dealtale, use the Dealtale Service for any purpose other than to evaluate whether to purchase the Dealtale Service. Dealtale may terminate the access of the Dealtale Service to any User violating the AUP, and Dealtale and Customer shall cooperate to resolve any violation. Dealtale may update the AUP from time to time in a reasonable manner to prevent use of the Dealtale Service that Dealtale reasonably determines may be harmful to other users or may cause substantial liability to Dealtale.

   1.5. Security; Reviews. Dealtale shall implement administrative, physical, and technical safeguards to protect the security of the Dealtale Service and the Customer Content as set forth in the Security Addendum, and shall, without limiting the foregoing, maintain throughout the term of this Agreement certification to ISO/IEC 27001:2013 or equivalent/greater standard. We use independent third-party auditors to assess the Dealtale Service at least annually, as described in the following audits and certifications: SOC2 Type II (report available under NDA), ISO 27001, ISO 27701, ISO 27017 and ISO 27018.

   1.6. Business Continuity. Dealtale shall maintain an appropriate business continuity and disaster recovery plan, which will be reviewed and tested by Dealtale in commercially reasonable intervals. Dealtale shall notify Customer as soon as reasonably practicable in the event that Dealtale becomes aware of any development which adversely impacts (i) the availability of the Dealtale Service, (ii) Dealtale's ability to provide the Dealtale Service in accordance with this Agreement, or (iii) Dealtale's ability to comply with its obligation to implement and maintain a business continuity plan.

   1.7. Modifications; No Material Diminishment. We reserve the right to improve or otherwise modify the Dealtale Service or update the Security Addendum at any time subject to maintaining appropriate industry standards of practice relating to the provision and security of the Dealtale Service, and provided that any such modification does not materially diminish the core functionality or security of the Dealtale Service.

2. Data Protection; Compliance with Laws.

   2.1. Dealtale Service Compliance; Processing. Dealtale will provide the Dealtale Service in accordance with its obligations under laws and government regulations applicable to Dealtale’s provision of the Dealtale Service to its customers generally, including, without limitation those related to data protection and data privacy, without regard to Customer’s particular use of the Dealtale Service and subject to Customer’s use of the Dealtale Service in accordance with this Agreement. The terms of the Data Processing Addendum (the “DPA”) are hereby incorporated by reference and shall apply to the extent Customer Content includes Personal Data (as defined in the DPA).

   2.2. Customer Compliance. You represent and warrant to us that your use of the Dealtale Service will comply with all applicable laws, including without limitation any privacy, data protection and other laws applicable to your use of the Dealtale Service to process Personal Data, and with any applicable terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations.

   2.3. Relationship Data. We collect and process Relationship Data to (i) provide services and associated support to you; (ii) manage your account with us; (iii) obtain and process payments for our services; (iv) communicate with you about our services; (v) enforce the terms of this Agreement or other contractual terms; and (vii) as otherwise described in this Agreement or as permitted by applicable law. We may share Relationship Data with our affiliates and third party service providers for these purposes.

   2.4. Usage Data. We collect and process Usage Data to (i) provide services and associated support to you; (ii) manage and secure our technical infrastructure; (iii) develop and improve our products and services; (iv) provide customer and technical support to you; (v) communicate with you about your use of our services; (vi) enforce the terms of this Agreement or other contractual terms; and (vii) as otherwise described in this Agreement or as permitted by applicable law. We may share Usage Data with our affiliates and third party service providers for these purposes.

   2.5. Cooperation with Authorities. Subject to applicable law, Dealtale may disclose Customer Content if required by applicable law or regulation, including laws and regulations of the United States and other countries, or in the good faith belief that such action is necessary to: (a) comply with a legal obligation or in response to a request from law enforcement or other public authorities; (b) avoid material liability for Dealtale; or (c) act in urgent circumstances to protect the personal safety of any persons.

   2.6. Export. The Dealtale Service may be subject to export laws of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party or debarment list. You will not permit your users to access or use the Dealtale Service in a U.S. embargoed country or in violation of any U.S. export law.

