These RecordPoint Terms of Service (“Terms of Service”) apply to your (“You” or “Customer”) use of the RecordPoint Platform (including all Modules) and all Professional Services provided by RecordPoint to Customer (together, the “RecordPoint Services”) under a Purchase Order or Statement of Work. These Terms of Service may be updated from time to time in RecordPoint’s sole discretion.

1. Definitions

The following capitalized terms when used herein have the following meanings.

1.1 “Agreement” means these Terms of Service and all Purchase Orders and Statements of Work executed between Customer and RecordPoint.

1.2 “Company” or “RecordPoint” means the RecordPoint legal entity appearing on Customer’s Purchase Order(s) and/or Statement(s) of Work.

1.3 “Confidential Information” means all confidential and proprietary information of a disclosing party disclosed by or on behalf of such party to the receiving party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, security-related information and policies, the terms and conditions of this Agreement (including pricing), business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding anything to the contrary, the Subscription Services, Documentation and the RecordPoint Platform are Confidential Information of RecordPoint. Confidential Information shall not include any information that:

• (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party;
• (b) was known to the receiving party without restriction prior to its disclosure by the disclosing party and without breach of any obligation owed to the disclosing party;
• (c) was independently developed by the receiving party without either use of or reference to any Confidential Information or breach of any obligation owed to the disclosing party; or
• (d) is received from a third-party without restriction and without breach of any obligation owed to the disclosing party.

1.4 “Customer Data” means all data and information that Customer or its authorized agents upload to or otherwise place under management with the RecordPoint Platform. For clarity, Customer Data does not include any metrics, information, telemetry, or other outputs generated by the RecordPoint Platform and/or Subscription Services.

1.5 “Documentation” means the RecordPoint product documentation relating to the operation and use of the Subscription Services including, but not limited to, the Service Descriptions, technical documentation, operating instructions, and update notes.

1.6 “Feedback” means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvements to the Subscription Services, the Platform or any other product or service provided by RecordPoint to Customer.

1.7 “Fees” means Subscription Fees, Professional Services Fees, and all other fees, charges, expenses and amounts owed by Customer to RecordPoint.

1.8 “Intellectual Property Rights” means any copyright, trademarks, design, patent, or trade secret rights.

1.9 “Module(s)” means those particular modules described in the Platform Service Description that are part of the Subscription Services and may be included on a Purchase Order.

1.10 “Prerequisites” means the required third-party software, hardware or other services that may be required of Customer to operate the Subscription Services, as defined in the RecordPoint Platform Service Description.

1.11 “Professional Services” means all services provided by RecordPoint to Customer other than access to Subscription Services, as may be described in a Statement of Work including, but not limited to, consulting services, support services, implementation services, and migration services.

1.12 “Professional Services Fees” means fees payable by Customer to RecordPoint for Professional Services, as set forth in a Statement of Work.

1.13 “Purchase Order” means a purchase order executed between RecordPoint and Customer that sets forth the Subscription Services being purchased and associated Subscription Fees.

1.14 “RecordPoint Platform” means the platform that enables RecordPoint to provide Customer with access to and use of the Subscription Services as contemplated by these Terms of Service.    

1.15 “Service Descriptions” means those written service descriptions (as referenced in a Purchase Order) that describe the capabilities of the RecordPoint Platform and all applicable Modules, as amended from time to time, in RecordPoint’s sole discretion.

1.16 “Subscription Fees” means the recurring annual fee payable by Customer to RecordPoint for access to the Subscription Services, as set forth in the applicable Purchase Order.

1.17 “Subscription Services” means access to the RecordPoint Platform and associated Modules further described in the RecordPoint Service Descriptions. The Subscription Services are provided to Customer on a subscription basis and made accessible to Customer via a URL designated by RecordPoint.

1.18 “Subscription Term” means the period during which Customer is authorized to use the Subscription Services as set forth in a Purchase Order.

