Agreement between Client and ThetaCore

Thetacore.com (https://www.thetacore.com/), including all of its related applications, dashboards, or platforms (individually and collectively, the “Website”) is owned and operated by ThetaCore, LLC (“ThetaCore”). The Website is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. By using, installing, or accessing the Website or Services (as defined below) or by signing or clicking to accept these Terms or any Order Form (as defined below) referencing these Terms, you agree to be bound by the following terms and conditions including ThetaCore’s Privacy Policy (together, these “Terms”, or this “Agreement”)

If you are using a ThetaCore Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

This Agreement includes and hereby incorporates by reference any Order Form executed between you and ThetaCore, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with ThetaCore concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 15.8 below.

1. Services.

1.1. Services. The ThetaCore Website is a service that provides data-driven behavior change through certain tools and any other services ThetaCore may offer from time to time (together with the Website, the “Service(s)”). Client will, from time to time, enter into an order for or otherwise click to accept or agree to an online registration form, which references this Agreement (“Order Form”) and details the Services ordered from ThetaCore and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation any usage or volume limits, numerical limits on Authorized Users, and descriptions of product feature levels) (the “Scope of Use”). Client may be provided the option to purchase certain Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Order Form. ThetaCore has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement, including any applicable Order Form.

1.2. Alteration of Order Form. Any amendments or modification to any existing Order Form must be agreed to in writing by the parties. ThetaCore has no obligation to perform any Services under the amended Order Form until the parties have agreed to the effect of such changes on the applicable Fees

1.3. Modification of the Services. ThetaCore reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting or discontinuing certain Bundle offers) temporarily or permanently. ThetaCore also reserves the right to replace certain Services and Bundles with functionally equivalent Services or Bundles, at its sole discretion. In the event ThetaCore makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Order Form, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term (as defined below).

1.4. Links to Third Party Websites/Third Party Services. The Services may contain links to other websites (“Linked Websites”). The Linked Websites are not under the control of ThetaCore and ThetaCore is not responsible for the contents of any Linked Website, including without limitation any link contained in a Linked Website, or any changes or updates to a Linked Website. ThetaCore is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by ThetaCore of the site or any association with its operators.

Certain services made available via the Services are delivered by third party sites and organizations. By using any product, service or functionality originating from the thetacore.com domain, you hereby acknowledge and consent that ThetaCore may share such information and data with any third party with whom ThetaCore has a contractual relationship to provide the requested product, service, or functionality on behalf of thetacore.com users and customers.

1.5. Additional Terms. Client’s use of certain Services may be subject to additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

2. Use Rights; Restrictions.

2.1. Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, ThetaCore grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any mobile application associated with the Services; and (b) access and use the Services, designated on Client’s Order Form solely for Client’s internal business purposes, but only in accordance with this Agreement, the applicable Order Form, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, ThetaCore makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal is prohibited. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations. The Service is controlled, operated and administered by ThetaCore from our offices within the United States. You agree that you will not use the ThetaCore content accessed through the Website in any country or in any manner prohibited by any applicable laws, restrictions, or regulations. In this Agreement, “Territory” means the United States, unless otherwise expressly set forth in Client’s Order Form.

2.2. Account Registration. Client will register for a ThetaCore account to access or receive the Services. Account information must be accurate, current, and complete, and will be governed by ThetaCore’s Privacy Policy (currently available at https://thetacore.com/#/privacy-policy) as may be amended from time to time. Client agrees to keep its account information up to date so that ThetaCore may send notices, statements and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to ThetaCore’s use of cookies in accordance with the terms of ThetaCore’s Privacy Policy. You are solely responsible for all use of the Services account. ThetaCore will not be liable for any loss or damage arising from unauthorized use of Client's account.

2.3. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees and contractors whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all applicable laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

2.4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, ThetaCore may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords or access credentials. Client must notify ThetaCore within 24 hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions

2.5. Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s website, are subject to ThetaCore’s Acceptable Use Policy (“Acceptable Use Policy”) (currently available at https://thetacore.com/#/aup) and such other terms as may be provided by ThetaCore from time to time, which includes ThetaCore’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy. ThetaCore does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use thetacore.com only with permission of a parent or guardian.

