This RealTalk Subscription Agreement (“Agreement”) is effective as of the date agreed to by the Organization (the “Effective Date”) and is between New Terra LLC d/b/a RealTalk, a Virginia limited liability company, (the “RealTalk”) and you (the Organization).
By clicking “I agree” and using the Services, you, on behalf of the Organization, are agreeing to this Agreement.
WHEREAS, RealTalk provides a cloud based on-line platform that enables the Organization to host debates and tournaments as well as facilitate discussion and community (“Platform”); and
WHEREAS, RealTalk desires to provide to Organization and Organization desires to obtain the Platform as a service pursuant to the provisions set out in this Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby acknowledged by each Party hereto, the Parties agree as follows:
(a) Definitions. In this Agreement, the following terms will mean:
“Active Users” are any Participants that access their Account or enter into a tournament during the Billing Period.
“Administrators” are the Organization's appointed representative to monitor the Community, including
- providing Authentication ID for selected Participants;
- monitoring all communications and data from Participants; and
- taking any necessary steps to ensure that the Community remains a safe space for debate, including, but not limited to, setting group norms for acceptable content and conduct, disciplining Participants, disabling Participant accounts, or deleting Organization Materials.
“Authentication ID” means a security mechanism by which an Participant identifies themself to RealTalk System and gains access thereto, which security mechanism may include user identification, passwords, digital certificates, or any other similar process mechanism for authentication and recognition.
“Billing Period” means a period of one (1) calendar month beginning on the first day of each month and ending on the last day of that month, provided that the first Billing Period shall commence on the Effective Date and end on the last day of that month and the final Billing Period shall end on the date of termination of this Agreement.
“Business Day” means any calendar day except for Saturday or Sunday, or any statutory holiday observed by RealTalk.
“Business Hour” means the hours between 9:00 a.m. and 5:00 p.m. on Business Days.
“Claim” has the meaning set out in Section 11.(a).
“Community” is a closed group of Participants sponsored by the Organization.
“Confidential Information” means this Agreement, information about a Party’s technology, systems, or operations, and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished and to be furnished or made available by one Party to the other, whether in oral, written, graphic, or electronic form, including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party’s actual and potential customers and other Intellectual Property Rights of such Party; provided, however, that Confidential Information does not include any data or information:
- that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving Party;
- that, prior to disclosure by the disclosing Party, was already in the possession of the receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving Party;
- independently developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party’s Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development;
- which, subsequent to disclosure, is obtained from a third Person: (A) who is lawfully in possession of such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) who does not prohibit either Party from disclosing such information to others
- is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent; or
- any Organizational Materials.
“Fees” means the amounts to be paid by Organization to RealTalk for the performance of the Services, as set out in Schedule A, which is available on the Administrator's Account.
“Force Majeure Event” means an act of God, fires, floods, pandemics, strike or lock-outs, explosions, windstorms, riots, actions by any Governmental Authority (whether valid or invalid), or any other circumstances beyond the reasonable control and without the fault or negligence of the Party affected.
“Governmental Authority” means any domestic, foreign, or supranational government, whether federal, provincial, state, territorial, or municipal; and any governmental agency, ministry, department, tribunal, commission, bureau, board, or other instrumentality, including international institutions, exercising or purporting to exercise legislative
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source materials), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.
“Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under:
- patent law
- copyright law, including moral rights
- trademark law;
- design patent or industrial design law;
- semiconductor chip or mask work law;
- trade secret law;
- privacy law; or
- any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and
(b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements, or any other evidence of a right in any of the foregoing.
“Objectionable Content” means content that infringes any applicable laws, regulations, or third-party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive, in breach of any person’s Intellectual Property Rights, or violates the Terms of Service.
“Organization Data” means data, files, documentation, or other information that Organization or any of its Participants may upload to the Community when using the Platform, including but not limited to, Participant personal information.
“Organization Materials” means collectively the Organization Data and Organization Content.
“Organization Content” means any content, such as posts, live stream videos, chat room conversations, that is uploaded or created by Participants in the Community.
“Participant” means a Permitted User who is provided an Authentication ID by the Administrator and granted access to the Community and includes the Administrator.
“Party” means either RealTalk or Organization; and “Parties” means both of them.