1.19 “Transaction” mean any operation in the RecordPoint Platform that creates, updates, or deletes content and/or metadata for objects under management. Reads and configuration changes are not counted as a “Transaction.”  

1.20 “Virus” means code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, malware, and Trojan horses.

2. RecordPoint Obligations

2.1 Provision of the Subscription Services

RecordPoint will make available to Customer, and Customer is authorized to use, the Subscription Services during the Subscription Term as set forth in an applicable Purchase Order for Customer’s internal business purposes in accordance with the Agreement. The Subscription Services are subject to usage limits specified in the Purchase Order and Service Description(s). If Customer exceeds a contractual usage limit, RecordPoint may work with Customer to adjust the Subscription Fees set forth in the applicable Purchase Order and/or reduce Customer’s usage so that it conforms to the limits set forth in the Purchase Order. Notwithstanding the foregoing, RecordPoint may issue a subsequent invoice to Customer for usage that exceeds the limits in the applicable Purchase Order, and Customer shall pay such invoice in accordance with the terms herein.

2.2 Support; Availability

RecordPoint will make commercially reasonable efforts to make the Subscription Services available to Customer in accordance with the Service Level Policy shown on Exhibit A. The exclusive remedy available to Customer for a failure by RecordPoint to meet the service levels on Exhibit A is to receive service credits, as further described on Exhibit A.

2.3 Security

RecordPoint shall maintain a written information security program of policies, procedures, and controls (“Security Program”) governing the processing, storage, transmission, and security of Customer Data, as further detailed in the RecordPoint Platform Service Description. The Security Program shall include industry standard practices designed to protect Customer Data from unauthorized access, acquisition, use, disclosure or destruction. RecordPoint may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein.  

2.4 Audit Report

RecordPoint shall engage at its expense an independent firm to conduct, on a regular basis, an audit of RecordPoint’s operations with respect to the Subscription Services in accordance with the SOC 2 Type 2 reports (or substantially similar report of a successor auditing standard in the event the SSAE 18 auditing standard is no longer an industry standard), which shall cover RecordPoint’s security policies, procedures, and controls, all as further described in the RecordPoint Service Description.  

2.5 Insurance Program

RecordPoint maintains an industry standard insurance program to help manage risk that contains terms no less stringent than the following:

• (a) Commercial General Liability Insurance with minimum limits of U.S.$12,000,000 for both Public and Products Liability per occurrence and in the aggregate;
• (b) Umbrella Liability providing excess liability coverage in the minimum amount of U.S.$5,000,000 per occurrence, to supplement the primary coverage provided in the policies listed above;
• (c) Professional Liability Insurance (Errors and Omissions Insurance) for any civil liability compensation including claimant’s legal costs & expenses and defence costs from a claim arising from a Technology Wrongful Act; Privacy & Network Security Wrongful Act or Media Wrongful Act, which policy also includes cyber-liability insurance for financial losses including Business Interruption Loss, Data & System Recovery Costs and Cyber Extortion Damages, arising from destruction or corruption of data, including but not limited to privacy and data security breaches, Virus transmission, unauthorized access, denial of service and loss of income from network security failures, with minimum limits of U.S.$12,000,000;
• (d) Workers Compensation Insurance covering RecordPoint employees pursuant to applicable state laws, and at the maximum limits statutorily required for each such state; and
• (e) Commercial Crime Insurance including coverage for loss of money or loss or damage to security or property, resulting from criminal or fraudulent acts committed by RecordPoint’s employees, acting alone or in collusion with others and by third parties, and coverage for computer crime, with a minimum per event and annual aggregate limit of U.S.$1,200,000.

Upon request, RecordPoint shall furnish Customer with a certificate evidencing the coverages set forth above.

2.6 Breach Notification

RecordPoint shall report to Customer any unauthorized disclosure of, or access to, your Customer Data (“Breach”) in accordance with RecordPoint’s “Security Incident Management Policy.” RecordPoint shall share information about the nature of the of the Breach that is reasonably requested by Customer to enable Customer to notify any affected individuals, government agencies, and/or credit bureaus.