2.6. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense or provide access to the ThetaCore Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the ThetaCore Technology (or any portion thereof) into, or use it with or to provide, any site, product or service; (c) use the ThetaCore Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the ThetaCore Technology (which is deemed ThetaCore’s Confidential Information); (e) modify or create a derivative work of the ThetaCore Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any ThetaCore Technology or Services, except to the extent expressly permitted by applicable law and then only upon advance notice to ThetaCore; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the ThetaCore Technology other than as specifically permitted above; or (i) remove or obscure any proprietary or other notices contained in the ThetaCore Technology including in any reports or output obtained from the ThetaCore Technology.

2.7. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, ThetaCore may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage Services, integrations or features (“Beta Releases”) for the Subscription Term set forth in the applicable Order Form (if applicable). This Section and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 5 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Releases. ThetaCore may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH THETACORE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Beta Releases in your sole discretion. ThetaCore makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Beta Release will be released or will be available under the same commercial or other terms. ThetaCore may discontinue Beta Releases at any time, in our sole discretion, and decide not to make a Beta Releases generally available. Notwithstanding anything to the contrary herein, ThetaCore may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in ThetaCore’s sole discretion, without liability.

2.8 Third Party Accounts. You will be able to connect your ThetaCore account to third party accounts. By connecting your ThetaCore account to your third-party account, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third-party sites). If you do not want information about you to be shared in this manner, do not use this feature.

2.9 Electronic Communications. Visiting the Website or sending emails to ThetaCore constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Website, satisfy any legal requirement that such communications be in writing.

3. Client Data.

3.1. Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to any text, images or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, PHI or any Third-Party Content) (“Client Data”). “Customer Data” means data related to the identity, characteristics and activities of Customers, collected or submitted to the Services by Client or captured by the Services. To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA (defined below), “Client Data” also includes PHI. “Third-Party Content” means content, data or other materials that Client provides to the ThetaCore Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security standards as contained in 45 C.F.R. Parts 160 and 162, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160, all as may be amended from time to time. Client hereby grants ThetaCore a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs ThetaCore to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with this Agreement and ThetaCore’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly.

3.2. Monitoring. Client understands and agrees that ThetaCore, and any third-party platform(s) Client uses or accesses in connection with the Services, may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website, Services or third-party platform; to improve Client’s experience using the Website, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; and/or to make the Website, Services, or third-party platform more helpful or useful to Client and other users.

3.3. Aggregate/Anonymous Data. Client agrees that ThetaCore will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is ThetaCore Technology, which ThetaCore may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve ThetaCore’s products and services and to create and distribute reports and other materials). ThetaCore will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws. If Client and ThetaCore have entered into a BAA, ThetaCore will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement. “BAA” means a Business Associate Agreement, which a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).

3.4. Security. ThetaCore agrees to maintain physical, technical and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use or disclosure. If Client is a Covered Entity or Business Associate, as defined in HIPAA, ThetaCore and Client will agree to the terms of ThetaCore’s BAA, which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. ThetaCore takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.

3.5. Storage. ThetaCore does not provide an archiving service. During the Subscription Term, Client acknowledges that ThetaCore may delete Client Data no longer in active use. ThetaCore expressly disclaims all other obligations with respect to storage.

4. Client Obligations.

4.1. Warranty. Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Services in a manner that would violate or cause ThetaCore to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and The Family Educational Rights and Privacy Act. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to ThetaCore, or otherwise has legal rights to provide such Client Data, and Client Data and ThetaCore’s use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights; (b) ThetaCore’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide ThetaCore with any Customer, Client or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s authorized representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify ThetaCore immediately. Additionally, if an integration is included in the Services Client orders, Client grants ThetaCore the right to access Client’s Information or other systems directly or through a third-party service for the purposes of fulfilling ThetaCore’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting ThetaCore such right. ThetaCore will not be held liable for any consequences of false and/or inaccurate content submitted to or through the Services by Client, by its Authorized Users, or by any other user.

4.2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to obtain behavioral insight in its Authorized User, Customers, and other users. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation, and ThetaCore expressly disclaims any liability for Client’s non-compliance. ThetaCore reserves the right to suspend or terminate Client’s access to the Services if ThetaCore believes, in its discretion, that Client has violated this Section 4.

5. Availability of Services; Support.

5.1. Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors or defects in the facilities, hardware, software or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond ThetaCore’s reasonable control, the Services will be available for access via the Website 99.0% of the time during Mondays through Fridays of the applicable Subscription Term. Client’s sole remedy and ThetaCore’s sole liability for failure to meet such availability shall be support in accordance with Section 5.2.

5.2. Support. ThetaCore makes available web-based support through the Website. Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Order Form. Any support services are subject to this Agreement. ThetaCore may also provide onboarding, deployment, and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Order Form. ThetaCore’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.

