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Subscription Agreement
Subscription Agreement
Privacy Policy
Terms of Service
Last Updated: March 30, 2024
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.
Table of Contents:
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:
1. Interpretation
(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
  1. providing Authentication ID for selected Participants;
  2. monitoring all communications and data from Participants; and
  3. 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:
  1. 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;
  2. 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;
  3. 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;
  4. 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
  5. is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent; or
  6. 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:
  1. patent law
  2. copyright law, including moral rights
  3. trademark law;
  4. design patent or industrial design law;
  5. semiconductor chip or mask work law;
  6. trade secret law;
  7. privacy law; or
  8. 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
  1. at least thirteen (13) years old; or
  2. 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 A: Fees
  • Schedule B: Service Level Objective, Support
2. Services Generally.
(a) License. Subject to the terms and conditions of this Agreement commencing as of the Effective Date and for the duration of the Term, in exchange for the Fees, RealTalk hereby grants to Organization a non-exclusive, non-transferable, revocable right for the Organization, and for the Participants to access the Organization’s Community for the purpose of (collectively, “Permitted Purpose”):
  1. Hosting, viewing or participating in debates or debate tournaments; and
  2. Utilizing any other features provided by RealTalk to the Community.
(b) No Implied Rights. The Platform is provided to the Organization solely for the Permitted Purpose under the express terms of the license granted in this Agreement. Except for the limited rights and license expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to the Organization or any third party any Intellectual Property Rights or other right, title or interest in or to the Platform.
3. RealTalk Obligations.
(a) Scope of Services. RealTalk shall:
  1. create and deploy the Community
  2. provide access to Administrators and Participants through the on-line Platform
  3. host the Community on the RealTalk Server
  4. install all updates, upgrades, releases, and error corrections for the Platform, as needed; and
  5. 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,
  1. reengineer network components and/or change locations where services are being provided; or
  2. 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:
  1. make changes that are necessary to comply with applicable safety, security, or other statutory requirements or orders from applicable Governmental Authorities;
  2. supplement or make changes to its user documentation and to its rules of operations, access procedures, and security and privacy procedures and policies;
  3. change the components, type, and location of the Platform; and
  4. 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.
4. Organization Obligations.
(a) Provision and Access to the Platform. The Organization is responsible for the high-speed Internet and telecommunications and supporting equipment required by the Organization and the Participants to access the Community. The Organization is responsible for the costs of such connections and supporting equipment.
(b) Organization Materials.
  1. The Organization is solely responsible for the Organization Materials that the Organization or its Participants create, install, upload, or transfer on, from, or through the Community.
  2. The Organization hereby grants to RealTalk a royalty-free, non-exclusive, freely transferable right and license to use, copy, store, and display the Organization Materials solely for the purpose of enabling RealTalk to provide the Community under this Agreement.
  3. The Organization is solely responsible for backing up all Organization Materials on the Community and agrees to maintain outside RealTalk’s Server a current backup of all Organization Materials stored on the Platform, if desired.
  4. The Organization acknowledges and agrees that RealTalk: (A) will not be responsible for the accuracy, completeness, or adequacy of the Organization Materials; (B) has no control over any Organization Materials or the results therefrom; (C) does not purport to monitor the Organization Materials; and (D) shall not be responsible to back up, or maintain any back up, of the Organization Materials or portion thereof.
(c) Additional Organization Responsibilities. In addition to any other obligations of the Organization under this Agreement, the Organization shall:
  1. Be solely responsible for use of the Platform by any of its Participants, and take all necessary measures to ensure that the Participants use the Platform in accordance with the terms of this Agreement;