Customer has sole control over all of the content of Customer Data that it enters into or otherwise places under management with the RecordPoint Platform and is solely responsible for determining any applicable legal requirements with respect to whether to notify impacted individuals, applicable regulatory bodies, or enforcement commissions and for providing such notifications and other remedial actions in accordance with applicable laws and Customer’s internal policies.

The Parties agree that RecordPoint shall have no responsibility including, but not limited to, any financial responsibility, associated with Customer’s notification and remediation obligations under Customer’s contractual relationships or under applicable legal requirements, and Customer agrees not to take any action inconsistent with the foregoing.

In addition, Customer may not use RecordPoint’s name or identifying marks in connection with any Breach notifications without RecordPoint’s prior written consent, which shall not be unreasonably withheld.

3. Customer Obligations

3.1 Customer Responsibilities

Customer is responsible for monitoring all activity occurring under its user accounts. Customer shall ensure that it and its users abide by the Agreement, applicable Service Descriptions, and all laws, treaties and regulations applicable to Customer’s use of the Subscription Services. For clarity, the use rights set forth herein and in a Purchase Order apply only to Customer’s employees and on-site contractors for whom Customer shall be responsible to the extent of any non-compliance with or breach of the terms herein.

Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and shall notify RecordPoint promptly of any unauthorized access or use that it becomes aware of.

In addition, Customer is responsible for implementing and maintaining appropriate anti-virus and anti-malware protection on its equipment, devices, and across any services that Customer chooses to connect with or manage with the RecordPoint Platform. Customer acknowledges that in the ordinary course of business, RecordPoint does not have visibility of and does not access Customer Data, and therefore, Customer is solely responsible for complying with any applicable legal requirements in connection with utilizing the Subscription Services to manage, store and process such Customer Data.

3.2 Restrictions

Except as otherwise permitted under these Terms of Service, Customer shall not

• (a) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose or otherwise commercially exploit the Subscription Services;
• (b) copy, modify or make derivative works based upon the Subscription Services;
• (c) frame or mirror the Subscription Services on any other server or device;
• (d) access the Subscription Services for competitive purposes or use the Subscription Services for application service provider, timesharing or service bureau purposes, or any other purpose other than its own internal use;
• (e) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Subscription Services;
• (f) remove, obscure or modify a copyright or other proprietary rights notice in the Subscription Services or Documentation;
• (g) use the Subscription Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material;
• (h) use the Subscription Services to create, use, send, store, or run material containing software Viruses, worms, Trojan horses, or otherwise engage in any malicious act or disrupt the security, integrity, or operation of the Subscription Services or the RecordPoint Platform;
• (i) attempt to gain or permit unauthorized access to the Subscription Services or its related systems or networks; or
• (j) permit or assist any other party (including any user) to do any of the foregoing.

3.3 Source Systems; Prerequisites

Customer is solely responsible for procuring, managing, and maintaining subscriptions to all relevant third-party systems from which RecordPoint ingests data. In addition, Customer shall ensure that all Connectors are permitted under its agreements with all such third-parties.

Customer acknowledges that its agreements with third-party data sources may include use/license restrictions that are different from its RecordPoint use rights, and Customer shall ensure that all such agreements permit the use necessary for RecordPoint to provide the Subscription Services and Professional Services contemplated by the Agreement.

In addition, Customer is responsible for ensuring that all Prerequisites are met and in place for the duration of the Subscription Term, and to the extent Customer fails to meet any Prerequisite, RecordPoint may immediately terminate any affected Purchase Order or Statement of Work.

4. Fees; Invoicing

4.1 Billing and Payment of Fees

Customer shall pay Subscription Fees annually in advance for use of the Subscription Services. All payment obligations are non-cancellable, and all amounts paid are non-refundable except as otherwise specified in these Terms of Service. RecordPoint shall issue invoices to Customer as specified in a Purchase Order or a Statement of Work, and Customer agrees to pay such amounts not subject to a good faith dispute in accordance with the payment terms specified in such Purchase Order or Statement of Work.

