These Terms of Service (the “Terms”) form a binding agreement between you (and, if applicable, the organization you represent, collectively, “you” and “your”) and Dealkit, Inc., a Delaware corporation (“Dealkit”) and govern your access to and use of the website www.dealkit.com (the “Website”) and the software-as-a-service offered by Dealkit via the Website (collectively, the “Service”). These Terms include the terms and conditions below, as well as any policies posted by Dealkit on the Website. If you have entered into a separate written agreement with Dealkit governing your access to the Service, then that separate agreement will control in the event of any conflict with these Terms.
1. Acceptance of Terms
By accessing the Service, creating an account, or entering into an Order Form (as defined below), you accept and agree to follow and be bound by these Terms. You also agree to comply with all applicable laws and regulations, as well as all rules or restrictions that are posted on the Service. If you do not agree to these Terms, you are not authorized and must cease using the service immediately.
2. Scope
The Service is a software-as-a-service platform for managing venture capital financing transactions (“Transactions”), including tools for drafting, negotiating and signing legal documents, as well as coordinating and communicating between companies, their investors, and their respective attorneys.
3. No Legal Advice
The Service is designed to be used by companies and investors in collaboration with their legal counsel. You understand and agree that Dealkit is not a law firm or an attorney, may not perform services performed by an attorney, and is not the substitute for the advice or services of an attorney. Any information contained on the Service is not legal advice and is not guaranteed to be correct, complete or up-to-date. No attorney-client relationship or privilege is created with Dealkit. If, prior to using the Service, you believe that Dealkit gave you any legal advice, opinion or recommendation about your legal rights, remedies, defenses, options, selection of forms or strategies, you will not proceed with the use of the Service. If you need legal advice for your specific situation and/or Transaction, you should consult a licensed attorney in your area.
4. Electronic Signature Consent
The Service provides the ability to sign legal documents electronically, request signatures from other parties, and enter into binding legal contracts. You agree that your electronic signature on the Service is the legal equivalent of, and will have the same legal force and effect as, your manual signature. You agree that your use of a keypad, mouse or other device, means or action to electronically sign an agreement on the Service is your consent to be legally bound by the terms of that agreement. You agree that no certification authority or other third party verification is necessary to validate your electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your signature or any resulting contract between you and Dealkit or between you and any other party on the Service. In any proceeding arising under or related to these Terms or any Transaction, you hereby waive any right to raise any defense or waiver based upon execution of these Terms or any Transaction by means of electronic signatures. All other users of the Service are intended third-party beneficiaries of this paragraph.
5. Subscriptions
You and Dealkit may enter into one or more Order Forms referencing these Terms, whether by written agreement or by clicking an acknowledgement within the interface of the Service (an “Order Form”), pursuant to which you may purchase a subscription to access and use the Service, subject to these Terms and any usage limitations described in the Order Form (a “Subscription”). A Subscription may provide for the use of the Service with respect to a single Transaction, and/or an ongoing subscription to use the Service. An Order Form may additionally include implementation and other professional services to be performed by Dealkit (the “Professional Services”).
6. Other Transaction Participants
You may also be invited to participate in Transactions on the Service by another Dealkit customer, for example as an investor in a Transaction, or as legal counsel to a company or investor participating in a Transaction (any such user, a “Transaction Participant”). in which case you can access the Service with respect to that Transaction without your own Subscription.
7. Access to the Service
Conditioned upon your acceptance of these Terms, during the term of your Subscription, you, your Authorized Users, and any invited Transaction Participants may access and use the Service. You may use the Service solely for your own internal business purposes and not for resale, in a service bureau arrangement or via distribution by any means not explicitly allowed under these Terms. An “Authorized User” is a person who you have invited to join your account on the Service, either via the interface of the Service or via a request to Dealkit. Authorized Users may be your employees, contractors, agents or other service providers. You agree that you will be directly responsible under these Terms for all actions and/or inactions by Authorized Users on your account and for all of your Authorized Users’ compliance with these Terms.