  2. Assign, record, and control the issuance and use of all Authentication IDs;
  3. Ensure all Participants are Permitted Users in accordance with Section 3(h).
(d) Prohibited Activities. The Organization shall not and shall not permit any other Person to:
  1. use the Platform other than for the Permitted Purpose or in any manner or for any purpose or application not expressly permitted by this Agreement;
  2. Include, or knowingly allow others to include, any Objectionable Content or introduce Viruses to the Platform, and shall institute such security procedures and safeguards as Organization deems necessary to prevent the posting, uploading, or inclusion of any Objectionable Content or Viruses to the Platform;
  3. Intercept or attempt to intercept any messages transmitted to and from the Platform that are not intended for Organization or any of its Participants;
  4. Take any action that imposes an unreasonable or disproportionately large load on the Platform or abuse the Platform in any manner that interferes with the Platform or the provision of them;
  5. copy the Platform, in whole or in part, in violation of the Permitted Purpose;
  6. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Platform or any Intellectual Property Rights;
  7. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform to any third party that is not a Participant;
  8. reverse engineer, disassemble, decompile, decode, or adapt the Platform, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part;
  9. bypass or breach any security device or protection used for or contained in the Platform;
  10. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Platform;
  11. use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
  12. use the Platform for purposes of: (i) benchmarking or competitive analysis of the Platform; (ii) developing, using or providing a competing Platform product or service; or (iii) any other purpose that is to RealTalk’s detriment or commercial disadvantage;
  13. use the Platform in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Platform could lead to personal injury or severe physical or property damage; or
  14. make any representations, warranties, guarantees, indemnities, claims, or other commitments: (1) actually, apparently, or impliedly on RealTalk’s behalf; or (2) concerning or relating to any Platform that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments in this Agreement, or any written documents provided or made available by RealTalk to Organization that concern or relate to the Platform.
(e) Viruses. If RealTalk, in its absolute discretion, forms the view that any Organization Materials or any other information or files uploaded by Organization or any of its Participants contains Objectionable Content or includes a Virus, RealTalk may remove such Organization Materials, information, or file from RealTalk System and take such other action as RealTalk deems necessary to protect the integrity and operation of the Platform and the Community. Any costs associated with such removal may be charged by RealTalk to Organization and shall be paid by Organization within 30 days of invoice and subject to Section 7(a) below.
5. Fees and Payment.
(a) Fees. Fees are as set out in Schedule A, which is available on the Administrator's Account. The Fees do not include applicable taxes. At the end of each Billing Period, RealTalk shall invoice the Fees and applicable taxes. Organization agrees to pay the Fees and applicable taxes no later than thirty (30) days from the date of the invoice.
(b) Taxes. Organization shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial, and local, excise, sales, use, goods and services, harmonized, value added, and any taxes or other amounts in lieu thereof, except for any taxes based on RealTalk’s net income.
(c) Recurring Payments. RealTalk may offer and Organization may authorize recurring payments, and such payments will be made to RealTalk monthly by the method provided to RealTalk. Organization must terminate this Agreement in accordance with Section 7 below before the end of current Billing Period to stop being charged to continue the Services. By authorizing recurring payments, Organization is authorizing RealTalk or its third-party vendors to store the Organization's payment instrument and process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated account (for Automated Clearing House or similar payments), or as charges to the designated account (for credit card or similar payments) (collectively, "Electronic Payments"). By providing RealTalk with a payment method, the Organization
  1. represents that it is authorized to use the payment method it provided and that any payment information it provided is true and accurate; and
  2. authorizes RealTalk to charge the Organization for the Fees using such payment method.
(d) Interest on Late Payments. Where Organization fails to pay any amount in accordance with this Agreement, RealTalk shall have the right, in addition to any other rights or remedies available to it, to charge, and Organization shall pay, on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law.
6. Term.
This Agreement will commence on the Effective Date and continue month to month, unless terminated in accordance with Section 7 below (“Term”).
7. Suspension and Termination.
(a) Suspension of Services. In the event that Organization does not pay the Fees or any portion thereof, when due, RealTalk may immediately suspend Organization’s and its Participants’ right to access and use of the Community.
(b) Termination. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party.
(c) Effect of Termination. Upon termination of this Agreement:
  1. Organization shall download any and all Organization Materials contained on the Community and store such Organization Materials on Organization’s systems;
  2. RealTalk shall terminate and invalidate any Authentication IDs associated with Organization and any of its Participants;
  3. RealTalk shall, but not earlier than ten (10) Business Days after the termination or expiration of this Agreement, destroy any copies of the Organization Materials contained in the Platform;
  4. Organization shall pay to RealTalk the full amount of all Fees payable hereunder as of the date of termination, if any, whether already invoiced or not (including any amounts due as late payment charges), and any other monies owing to RealTalk hereunder; and
  5. Each Party will return to the other Party all Confidential Information of the other Party which is then in its possession or control.
Organization acknowledges and agrees if Organization fails to download the Organization Materials from RealTalk System in a timely manner, it may not have access to such information or such information may be destroyed by RealTalk in accordance with the terms of this Section 7.(d). It is Organization’s responsibility to download and obtain all Organization Materials prior to the expiration or termination of this Agreement. RealTalk shall have no responsibility, or any liability to Organization, for maintaining or providing to Organization the Organization Materials or any portion thereof after the termination or expiration of this Agreement.