All invoices are due within thirty (30) days of invoice date. To the extent Customer exceeds any of the use entitlements set forth in a Purchase Order, RecordPoint shall issue a true-up invoice, which shall be due in accordance with the terms herein.

If any invoice is more than thirty (30) days overdue, RecordPoint may, without limiting its other rights and remedies, suspend the Subscription Services and/or Professional Services until such invoice is paid in full. Customer agrees to pay RecordPoint in the currency specified in the Purchase Order.

If Customer believes in good faith that an invoice is incorrect, Customer must contact RecordPoint in writing within ten (10) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment credit. Any late payments are subject to interest at a compounding rate of 2% per month, and any costs incurred in collection efforts including, but not limited to, attorneys’ fees, shall be paid by Customer.

4.2 Taxes

RecordPoint’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for payment of all Taxes associated with the Subscription Services and Professional Services.

If Customer is legally entitled to an exemption from any sales, use or similar transaction tax, upon signing a Purchase Order or Statement of Work, Customer shall provide RecordPoint with a legally sufficient tax exemption certificate for each taxing jurisdiction, and RecordPoint shall not charge Customer any taxes from which it is exempt.

If any deduction or withholding is required by law, Customer shall notify RecordPoint and shall pay RecordPoint any additional amounts necessary to ensure that the net amount RecordPoint receives, after any deduction and withholding, equals the amount RecordPoint would have received if no deduction or withholding had been required. Upon request, Customer shall provide documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

5. Proprietary and Other Rights

5.1 RecordPoint’s Intellectual Property Rights

As between RecordPoint and Customer, all right, title, and interest in and to the Subscription Services, Documentation, and RecordPoint Platform (including all rights therein, and all derivatives, translations, modifications, and enhancements thereof) are, and shall remain, owned exclusively by RecordPoint notwithstanding any other provision in these Terms of Service, a Purchase Order, or Statement of Work hereunder.

This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Subscription Services, the RecordPoint Platform, or the Documentation. The RecordPoint name, logo and product names are trademarks of RecordPoint, and no right or license is granted to use them.  All rights not expressly granted to Customer are reserved by RecordPoint. RecordPoint alone shall own all right, title and interest in and to any Feedback provided by Customer or any third-party related to this Agreement and the Subscription Services.  

5.2 Customer Data

As between Customer and RecordPoint, Customer is responsible for and exclusively owns all rights, title, and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will continue to have all rights and consents necessary to allow RecordPoint to store and process all such data as contemplated by the Agreement.

Customer hereby grants to RecordPoint a royalty-free, fully paid, non-exclusive, sub-licensable, worldwide right and license to reproduce, use, process, transfer and store Customer Data solely for the purposes of performing RecordPoint’s obligations under the Agreement and any other activities expressly agreed to by Customer. To the extent Customer Data includes personally identifiable information (“PII”), Customer acknowledges and agrees that it is solely responsible for ensuring all legal requirements and necessary consents are met and obtained with respect to its use of the Subscription Services for such PII.

Furthermore, in the event of a material data security incident that involves Customer Data, Customer shall be solely responsible, financially and otherwise, for complying with any required notification and remediation requirements and other obligations with respect to such Customer Data including, but not limited to, PII; provided, that, RecordPoint shall provide reasonable assistance upon request.

5.3 Use of Aggregate Data

Customer agrees that as part of providing the Subscription Services, RecordPoint may collect, use, and disclose data derived from the use of the Subscription Services for service improvements, industry analysis, benchmarking, analytics and supporting Customer’s usage of the Subscription Services. All data disclosed will be in aggregate and anonymous form only and will not identify Customer or its specific users or its relationship to their supplies/vendors.

6. Confidential Information

6.1 Obligations

The receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement, except with the disclosing party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes.