“Person” means any individual, sole proprietorship, firm, partnership, corporation, trustee, trust, or other entity or organization.
“Permitted User” means any individual selected by the Organization that is
- at least thirteen (13) years old; or
- less than thirteen (13) years old and the Organization has written permission from such individual’s parent or guardian to participate in the Community. Permitted Users may be students, parents and guardians, school administrators, coaches, or other people chosen by the Administrator.
“Privacy Policy” means RealTalk’s privacy policy, as may be amended and updated, found on the RealTalk’s website (view Privacy Policy).
“Security Requirements”means those safeguards and controls as defined in Section 3(d).
“Services” means collectively the services to be provided by RealTalk to Organization as described and set out in this Agreement and Schedule A.
“RealTalk Server” means the Virtual Servers that are provided to the Organization in order to provide the Services.
“RealTalk System” means the Platform, RealTalk Server, and such devices and peripherals physically located with RealTalk Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure.
“Specifications” means, with respect to the Services, the functional specifications for the performance, operation, and use of the Services, as set out in the User Documentation.
“Term” means the term as described in Section 6.
“Terms of Service” means RealTalk’s terms of service, as may be amended and updated, found on the RealTalk’s website (View Terms of Service).
“User Documentation” means the documents, user manuals, and guides with respect to the operation, use, and functions of the Services.
“Virtual Servers” means one of any number of isolated server emulations running on a single physical server located on the infrastructure.
“Virus” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users; the term “Virus” will also be deemed to include worms, cancelbots, Trojan horses, harmful contaminants (whether self-replicating or not), and nuisance-causing or otherwise harmful applets.
(b) Headings. The division of this Agreement into articles, sections, schedules, and other subdivisions, and the inclusion of headings, are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
(c) Currency. Unless otherwise specified, all references to monetary amounts, including the symbol “$”, are in respect of U.S. currency.
(d) Schedules. The following Schedules are a part of and are integral to this Agreement:
- Schedule B: Service Level Objective, Support
(a) Scope of Services. RealTalk shall:
- create and deploy the Community
- provide access to Administrators and Participants through the on-line Platform
- host the Community on the RealTalk Server
- install all updates, upgrades, releases, and error corrections for the Platform, as needed; and
- administer all operating systems, databases, networking, and virtualization to operate the Platform (collectively, the “Services”).
(b) Availability of Platform. RealTalk strives to provide Organization’s Participants 24 hours per day, 7 days a week access to the Community and all Organization Materials, excluding scheduled time for maintenance and updates of the Platform and otherwise as provided for in Schedule B.
(c) Control of Platform. RealTalk shall be responsible for managing the Platform and may, in its sole discretion,
- reengineer network components and/or change locations where services are being provided; or
- modify and/or replace technology or service architectures relating to the Platform.
(d) Security Requirements. RealTalk shall implement and maintain commercially reasonable safeguards and controls to deter and for the detection, prevention, and correction of any unauthorized intrusion, access, or use of the Community (the “Security Requirements”). The Organization acknowledges and agrees that notwithstanding the Security Requirements, such methods and procedures may not prevent unauthorized electronic intruders to access the Community through the internet or through other forms of electronic communication. If such unauthorized electronic intruders are able to bypass RealTalk’s security protocols, firewall, and safeguards, such unauthorized electronic intruder may change, delete, or otherwise corrupt the contents and data contained in RealTalk Server, including the Organization Materials. Except for performing the required maintenance and safeguards in compliance with the Security Requirements, which are designed to prevent access from unauthorized electronic intruders, RealTalk shall not be liable to Organization, and hereby disclaims responsibility with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
(e) Maintenance. From time to time, it will be necessary for RealTalk to perform maintenance on the Platform. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of the Platform or upgrading, updating, or enhancing the Platform. RealTalk shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the Platform to Organization. To the extent RealTalk is able, RealTalk shall notify Organization in advance of any scheduled maintenance by posting a message on the website or by sending an email to the designated Organization service manager of the scheduled maintenance time and the anticipated duration of such maintenance.
(f) Changes. RealTalk may, at any time, with or without notice to Organization:
- make changes that are necessary to comply with applicable safety, security, or other statutory requirements or orders from applicable Governmental Authorities;
- supplement or make changes to its user documentation and to its rules of operations, access procedures, and security and privacy procedures and policies;
- change the components, type, and location of the Platform; and
- amend or change its Terms of Service or Privacy Policy, as needed.