8. Acceptable Use
You agree that at all times in your use of the Service you will comply with Dealkit’s Acceptable Use Policy available at www.dealkit.com/legal/acceptable-use-policy (the “Acceptable Use Policy”).
9. Suspension of Access
Dealkit may suspend your access to the Service if Dealkit reasonably determines that: (a) your use of the Service disrupts or creates a security risk to the Service or other Dealkit systems; or (b) you are using the Service in violation of any applicable law or regulation, these Terms, the Acceptable Use Policy, or any other agreement with Dealkit or Dealkit policy. In the event of any suspension pursuant to this section, Dealkit will use commercially reasonable efforts to provide you written notice of the suspension, and to restore access to the Service as promptly as reasonably practicable after the applicable issue is resolved.
10. Billing and Payment
a. Pricing
Fees for access to the Service (“Subscription Fees”) and fees for Professional Services, if any (“Professional Services Fees” and together with the Subscription Fees, the “Fees”), are as described on the applicable Order Form. All Fees are non-refundable and non-cancellable for any reason (except as expressly set forth on the Order Form).
b. Billing and Invoices
Unless otherwise set forth on the Order Form, Subscription Fees are invoiced in advance upon execution of the Order Form and upon each renewal thereof, as applicable, and are due 15 days after the date of invoice. Professional Services Fees are invoiced as set forth in the Order Form. All Fees are in U.S. Dollars.
c. Late Charges
Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
d. Taxes
You are responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding taxes. All Fees are exclusive of taxes.
e. Billing Disputes
You agree that you will notify Dealkit within 30 days of receipt of an invoice from Dealkit if you intend to dispute the amounts owed under such invoice.
11. Term and Termination
a. Term
These Terms shall remain in full force and effect during the term of your Subscription (if applicable), and otherwise while you are provided access to the Service (the “Term”).
b. Termination
Either party may terminate these Terms and any Order Form upon thirty (30) calendar days’ prior written notice in the event of any material breach of these Terms by the other party hereto (including, without limitation, by Dealkit in the event of any failure to pay any Fees when due) that is not cured during such notice period. If you do not have a Subscription, Dealkit may terminate your use of the Service or your account, for any reason in our discretion, including your breach of these Terms.
c. Consequences of Termination
Your access to the Service, any licenses granted hereunder to you, and Dealkit's obligation to provide any service to you, shall terminate upon any termination of these Terms. All accrued rights to payment will survive termination of these Terms. Subject to the foregoing, the following Sections of these Terms will survive any termination of these Terms: Section 3 (No Legal Advice), Section 4 (Electronic Signature Consent), Section 10 (Billing and Payment), Section 11 (Term and Termination), Section 12 (Intellectual Property Rights & Restrictions), Section 13 (Confidentiality), Section 14 (Privacy), Section 15 (Warranties), Section 16 (Indemnification), Section 17 (Disputes with Other Users), Section 18 (Limitation of Liability), Section 19 (Force Majeure), Section 20 (Governing Law), Section 21 (Assignment), Section 22 (Notices), Section 23 (Relationship of the Parties), Section 24 (Severability), Section 25 (Changes to these Terms).
12. Intellectual Property Rights & Restrictions
a. Dealkit Intellectual Property
Dealkit retains all intellectual property rights in and to the Service, including any and all derivatives, changes and improvements thereto, and you agree that you obtain no intellectual property rights or licenses by these Terms. You agree that you will (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that you possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Dealkit's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, or logos of Dealkit.
b. Customer Information
As part of the Service, you or your Authorized Users may submit data, information, or materials to Dealkit via the Service (the “Customer Information”). Customer Information may include information about specific Transactions, such as valuation information, stage of company, round size, and similar information. As between you and Dealkit, you retain all ownership of the Customer Information, and Dealkit agrees that it obtains no intellectual property rights in or to the Customer Information except the limited licenses set forth herein. During the Term, you hereby grant Dealkit a limited, non-exclusive, worldwide, royalty-free license to use the Customer Information solely (i) to provide the Service to you and your Authorized Users, and other participants in your Transactions, to support and maintain the Service, and (ii) to generate Aggregated Anonymous Data. Notwithstanding anything to the contrary (including, without limitation, Section 13 below), you acknowledge and agree that, during and after the Term, Dealkit may freely use and otherwise exploit Aggregated Anonymous Data for Dealkit’s business purposes (including, without limitation, for purposes of developing and improving its software models, products and services, benchmarking, and producing research and other publications relating to Dealkit’s business or technology). “Aggregated Anonymous Data'' means data submitted to, collected by, or generated by Dealkit in connection with its performance of the Service and/or your use of the Service, but only in de-identified form that does not specifically identify you, or any other entity or individual.