6.2 Remedies 

Except as expressly provided in these Terms of Service, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of the confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

7. Warranties

7.1 RecordPoint Warranties

RecordPoint warrants, during the Subscription Term, that:

• (a) Customer’s production instance of the Subscription Services shall materially conform to the Documentation;
• (b) the functionality of the Subscription Services as of the date of the Purchase Order shall not materially decrease during the Subscription Term; and
• (c) all Professional Services shall be performed in a professional manner, consistent with industry standards.

7.2 Procedure

To submit a warranty claim under these Terms of Service, Customer shall:

• (a) reference that it is making a warranty claim under these Terms of Service, and
• (b) submit a support request to resolve the non-conformity. If the non-conformity persists without relief more than thirty (30) days after written notice of a warranty claim provided to RecordPoint, then Customer may terminate the affected Subscription Services, and RecordPoint, as its sole liability in connection with a breach of warranty, shall refund to Customer any prepaid Subscription Fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination.

Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Subscription Services that is made or caused by someone other than RecordPoint. The foregoing warranties and rights do not apply to any service level agreements under Exhibit A of these Terms of Service, which section shall govern all issues related to the service levels described therein.

7.3 Disclaimer of Warranties  

Except as expressly set forth in these terms of service, RecordPoint does not make any other representations, warranties, guarantees, as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the subscription services or the professional services, the RecordPoint platform, updates, documentation, support services and/or any other RecordPoint services provided or offered to customer. Except as expressly set forth herein, the services provided hereunder are provided strictly on an as-is basis and all conditions, representations, and warranties, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantibility, fitness for a particular purpose, title, non-infringement of third party rights, or any warranties arising from usage of trade, course of dealing or course of performance, are here by disclaimed to the maximum extent permitted by applicable law.

8. Indemnification 

8.1 RecordPoint’s Obligations

Subject to Section 8.3, RecordPoint shall

• (a) defend Customer, its officers, directors and employees against any third-party suit, claim or demand (each, a “Claim”) that alleges the Subscription Services used in accordance with the Agreement infringe any Intellectual Property Rights of such third party; and
• (b) pay any court ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs or reasonable attorneys’ fees, each to the extent payable to a third party, to the extent arising from such Claims. Notwithstanding the foregoing, if RecordPoint reasonably believes that Customer’s use of any portion of the Subscription Services is likely to be enjoined by reason of any Claims then RecordPoint may, at its expense and in its sole discretion:
  
  • (i) procure for Customer the right to continue using the Subscription Services;
  • (ii) replace the same with other products having substantially equivalent functions that are not subject to any Claims of infringement; or
  • (iii) modify the applicable Subscription Services so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the Subscription Services as set out herein or in the applicable Purchase Order.  

If (i), (ii), and (iii) above are not available on commercially reasonable terms in RecordPoint’s judgment, RecordPoint may terminate the affected Subscription Services and refund to Customer any pre-paid Fees for the remainder of the then-current Subscription Term. The foregoing indemnification obligation of RecordPoint shall not apply:  

• (1) if the Subscription Services are modified by any party other than RecordPoint, but solely to the extent the alleged infringement is related to such modification;
• (2) if the Subscription Services are combined with other non-RecordPoint products, applications, or processes, but solely to the extent the alleged infringement is related to such combination,
• (3) to the extent the Claim arises in connection with any unauthorized use of the Subscription Services or use that is not in compliance with these Terms of Service, the Purchase Order, any applicable laws, regulations and/or Documentation,
• (4) to any third party products, processes or materials that are not provided by RecordPoint, or
• (5) to any Claims arising as a result of the content of the Customer Data.

This section sets forth RecordPoint’s sole liability and customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.

8.2 Customer’s Obligations

Subject to Section 8.3, Customer shall

• (a) defend RecordPoint and its affiliates, and each of their officers, directors, employees and shareholders against any Claim that arises from or relates to
  
  • (i) Customer’s breach of the Agreement or failure to use the Subscription Services in accordance with these Terms of Service, the applicable Purchase Order, and all applicable laws;
  • (ii) Customer Data; or
  • (iii) Customer’s third-party vendors from which the RecordPoint Platform ingests or otherwise stores data on Customer’s behalf; and
• (b) pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorneys’ fees, each to the extent payable to a third-party, to the extent arising from such Claims.  