(g) Authentication IDs. RealTalk shall provide Organization with as many Authentication IDs as requested to be distributed by the Administrator to the Participants. Organization shall control and maintain the security of all Authentication IDs. Organization shall be solely responsible for all instructions, commitments, and other actions or communications taken under any of its Authentication IDs. Organization shall promptly report to RealTalk any errors or irregularities in the Platform, or any unauthorized use of any part thereof, and inform RealTalk immediately if any Authentication ID becomes known to any third person who is not authorized to possess such Authentication ID. Organization hereby indemnifies and holds harmless RealTalk from any actions, claims, suits, proceeding, or damages made against RealTalk from a third person as a result of any use of Organization’s Authentication IDs, whether or not such use is authorized by Organization.
(h) Participants. Only Permitted Users may be authorized by Organization to access the Community. It is Organization’s sole responsibility to ensure that all Participants are Permitted Users. For each Participant that is under thirteen (13) years old, the Administrator shall collect and maintain a consent form, signed by the parent or guardian granting permission for personal information to be provided through the Platform and to RealTalk. RealTalk may remove or deny Participant(s) access to the Community if Real Talk deems that the Organization did not comply with this Section 3(h). Organization shall ensure that all Participants are aware of the provisions of this Agreement, including their obligation to comply with the provisions contained herein as it relates to their use of the Platform and the Community, as well as the Privacy Policy and Terms of Service. Organization shall be responsible and liable for the actions and omissions of each Participant and their compliance with the provisions herein.
(i) Audit and Unauthorized Use. RealTalk reserves the right to monitor and audit Organization and its Participants’ usage of the Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by RealTalk or a third party authorized by RealTalk, at RealTalk’s expense. If any such audit reveals that any Authentication ID has been provided to a person who is not a Permitted User, or the number of Authentication IDs granted by Organization exceeds the number of Participants, Organization shall, without delay, disable any such passwords and notify RealTalk immediately. In case of unauthorized use of the Community whether by Organization, a Participant, a Permitted User, or another person, RealTalk reserves the right to deny access to the Community to Organization or such Participant, Permitted User, or other person, by blocking, without prior notification, the IP address(es) used to access the Platform by such Participant, Permitted User, or other person.
(j) Help Desk. RealTalk shall make available its help desk to support Organization’s and its Participants’ use of the Services during Business Hours on Business Days in accordance with the provisions set out in Schedule B.
(k) Services Outside Scope. Any services outside the scope set forth above will be subject to a separate professional services agreement at RealTalk’s then-current rates.
(a) Notice. Notices hereunder will be deemed properly given if in writing and given by facsimile, personal delivery, pre-paid registered mail (return receipt requested), or national courier service addressed to the recipient at the following addresses:
If to RealTalk | Address: 1650 Silver Hill Drive APT 1504, McLean, VA 22102 Attention: Karthik Srinivasan |
If to Organization: | Address in the Administrator’s Account Attention: Administrator |
Or to such other address or individual as either Party may notify the other. Any notification will be deemed delivered: (a) upon receipt, if delivered personally or pre-registered mail; (b) on the next Business Day, if sent by courier service, for next Business Day delivery, or if sent by fax.
(b) Relationship of Parties. The Parties are independent contractors and no other relationship is intended. Nothing herein will be deemed to constitute either Party as an agent, representative, or employee of the other Party, or both Parties as joint venturers or partners for any purpose. Neither Party will have the authority or right to represent nor obligate the other Party in any way, except as expressly authorized by this Agreement.
(c) Governing Law. This Agreement will be governed by, and construed and enforced in accordance with, the laws in force in the Commonwealth of Virginia (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the federal or state courts having jurisdiction over Fairfax County, Virginia and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.
(d) Survival. Sections 3.(i), 5., 7., 8., 9., 10., 11., 12., and 14., and any other section that by its nature is meant to survive, will survive termination or expiration of this Agreement.
(e) Modifications. Any amendment of this Agreement must be in writing and signed by an authorized representative of each Party.