8. Ownership.
(a) RealTalk’s Ownership. Organization acknowledges and agrees that, as between Organization and RealTalk, RealTalk owns all worldwide right, title, and interest, including all Intellectual Property Rights, in and to:
  1. the Platform;
  2. the Community; and
  3. any modifications, enhancements, upgrades, updates, or customization to the Platform or Community.
Organization does not acquire any rights, title, or ownership interests of any kind whatsoever, express, or implied, in any of the foregoing other than the licenses granted herein. For the avoidance of doubt, the parties agree that RealTalk shall own all Intellectual Property Rights to the Platform, the Community, and any related derivates developed under this Agreement, including but not limited to any modifications, ideas or suggestions made by the Organization or any Participants.
(b) Organization’s Ownership. RealTalk acknowledges and agrees that, as between Organization and RealTalk, Organization owns all worldwide right, title, and interest including, all Intellectual Property Rights in and to the Organization Materials shall be the exclusive property of Organization. RealTalk does not acquire any rights, title, or ownership interest of any kind whatsoever, express or implied, in any of the Organization Materials, other than the license granted herein.
9. Confidentiality.
(a) Obligation. Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents, and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement, or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it, or make it available to any third person other than employees, agents, and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
(b) Subpoena. In the event that any Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a Governmental Authority, such Party agrees to:
  1. immediately notify the other Party of the existence, terms, and circumstances surrounding such a request;
  2. consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and
  3. if disclosure of such Confidential Information is required, exercise its commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.
(c) Injunctive Relief. Each Party acknowledges and agrees that any unauthorized use or disclosure by it of any of the other Party’s Confidential Information, in whole or part, may cause irreparable damage to the disclosing Party, that monetary damages may be an inadequate remedy, and that the amount of such damages may be extremely difficult to measure. The receiving Party agrees that the disclosing Party shall be entitled to seek temporary and permanent injunctive relief to restrain the receiving Party from any unauthorized disclosure or use. Nothing in this Agreement shall be construed as preventing the disclosing Party from pursuing any and all remedies available to it for a breach or threatened breach of a covenant made in this Section 9, including the recovery of monetary damages from the receiving Party.
10. Representations, Warranties, and Disclaimers.
(a) Mutual Representations of the Parties. Each Party represents to the other that:
  1. It is a company duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation, and it has full power and authority to enter into this Agreement and to perform each and every covenant and agreement herein contained;
  2. This Agreement has been duly authorized, executed, and delivered by it, the Person signing is authorized to execute the Agreement, and the Agreement constitutes a valid, binding, and legally enforceable agreement of it;
  3. The execution and delivery of this Agreement, and the performance of the covenants and agreements herein contained, are not, in any manner or to any extent, limited or restricted by, and are not in conflict with, any commercial arrangements, obligations, contract, agreement, or instrument to which it is either bound or subject; and
  4. The execution and delivery of this Agreement and the performance of its covenants and agreements herein contained shall comply in all respects with all laws and regulations to which it or its business is subject.
(b) Additional Representations of Organization. The Organization represents to RealTalk that it has the necessary rights, licenses, power, and authority to upload, transfer, process, and store the Organization Materials on the Platform, including obtaining applicable consents to process and store the personal information of identifiable individuals on the Platform.
(c) Additional Representations of RealTalk. RealTalk represents to Organization that RealTalk possesses the knowledge, skill, and experience necessary for the provision of the Services in accordance with the terms of this Agreement.
(d) Warranties. RealTalk warrants that:
  1. It will perform the Services in a first class, professional, and timely manner in accordance with the highest professional and industry standards; and
  2. For the duration of the Term, the Community will substantially operate in accordance with, and have the functions set out in, the Specifications.
11. Indemnities.
(a) Intellectual Property Indemnity. RealTalk shall defend, indemnify, and hold harmless at its own expense any claim, proceeding, or suit (a “Claim”) brought against Organization or any of its Participants to the extent such Claim alleges that the Services furnished hereunder infringes any copyright, patent, or registered trademark of a third person, and will indemnify and pay all damages which by final judgment or settlement may be assessed against Organization or an Participant on account of such infringement, provided that:
  1. RealTalk is given prompt written notice of the Claim or of any allegations or circumstances known to Organization which could result in a Claim.
  2. RealTalk is given all reasonable information and assistance from Organization, at RealTalk’s expense, which RealTalk may require to defend the Claim.