8.3 Process

Each party’s indemnity obligations are subject to the following:

• (a) the indemnified party shall promptly notify the indemnifier in writing of any Claims (provided, however, that the failure to give prompt notice shall not limit the rights to indemnification except to the extent that the indemnifier is materially prejudiced by such failure);
• (b) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified part to admit any civil or criminal liability or incur an financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and
• (c) the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement

9. Limitations on Liability

9.1 Limitations of Liability

To the extent permitted by law and except for RecordPoint’s indemnification obligations under section 8, RecordPoint’s (including it’s affiliates and subsidiaries) total and aggregate liability arising out of or related to the agreement, the RecordPoint platform, the Subscription Services, the Professional Services, and all other services provided to customer by RecordPoint, whether based on contract, tort (including gross negligence and negligence) or any other legal or equitable theory, shall not exceed an amount equal to the fees actually paid by customer to RecordPoint under the applicable purchase order in the twelve (12) months preceding the event giving rise to such liability. The existence of more than one claim shall not enlarge this limit. The foregoing shall in no way be interpreted to limit customer’s payment obligations to RecordPoint.

9.2 Exclusion of Damages

To the extent permitted by law, in no event shall RecordPoint be liable for any indirect, punitive, special, exemplary, incidental, consequential, cover, business interruption, or other similar damages of any type or kind (including, without limitation, loss of revenue, loss of profits, loss of data, loss of use, loss of goodwill or other economic advantage) regardless of the cause, arising out of or in connection with the agreement or the services provided by RecordPoint to customer, even if RecordPoint has been previously advised of the possibility of such damages and even if customer’s remedy otherwise fails in its essential purpose.

10. Term; Termination

10.1 Term of Terms of Service

These Terms of Service shall be effective, as updated from time to time by RecordPoint in its sole discretion, for the duration of all Purchase Orders and Statements of Work executed by Customer. Each Purchase Order and Statement of Work shall set forth the applicable term and/or Subscription Term in such document. Notwithstanding anything to the contrary, each Purchase Order shall automatically renew on the anniversary date thereof following the Initial Term set forth therein, at then-current RecordPoint prices, unless either party provides the other party with written notice of non-renewal at least ninety (90) days prior to the beginning of a Renewal Term.

10.2 Termination

Either party may immediately terminate a Purchase Order or Statement of Work for cause

• (a) following sixty (60) days advance written notice of a breach to the other party if such breach remains uncured, in RecordPoint’s determination, at the expiration of such period; or
• (b) if the other party becomes the subject of a petition in bankruptcy or any other proceedings relating to the insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within thirty (30) days of its commencement or an assignment for the benefit of creditors.

Termination shall not relieve Customer of the obligation to pay all fees accrued or due to RecordPoint prior to the effective date of termination including payments for future periods, and no refunds shall be owed to Customer unless agreed in writing by RecordPoint. Notwithstanding anything to the contrary in any other document or these Terms of Service, RecordPoint reserves the right to suspend Customer’s access to the Subscription Services or Professional Services at any time, in RecordPoint’s sole discretion, if:

• (a) RecordPoint has reason to believe that Customer may be in breach of any agreement related hereto, or
• (b) RecordPoint believes Customer’s use poses any security threat or otherwise jeopardizes RecordPoint’s business.

10.3 Return and Destruction of Customer Date

Following termination of all Purchase Orders and Statements of Work, upon request, RecordPoint may provide Customer with access to its account for up to ninety (90) calendar days to retrieve any of its data and/or reports from the RecordPoint Platform at a rate equal to the annual Subscription Fee prorated for such ninety (90) day period. All Customer Data will be destroyed in RecordPoint’s discretion on the first to occur of

• (a) expiration of the ninety (90) day grace period, or
• (b) written agreement of the Parties. If Customer requires assistance from RecordPoint in retrieving its data and/or reports, RecordPoint and Customer may enter into a Statement of Work that details the services to be provided by RecordPoint and the applicable fees.