6. Fees and Payment

6.1. Fees. Unless otherwise specified on the applicable Order Form, the Services are provided on an ongoing, per license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Order Form (“Subscription”). Client agrees to pay to ThetaCore the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees (if applicable), all as set forth in the applicable Order Form (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term, such Services will convert to a paid Subscription and Client agrees to pay ThetaCore the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Order Form, payment for all Fees is due within 30 days of the invoice date.

6.2. Payment of Fees. Unless otherwise specified in the applicable Order Form, all Subscription Fees will be paid annually in advance, though overage fees (if any) may be charged in arrears, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 1.3 (Modification of the Services) and 7.3 (Termination for Cause). If the payment method selected on the applicable Order Form is credit card, ACH, or direct debit, Client authorizes ThetaCore to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-review basis on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or ThetaCore terminate your Subscription in accordance with Section 7. You must cancel your Subscription before it renews to avoid billing of the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should ThetaCore be unable to process/receive the Fees when due and owing, payment shall be considered overdue. ThetaCore shall have the right to charge interest on all overdue amounts at the annual rate of 6%, compounded monthly, or the maximum lawful amounts, whichever is less. Additionally, after payment becomes overdue, ThetaCore shall have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations including using third-party services.

6.3. Taxes. ThetaCore’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies, whether domestic or foreign, other than taxes based on the income of ThetaCore. Client will make tax payments to ThetaCore to the extent amounts are included on ThetaCore’s invoices.

6.4. Annual Fee Increase. ThetaCore reserves the right to increase Fees for any Services, upon 60 days’ prior written notice, effective on the start date of your subsequent Subscription Term.

7. Term and Termination

7.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Order Form, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least 30 days before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to support@thetacore.com. If no Subscription start date is specified on the applicable Order Form, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Order Form, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by Section 7.3 (Termination for Cause).

7.2. Suspension of Services. ThetaCore may suspend Client’s access to the Services if: (a) Client’s account is overdue or (b) Client has exceeded its Scope of Use limits. ThetaCore may also suspend Client’s access to the Services or remove Client Data or disable Third-Party Products if it determines that: (i) Client has breached Section 2 (Use Rights; Restrictions) or Section 4 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Services. ThetaCore will have no liability for acting as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, ThetaCore will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.

7.3. Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. ThetaCore may also terminate this Agreement or any related Order Form immediately if Client breaches Section 2 (Use Rights; Restrictions) or Section 5 (Client Obligations), for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA (if applicable).

7.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Order Form: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related ThetaCore Technology) and delete (or, at ThetaCore’s request, return) any and all copies of any ThetaCore documentation, scripts, passwords or access codes and any other ThetaCore Confidential Information in Client’s possession, custody or control and (b) Client’s right to access any Client Data in the applicable Services will cease, and unless otherwise precluded by a BAA, ThetaCore may delete any such data in its possession at any time. If ThetaCore terminates this Agreement for cause as provided in Section 7.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

7.5. Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Use Rights; Restrictions); Section 3 (Client Data); Section 6 (Fees and Payment); Section 7 (Term and Termination); Section 8 (Confidential Information); Section 9 (ThetaCore Technology); [Section 10 (Third-Party Products and Integrations);] 11 (Indemnification); 12 (Disclaimers); 13 (Limitations of Liability); 14 (Dispute Resolution); and 15 (General).

8. Confidential Information

8.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors or subcontractors having a legitimate need to know (which, for ThetaCore, includes the subcontractors referenced in Section 14.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 8 and these recipients are bound to confidentiality obligations no less protective than this Section.

8.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

8.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

9. ThetaCore Technology

9.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of ThetaCore Technology. Client agrees that ThetaCore (or its suppliers) exclusively retains all rights, title and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“ThetaCore Technology”) provided by ThetaCore (which is deemed ThetaCore’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, ThetaCore exclusively owns and reserves all right, title, and interest in and to ThetaCore’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any End Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that ThetaCore at its option may make updates, bug fixes, modifications or improvements to the Services from time-to-time.

9.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to ThetaCore (collectively, “Feedback”), Client hereby grants ThetaCore a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits ThetaCore’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

10. Third-Party Products and Integrations.

ThetaCore may arrange with third-party providers, or facilitate Client making arrangements with third-party providers, that provide products or services in connection with the Services described in this Agreement. If Client elects to use applications, integrations, add-ons, software, code, online services, systems and other products not developed by ThetaCore (“Third-Party Products”) in connection with or otherwise made available through the Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. ThetaCore is not a party to any such terms and will not be liable thereunder. ThetaCore does not warrant or support Third-Party Products or Third-Party Content and disclaims all responsibility and liability for these items and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. ThetaCore is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.