3. Proprietary Rights.

   3.1. General. Dealtale retains all right, title and interest, including all intellectual property rights, in and to the Dealtale Service. In the event Dealtale prepares any modification of the Dealtale Service at Customer’s request, the parties may enter into a separate written professional services agreement. Unless the parties do so in advance in writing, Dealtale will retain all right, title and interest in and to any such modifications. As between you and us, you retain all ownership or license rights in Customer Content, which shall be deemed your Confidential Information (as defined below).

   3.2. Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Dealtale Service (“Feedback”). If you choose to offer Feedback to us, you hereby grant Dealtale a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to use, disclose, reproduce, license, sell or otherwise distribute, and utilize the Feedback we receive as we see fit, entirely without any obligation or restriction of any kind on account of intellectual property rights or otherwise. You also irrevocably waive in favor of Dealtale any moral rights which you may have in such Feedback pursuant to applicable law. We acknowledge that any Feedback is provided on an “as-is” basis with no warranties of any kind.

4. Payment.

   4.1. Fees and Payment. All fees for are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Subscription Terms, Customer will pay all fees at the end of the month and (ii) for annual Subscription Terms, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in this Agreement, all fees are non-refundable. We reserve the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Fees for any renewals shall be set at the then-current Dealtale Service list price, unless otherwise stated on the Order Form. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

   4.2. Overages. If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, we reserve the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.

   4.3. Overdue Charges. If any undisputed charge hereunder remains unpaid 30 days after its due date, Dealtale may, without limiting its rights and remedies, suspend Customer’s use of the Dealtale Service until such amounts are paid in full. Unless otherwise provided on an Order Form, fees specified on an Order Form do not include any Taxes, and Customer is responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on Dealtale’s net income.

5. Term and Termination.

   5.1. Term. This Agreement commences on the Effective Date and continues through the Subscription Term until all Order Forms hereunder have expired or have been terminated. The Subscription Term shall be as specified on the applicable accepted Order Form, and, unless otherwise specified on the Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Subscription Terms will automatically roll over month-to-month and annual Subscription Terms will automatically renew for additional 12-month periods).

   5.2. Termination by Customer or Dealtale. Either party may terminate this Agreement and any then-current Order Form prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for 30 days following written notice of the breach, (ii) ceases operation without a successor or (iii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

   5.3. Suspension of Access. Dealtale may suspend or terminate Customer’s access to the Dealtale Service immediately, without prior notice to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Section 1.3 (Customer Responsibilities) or Section 1.4 (Acceptable Use; Restrictions); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Dealtale Service. When practicable, Dealtale will use reasonable efforts to provide Customer with advance notice of the suspension. Unless this Agreement has been terminated, we will cooperate to restore your access to the Dealtale Service promptly after we verify that you have resolved the issue requiring suspension.

   5.4. Effect of Termination. Upon expiration or termination of this Agreement, the rights granted under this Agreement and any then-current Order Forms will be immediately revoked and Dealtale may immediately deactivate Customer’s account. Dealtale will not be obligated to keep Customer Data after the date of termination. Upon any expiration or termination of this Agreement, Dealtale shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Dealtale may retain copies of Customer Data in regular backups or as required by applicable laws, which will remain subject to the security standards in Section 1.5 (Security; Reviews). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

   5.5. Surviving Provisions. Sections 3, 6, 8, 9 and 10 shall survive termination or expiration of this Agreement.

6. Confidentiality.

   6.1. Scope. “Confidential Information” means information that one party provides to the other party during the term of this Agreement that is identified at the time of disclosure as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, for the sake of clarity excluding information governed by the Dealtale Privacy Policy.

   6.2. Confidentiality. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) limit access to any Confidential Information of the disclosing party, except (a) for those employees, representatives, or contractors of the receiving party who require access to the Confidential Information to enable receiving party to exercise its rights and obligations under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party; or (b) as disclosure may be required by law or governmental regulation, subject to the receiving party providing to the disclosing party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the receiving party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the disclosing party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes generally available to the public through no breach of this Agreement. The receiving party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The Dealtale Service source code of the Dealtale Service are Confidential Information of Dealtale or its licensors.

   6.3. Destruction. Within 60 days after a disclosing party’s request, the receiving party shall return or destroy the disclosing party’s Confidential Information; provided, however, that the receiving party shall be entitled to retain archival copies of the Confidential Information of the disclosing party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.