10.4 Survival

Upon expiration or termination of these Terms of Service, any Purchase Order, or any Statement of Work, the following Sections of these Terms of Service shall survive until expiration of the applicable statute of limitations: Sections 1, 3.1, 3.2, 4, 5, 6, 7.3, 8, 9, 10.3, 10.4, and 11.

11. General Provisions

11.1 Compliance with Laws

Each party shall comply with all applicable laws and government regulations, including without limitation, all applicable export laws and regulations, in connection with providing and using the Subscription Services and Professional Services. Without limiting the foregoing,

• (a) each party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and
• (b) Customer shall not, and shall ensure that is users do not, violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement.

11.2 Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Customer’s failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation:

• strikes, lock-outs or other industrial disputes; trespassing, sabotage, theft or other criminal acts; cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorizes; national or international calamity; armed conflict; malicious damage, breakdown of plant or machinery; nuclear, chemical or biological contamination; explosions; collapse of building structures; fires; floods; storms; earthquakes; epidemics or similar events; natural disasters or extreme adverse weather conditions (each, a “Force Majeure Event”).

The party suffering a Force Majeure Event shall use commercially reasonable efforts to mitigate against the effects of such Force Majeure Event. If the effects of the Force Majeure Event continue unmitigated for a period of sixty (60) consecutive days, then either party may terminate the Agreement upon written notice to the other party, and RecordPoint’s sole liability shall be to refund any amounts paid for future periods for the affected Subscription Service or Statement of Work.

11.3 Notice

Either party shall give written notices provided for under the Agreement or otherwise by written communication sent by next-day mail via a nationally recognized delivery service:

• (a) if to Customer, to Customer’s address on record in RecordPoint’s account information; or
• (b) if to RecordPoint, to the address appearing on the relevant Purchase Order and/or Statement of Work with an email copy to: accounts@recordpoint.com.

Such notice shall be deemed to have been given 48 hours after mailing/emailing. Notwithstanding the foregoing, notices of non-renewal of any Purchase Order may be given by email alone to the email address set forth above in this Section 11.3.

11.4 Assignment

Customer may not assign its rights or obligations under the Agreement to any party, whether in connection with a sale of its business, merger, or change of control, without the prior written consent of RecordPoint. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.5 Governing Law, Jurisdiction and Dispute Resolution

Governing law, and place of exclusive jurisdiction shall be determined according to where the RecordPoint entity on the applicable Purchase Order or Statement of Work is located or organized, as follows:

The Agreement and any disputes related to the Agreement, the RecordPoint Platform, the Subscription Services, the Professional Services, Documentation, Customer Data, and all other services provided to Customer by RecordPoint

• (a) will be governed by the applicable Governing Laws above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods; and
• (b) shall be submitted to and finally settled by arbitration using the English language in accordance with the Arbitration Rules and Procedures of the applicable Forum above then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, RecordPoint shall have the right to institute an action in any court of proper jurisdiction for injunctive relief or other relief, in its discretion. Notwithstanding the foregoing, prior to referring a matter to arbitration, the parties must
  
  • (i) refer the dispute to their respective contract managers or other appointee to try in good faith to resolve the dispute; and
    
  • (ii) if the respective appointees are unable to resolve the dispute after thirty (30) consecutive days, then either Party may pursue arbitration.