11. Indemnification.

11.1. Indemnification by Client. Client will indemnify and hold harmless ThetaCore and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “ThetaCore Entities”) from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including your Customers); (d) any demand, dispute or issue (including without limitation fee disputes) between you and your Payment Processor (as defined in the applicable Additional Terms); (e) any Client Data; (f) ThetaCore’s use, as contemplated in this Agreement, of any information provided to ThetaCore by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s Warranties and Obligations; (h) any claim of a governmental entity or other party that you have violated any law, rule, or regulation; or, (i) if applicable, alleged breach or breach of Client’s obligations contained in the BAA (if applicable). Client also agrees to defend the ThetaCore Entities against these claims at ThetaCore’s request, but ThetaCore may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event ThetaCore assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client must not settle any claim without ThetaCore’s prior written consent if the settlement does not fully release ThetaCore from liability or would require ThetaCore to admit fault, pay any amounts or take or refrain from taking any action.

11.2. Indemnification by ThetaCore. ThetaCore will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) ThetaCore’s gross negligence or willful misconduct; or (ii) ThetaCore’s infringement, misappropriation, or violation of a third party’s intellectual property rights. ThetaCore also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. ThetaCore must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts or take or refrain from taking any action.

12. Disclaimers.

12.1. EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL THETACORE TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE THETACORE TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER THETACORE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THETACORE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THETACORE TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT THETACORE TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND THETACORE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. THETACORE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-THETACORE SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON THETACORE TECHNOLOGY OR THETACORE’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

12.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR THETACORE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE THETACORE ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. THETACORE DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY THETACORE TO ITS CLIENT(S) DOES NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

13. Limitations of liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THETACORE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THETACORE’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO THETACORE FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, THETACORE’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY THETACORE TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14. Dispute Resolution.

If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:

14.1. Mediation. The parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Utah Code § 78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between UUMA and this Agreement, the provisions in this Agreement will govern. Mediation must be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs. Mediation will occur in Salt Lake City, Utah.

14.2. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.

14.3. Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 13:

1. A request for an order of injunctive relief and any related incidental damages;
2. A request for an order to prevent the disclosure of or misuse of Confidential Information or Trade Secrets; and/or
3. Enforcement of Client’s payment obligations as set forth under Section 6.

14.4. Class Action Waiver. Any action under these Terms of Service will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and ThetaCore agree otherwise, a mediator, judge, court, or other judicial entity may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

15. General.

15.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that ThetaCore may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.

15.2. Notices. Any notice or communication to ThetaCore under this Agreement must be in writing. Notices to ThetaCore may be made by email at support@thetacore.com. ThetaCore may send notices to the e-mail addresses on Client’s account or, at ThetaCore’s option, to Client’s last-known postal address. ThetaCore may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on ThetaCore’s website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. ThetaCore is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

15.3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, ThetaCore may use Client’s name, logo and marks to identify Client as a ThetaCore Client on ThetaCore’s website and other marketing materials.

15.4. Subcontractors. ThetaCore may use subcontractors and permit them to exercise the rights granted to ThetaCore in order to provide the Services and related services under this Agreement.

15.5. Subpoenas. Nothing in this Agreement prevents ThetaCore from disclosing Client Data to the extent required by law, subpoenas, or court orders, but ThetaCore will use commercially reasonable efforts to notify Client where permitted to do so.

15.6. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

15.7. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, failure or reduction of power or telecommunications or data networks or services, or government act or order.

15.8. Amendments; Waivers. ThetaCore may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

15.9. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.

15.10. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable, void or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.

15.11. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.

15.12. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

15.13. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the ThetaCore Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect.

15.14. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.

15.15. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Utah and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement will be the state courts located in Salt Lake County or Utah County, Utah or the United States District Court for the District of Utah, and both parties submit to the personal jurisdiction of these courts.

15.16. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

15.17. Changes to Terms. ThetaCore reserves the right, in its sole discretion, to change the Terms under which thetacore.com is offered. The most current version of the Terms will supersede all previous versions. ThetaCore encourages you to periodically review the Terms to stay informed of our updates.

15.18. Contact Us. ThetaCore welcomes your questions or comments regarding the Terms:

ThetaCore LLC
3940 Traverse Mountain Blvd
Lehi, Utah 84043
support@thetacore.com