(f) Waiver. No waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(g) Entire Agreement. This Agreement, with its Schedules, constitutes the entire understanding between the parties regarding the subject matter of this Agreement. In the event that the Terms of Service and Privacy Policy conflict with this Agreement, this Agreement, then the Terms of Service, and then the Privacy Policy shall govern.
(h) Severability. If any provision of this Agreement is unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not) and all other provisions will not be affected.
(i) Further Assurances. Each Party shall take such action (including, but not limited to, the execution, acknowledgment, and delivery of documents) as may reasonably be requested by the other Party for the implementation or continuing performance of this Agreement.
(j) Assignment. Organization shall not assign or otherwise transfer any rights or other obligations under this Agreement without RealTalk’s prior written consent, such consent not to be unreasonably withheld. This Agreement will inure to the benefit of and be binding upon each of the Parties and their permitted successors and assigns.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
(l) Attorneys’ Fees. In the event that any Action is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its actual attorneys’ fees and court costs from the non-prevailing Party.
(m) Export Regulation. The Add-On may be subject to US export control Laws, including the US Export Administration Act and its associated regulations. Reseller will not directly or indirectly, export, re-export, or release the Add-On to, or make the Add-On accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Reseller will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Add-On available outside the United States.
1. Uptime. The Services will Function and be available as provided in this Agreement with the Uptime specified below (with the exception of any scheduled maintenance performed by RealTalk).
a. “Uptime” shall mean 99.7%. Uptime will be calculated as follows: (Total Hours Available – Actual Outage Hours) divided by Total Hours Available. "Total Hours Available" means the total hours during the month less any hours designated for scheduled maintenance downtime (up to the maximum permitted herein) during the Billing Period.
a. “Actual Outage Hours” means the total number of hours elapsed, beginning with the earlier of (a) when RealTalk knew of an Outage or (b) when RealTalk first notifies Organization of an Outage, and ends with the time that the Outage has been resolved, as agreed upon by RealTalk and Organization.
c. “Outage” means Organization's inability to gain access to the Services to use it.
d. “Function” will mean the availability of the following essential features:
- Student and Judge Enrollment;
- Payment Acceptance;
- User Sign-up;
- Community Enrollment;
- Viewing upcoming tournament; and
- Tournament functions.
e. “Tournament functions” will mean during live tournaments, these critical features will be available at all times:
- Selecting, completing, and viewing Ballots;
- Tabulation
- Round generation
- Viewing Postings;
- Viewing Judges;
- Viewing Tournament Details; and
- Live Stream.
Notwithstanding the foregoing, in the event of livestream failure, failover to Zoom will be provided, with a failover time of less than five minutes and users will be required to refresh their screen.
a. Scheduled downtime shall not exceed up to 20 hours per month, with a maximum of 4 hours per week for maintenance activities.
b. Maintenance window for scheduled downtime is between 3 AM EST and 7 AM EST to minimize disruptions during peak usage hours.
3. Credit for Monthly Fees
a. During the Term, if RealTalk has failed to meet the Uptime set forth herein for any Billing Period. Organization may receive deductions from its Fees as set forth below in the form of a credit towards its future Fees (“Credit”). The Credit is not a refund and will not be provided to the Organization.
b. Credits are expressed as a percentage of RealTalk's total Fees during the Billing Period in which the service deduction applies. If RealTalk's noncompliance is between 99.5% to 99.7%, Organization will be credited five percent (5%) of its monthly fee. If noncompliance is from 98% to 99.5%, the credit will be ten percent (10%) of the monthly fee. There will be an additional two percent (2%) credit of the monthly fee for each additional one percent (1%) of noncompliance beyond 98%, up to a maximum credit equal to 100% of the then-applicable monthly fee.
c. In order to be eligible for a Credit, the Organization must:
- be in compliance with all obligations of this Agreement, including the payment of Fees;
- provide notice of Outage no later than one (1) hour of its discovery of such Outage;
- request a Credit within thirty (30) days of such Outage;
4.Support and Incident Responses
a. All support and incident responses must be submitted to support@debatedesk.com immediately.
b. First response time for support requests will be within 4 hours during business hours (8 AM EST to 8 PM EST).
c. For critical issues reported during business hours, the initial response time will be under 20 minutes.
d. Time to resolution for critical issues will be under 24 hours, unless the issue cannot be resolved within this timeframe. Critical issues will be given top priority until resolved.