11.6 Entirety; Miscellaneous

The Agreement including any amendments or modifications thereto signed by both parties comprises the entire agreement between Customer and RecordPoint and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

In the event of any conflict between these Terms of Service and a Purchase Order and/or Statement of Work, the former shall govern. No text or information set forth on any purchase order issued by Customer shall modify the terms hereof. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

Customer acknowledges and agrees that Customer’s purchase of any Subscription Services or Professional Services is neither contingent on delivery of any future functionality or features. The parties are independent contractors, with no joint venture, partnership, employment, or agency relationship whatsoever. There are no third-party beneficiaries to the Agreement. The failure of a party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision. Section headings in this Agreement are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Service Level Policy

This RecordPoint Service Level Policy (“Service Policy”) will apply to Customer’s production environment of the RecordPoint Subscription Services during Customer’s Subscription Term during only those periods when Customer is in compliance with the Agreement and current on payment of Fees. All capitalized terms used herein and not separately defined with have the meanings given to them in RecordPoint Terms of Service. This Service Policy may be updated from time to time, in RecordPoint’s sole discretion.

1. Definitions

When used in this Service Policy, the following capitalized terms will have the following meanings:  

“Downtime” means the Subscription Services are not available for use according to RecordPoint’s performance and monitoring services. Downtime does not include Emergency Downtime or Scheduled Downtime.

“Emergency Downtime” means those times where RecordPoint becomes aware of a vulnerability which RecordPoint deems to require immediate remediation and, as a result, the RecordPoint Subscription Services are temporarily unavailable in order for RecordPoint to address the vulnerability.  

“Monthly Uptime Percentage” means the total number of minutes in the calendar month, minus the number of minutes of Downtime during the calendar month, divided by the total number of minutes in the calendar month, times 100.  

“Scheduled Downtime” means those times where RecordPoint notifies Customer of periods of system Downtime in advance of such Downtime. There will be no more than thirty (30) hours of scheduled Downtown per calendar year.  

“Service Credit” means the credit that may be provided to Customer according to the following schedule:

• One Week Credit (99.4% – 97%): Includes seven (7) days of RecordPoint Subscription Services added to the end of your billing cycle, at no charge to you, if the Monthly Uptime Percentage for any calendar month is between 99.4% and 97%.
• Two Week Credit (96.9% – 92%): Includes fourteen (14) days of RecordPoint Subscription Services added to the end of your billing cycle, at no charge to you, if the Monthly Uptime Percentage for any calendar month is between 96.9% and 92%.
• One Month Credit (<92%): Includes thirty (30) days of RecordPoint Subscription Services added to the end of your billing cycle, at no charge to you, if the Monthly Uptime Percentage for any calendar month is less than 92%.

2. RecordPoint’s Uptime Commitment

The RecordPoint Subscription Services will be available to Customer 99.5% of the time in any calendar month not taking into account any Scheduled Downtime or Emergency Downtime (“Uptime Commitment”).

If RecordPoint fails to meet its Uptime Commitment in a given calendar month during Customer’s Subscription Term and while Customer is in compliance with the Agreement, then as Customer’s sole and exclusive remedy, Customer may be eligible for a Service Credit.  

2.1 Procedures for Service Credits

In order to receive a Service Credit, Customer must notify RecordPoint in writing within thirty (30) days of the day Customer becomes eligible to receive a Service Credit.

RecordPoint will review any request for a Service Credit within thirty (30) days, and to the extent a Service Credit is owed (as determined by RecordPoint’s monitoring services), RecordPoint will apply the same to a future billing cycle.

Service Credits may only be applied to Customer’s invoice and may not be exchanged for monetary compensation. To the extent Customer cancels the Subscription Services prior to the next billing cycle, no Service Credits will be owed. Service Credits are the sole and exclusive remedy for failure to meet the Uptime Commitment.  

2.2 Exclusions

The Uptime Commitment does not apply to any performance issues:

• (a) caused by factors outside of RecordPoint’s reasonable control;
• (b) that resulted from any actions or inactions from Customer or any third parties including RecordPoint’s hosting infrastructure contractors; or
• (c) that resulted from Customer’s equipment and/or third party software or equipment not within the control of RecordPoint.

The Uptime Commitment also does not apply during any period that Customer is not paying Subscription Fees to RecordPoint (e.g., a free trial period or designated Beta program).

Last Updated: May 5, 2025