7. Warranties.

   7.1. Dealtale Warranties. Dealtale warrants that the Dealtale Service shall perform materially in accordance with the Documentation. If the Dealtale Service does not conform to the warranty specified above and before Customer pursues any other remedies, Customer must notify Dealtale in writing no later than 30 days after the breach of warranty. Dealtale agrees to use commercially reasonable efforts to cure such non-conforming portions of the Dealtale Service. Dealtale is not responsible for any non-compliance resulting from or caused by any (i) modifications made by anyone other than Dealtale or its agents or (ii) software not supplied by Dealtale. Customer’s sole and exclusive remedy for a breach of any of warranties contained in this Section shall be to terminate the Agreement for cause and, notwithstanding anything to the contrary in this Agreement, have Dealtale refund to Customer the pro rata unused portion of any prepaid fees.

   7.2. Reciprocal Warranty. Each party warrants to the other party that it has the legal power and authority to enter into this Agreement.

   7.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE DEALTALE SERVICE IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, DEALTALE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE DEALTALE SERVICE WILL BE COMPLETELY UNINTERRUPTED OR ERROR-FREE, NOR DOES DEALTALE WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT IN THE DEALTALE SERVICE WITHOUT LOSS.

   7.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: BETA SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER BEARS THE RISK OF USING THE BETA SERVICES. DEALTALE GIVES NO EXPRESS OR IMPLIED WARRANTIES, GUARANTEES OR CONDITIONS RELATED TO THE BETA SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, DEALTALE EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. Third Party Claims.

   8.1. Indemnification by Dealtale. Dealtale shall, at its expense, (a) defend or settle any third party claims, actions and demands brought against Customer and its officers, directors, employees or agents, where the third party claimant expressly asserts that (i) the Dealtale Service infringes such third party’s trademarks, copyrights or US patents, or (ii) Dealtale misappropriated such third party’s trade secrets in the development of the Dealtale Service; and (b) pay damages, if any, finally awarded by a court of competent jurisdiction against Customer indemnified parties or agreed upon in settlement by Dealtale (including other reasonable out-of-pocket costs incurred by Customer, including reasonable attorneys’ fees, in connection with enforcing this Section 8.1), subject to the exclusions (1)-(4) set forth below. Dealtale has no obligation to Customer under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) third party Software or Customer Content, (2) modifications where the Dealtale Service would not infringe (including by way of example, modifications made by Customer, but excluding modifications made by Dealtale or its agents), (3) combination of the Dealtale Service with other software, processes or materials where the Dealtale Service would not infringe except for such combination, or (4) Customer’s use of the Dealtale Service not in accordance with this Agreement or the Documentation.

   8.2. Sole Remedy for Infringement of Intellectual Property Rights. In the event that Dealtale believes the Dealtale Service, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section applies, then Dealtale may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using the Dealtale Service or any applicable part thereof, (2) replace the Dealtale Service, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify the Dealtale Service, or infringing part thereof, so as to make it noninfringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Dealtale Service, and, notwithstanding anything to the contrary in this Agreement, have Dealtale refund to Customer the pro rata unused portion of any pre-paid service fees. This Section states Dealtale’s sole liability to, and Customer’s exclusive remedy for, infringement claims of any kind in connection with the Dealtale Service or services delivered under or in connection with this Agreement.

   8.3. Indemnification by Customer. Customer shall at its expense (a) defend or settle any third party claims, actions and demands brought against Dealtale and its officers, directors, employees and agents; and (b) pay all damages, if any, finally awarded against the Dealtale indemnified parties or agreed upon in settlement by Customer (including other reasonable out-of-pocket costs incurred by Dealtale, including reasonable attorneys’ fees, in connection with enforcing this Section) arising from: (i) Customer’s breach or violation of Customer’s responsibilities under Sections 1.3 or 1.4, (ii) claims that Customer Content or use thereof in the Dealtale Service infringes or violates the rights of a third party, or (iii) claims that Customer’s or its Users’ use of the Dealtale Service or services in violation of this Agreement infringes or violates the rights of such third party.

   8.4. Indemnification Procedures. The party entitled to seek coverage pursuant to this Section (the “Indemnified Party”) shall: (a) promptly notify the other party obligated to provide such indemnification (the “Indemnifying Party”) in writing of any such claim; (b) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent); and (c) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense.