  3. RealTalk is given sole control of the defense of the Claim, and all negotiations for the settlement or compromise thereof.
  4. The alleged infringement does not result from any non-permitted uses, alterations, modifications, or enhancements carried out by Organization or on its behalf by a third person or any violation of this Agreement by the Organization.
If such Claim has occurred, or in RealTalk’s opinion is likely to occur, RealTalk may, at its option and expense, either:
  1. Procure for Organization the right to continue using the Services;
  2. Modify the same so that it becomes noninfringing without loss of functionality; or
  3. If none of the foregoing alternatives is reasonably available, and at RealTalk’s discretion, discontinue the Services and refund to Organization any pre-paid and unused portion of the Fees paid by Organization in respect of use of the Services. The foregoing states the entire obligations of RealTalk with respect to any infringement of Intellectual Property Rights of any third Person.
(b) Organization’s Indemnity. Organization shall defend, indemnify, and hold harmless at its own expense any Claim brought against RealTalk, its affiliates, directors, officers, employees, and agents, to the extent such Claim:
  1. alleges, directly or indirectly, that any Organization Materials infringes any copyright, patent, or registered trademark of a third person (including software or service licenses);
  2. alleges, directly or indirectly, that the Organization Materials contains any Objectionable Content
  3. arises because the Organization failed to comply with Section 3(h); or
  4. is in relation to Organization’s and its Participant’s use or misuse of the Platform, except to the extent as RealTalk has indemnified Organization pursuant to Section 11.(a)
12. Limitation of Liability.
(a) Consequential Damages. Except for its obligations under Sections 9 and 11, in no event shall RealTalk be liable to the Organization or any third party for any consequential, incidental, exemplary, or punitive damages even if advised in advance of the possibility of such damages. Further, RealTalk shall not be liable to Organization for any lost revenue, lost profit, or lost savings.
(b) Limitation of Direct Damages. Except for its obligations under Sections 9 and 11, in respect of any claim, demand, or action by the Organization against RealTalk or any of its employees, directors, officers, or agents whether based in contract, tort (including negligence), or otherwise, including a breach by RealTalk of any of its obligations under this Agreement (whether or not a fundamental breach), the Organization’s sole and exclusive remedy shall be to receive from RealTalk payment for actual and direct damages to a maximum aggregate amount equal to the amount paid by Organization to RealTalk in the six (6) months preceding the date of the event.
13. Force Majeure.
Except for any obligation to make payments, neither Party will be responsible to the other Party for any damages caused by a delay or the failure to perform any of its obligations under this Agreement when the delay or failure is the result of a Force Majeure Event.
14. Miscellaneous.
(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.
15. Schedule A: Fees.
The fees for the Services are community-specific. The detailed pricing information for your Community, referred to as "Schedule A," can be found in the Community Administrator's Account. The Organization can opt for either the Active User Pricing Model or the Total User Pricing Model, as described below:
Active User Pricing Model: The Organization shall pay the Fees based on the total number of Active Users during the relevant Billing Period, in accordance with the pricing table provided in Schedule A.
Total User Pricing Model: The Organization shall pay the Fees based on the highest total number of Participants during the relevant Billing Period, in accordance with the pricing table provided in Schedule A.
To Access Schedule A:
1. Navigate to your Community's home screen within the RealTalk platform.
2. Click on the Community name located in the top left corner of the screen.
3. From the dropdown menu, select "Community Settings."
4. In the Community Settings dialog, navigate to the "Billing" tab.
5. Under the "Overview" section, locate the "Review volume pricing for my community (Schedule A)" link
By clicking on this link, you will be able to view and review the specific pricing details applicable to your Community, as outlined in Schedule A.
16. Schedule B. Service Level Objectives, Support.
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:
  1. Student and Judge Enrollment;
  2. Payment Acceptance;
  3. User Sign-up;
  4. Community Enrollment;
  5. Viewing upcoming tournament; and
  6. Tournament functions.
e. “Tournament functions” will mean during live tournaments, these critical features will be available at all times:
  1. Selecting, completing, and viewing Ballots;
  2. Tabulation
  3. Round generation
  4. Viewing Postings;
  5. Viewing Judges;
  6. Viewing Tournament Details; and
  7. 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.
2. Maintenance.
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:
  1. be in compliance with all obligations of this Agreement, including the payment of Fees;
  2. provide notice of Outage no later than one (1) hour of its discovery of such Outage;
  3. 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 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.
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