9. Limitation of Liability.

   9.1. Limitation on All Damages. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 1.4 AND CUSTOMER’S OBLIGATIONS TO PAY FEES UNDER ANY ORDER FORM ISSUED UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO DEALTALE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.

   9.2. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE).

   9.3. NOTWITHSTANDING ANYTHING CONTAINED ABOVE, ANY LIABILITY RELATING TO SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY BETA SERVICES OR DURING A FREE TRIAL PERIOD, WILL BE LIMITED TO FIFTY US DOLLARS (USD $50).

10. General.

    10.1. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or to a wholly owned subsidiary or parent entity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void.

    10.2. Relationship of the Parties. Dealtale and Customer are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

    10.3. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.

    10.4. Choice of Law; Arbitration. This Agreement is governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be in Santa Clara County, California, United States. The language to be used in the arbitral proceedings will be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by a certified English translation. Service of any request for arbitration shall be made in accordance with the Rules and any service upon or communications to any party may be made in the manner set out for the sending of notices under this Agreement. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, in accordance with the confidentiality provisions of this Agreement, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

    10.5. Notice. Notices regarding this Agreement or the Dealtale Service in general may be given by electronic mail to Customer’s e-mail address on record with Dealtale or within the Dealtale Service. Unless notified in writing of a change of address, you will send any required notice to Dealtale Ltd., c/o Vianai Systems, Inc., 1661 Page Mill Road, Suite B, Palo Alto, CA 94304, Attention: VP of Legal Operations. Any required notice under this Agreement will be deemed given when sent by electronic mail or when delivered by nationally recognized overnight delivery service or recorded prepaid mail.

    10.6. 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, pandemic, Internet backbone outages, 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, third-party cloud service providers, or power systems not within such party’s reasonable control, and denial of service attacks.

    10.7. Entire Agreement. This Agreement and any Order Forms represent the entire agreement of the parties concerning its subject matter and is intended to be the final expression of their Agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. All terms of Customer purchase orders are hereby rejected. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Dealtale regarding future functionality or features. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. No amendment or waiver of any provision of this Agreement or an Order Form shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Customer and Dealtale or as set forth in this Section 10.7.

    10.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

    10.9. Publicity. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Dealtale Service to other potential customers and to use of Customer’s name and logo on the Dealtale Service’s web site and in Dealtale Service promotional materials. Customer agrees that we may disclose Customer as a customer of the Dealtale Service.

11. Definitions.

    11.1. “Beta Service” means any Service (or feature of a Service) that is designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that we in our sole discretion offer to Customer, and Customer in its sole discretion elects to use.

    11.2. “Customer Data” means any data that Customer submits to the Dealtale Service, including data that it collects from Customer Properties or retrieves from other Sources through the Dealtale Service, including as may be incorporated in any Customer Results. Customer Data does not, however, include any Dealtale or third-party templates, technology or data.

    11.3. “Documentation” means the documentation related to the Dealtale Service made available by Company to Customer currently available in the Dealtale Documentation, as may be updated from time to time.

    11.4. “Customer Results” means any output Customer or its Users generate from their use of the Dealtale Service, excluding any aggregated and de-identified data that may be generated from Customer Results in connection with the Dealtale Service.

    11.5. “Relationship Data” means any data that we receive about you in connection with creating and managing your account with us, such as contracting and licensing details and name and work contact details of company representatives who manage your account or business relationship with us.

    11.6. “Security Addendum” means the Security Addendum, as may be updated from time to time.

    11.7. “Subscription Term” means the period of time which Customer may access the Dealtale Service as set forth in an Order Form and this Agreement.

    11.8. “User” means an individual employee, contractor or agent of Customer acting for the sole benefit of Customer who is authorized to use the Dealtale Service that has been purchased and who has been given a user identification and password.

    11.9. “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.

    11.10. “Usage Data” means any data (other than Customer Content) relating to use of the Dealtale Service by you or your Users, such as user name, activity records, date and time stamps, type of browser and systems that are used and/or accessed, IP address, licensing, system and service performance data, and queries or other information you or your Users input into the Dealtale Service to direct how the Dealtale Service processes Customer Data, such as the code and any libraries (including third-party libraries) utilized within the Dealtale Service.

For previous versions of these terms of service, please contact [email protected].