c. Feedback
You may, from time to time, provide Dealkit with suggestions for improvements to, or other feedback for, the Service (collectively, “Feedback”). You hereby grant Dealkit a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to reproduce and use all Feedback for any purpose. Dealkit acknowledges that Feedback is provided to Dealkit on an “as-is” basis without warranties of any kind.
13. Confidentiality
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, the Service is Dealkit’s Proprietary Information, and the Customer Information is your Proprietary Information.
The Receiving Party agrees: (i) except as expressly provided herein, not to disclose to any third party any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of these Terms, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Receiving Party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in these Terms will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
Both parties will have the right to disclose the existence but not the terms and conditions of any Order Form, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors and/or acquirors.
14. Privacy
You acknowledge that, except as described in these Terms, the information you provide to us or that we collect will be used and protected as described in the Dealkit Privacy Policy available at www.dealkit.com/legal/privacy-policy. You acknowledge and agree that we may access, preserve, or share any of your information (including Customer Information) when we believe in good faith that such sharing is reasonably necessary to investigate, prevent, or take action regarding possible illegal activities or to comply with legal process (e.g. a subpoena or other legal process). We may also share your information in situations involving potential threats to the physical safety of any person, violations of the Dealkit Privacy Policy or our user agreements or terms; or to respond to the claims of violation of the rights of third parties and/or to protect the rights, property and safety of Dealkit, our employees, users, or the public. This may involve the sharing of your information with law enforcement, government agencies, courts, and/or other organizations.
15. Warranties
a. Mutual Warranties
Each party represents and warrants that (a) it has the necessary legal or corporate authority to enter into these Terms and any applicable Order Form, (b) it is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its origin, (c) these Terms and any Order Form are a valid and binding obligation, enforceable against it, in accordance with their terms, and (d) it will comply with all applicable laws, rules and regulations in performing its obligations and/or exercising its rights in these Terms or in using the Service.
b. Your Warranties
You represent and warrant to Dealkit that: (i) you have all necessary right and authority to upload the Customer Information to the Service without infringement upon any third party’s proprietary or privacy rights, including without limitation intellectual property rights; (ii) the Customer Information does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content.
c. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, DEALKIT PROVIDES THE SERVICE TO YOU ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DEALKIT DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT YOU WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
16. Indemnification
a. Your Indemnities
You will defend, indemnify and hold harmless Dealkit and its officers, directors, consultants, employees, successors and permitted assigns, from and against any claim, demand, action, subpoena, request or attestation brought by a third party (collectively, a “Claim”), and all out-of-pocket damages, awards, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees and other legal expenses, in each case, that are paid or payable to third parties pursuant to such Claim (collectively, “Costs”), to the extent such Claim arises from (i) any Customer Information, and/or (ii) any dispute between you and any other use of the Service (including, without limitation, any dispute relating to your Transactions).
b. Dealkit Indemnities
Dealkit will defend, indemnify and hold harmless you and, if an entity, your officers, directors, consultants, employees, successors and permitted assigns, from and against any Claims and resulting Costs arising out of or relating to an allegation that the Service (exclusive of all Customer Information) infringes any intellectual property right of a third party.
c. Indemnification Procedure
Each party’s obligations pursuant to this Section 13 are expressly conditioned on the indemnified party providing the indemnifying party with: (i) prompt written notice of each indemnifiable Claim; (ii) sole control over the defense and/or settlement of the indemnifiable Claim; and (iii) information and cooperation as may be reasonably requested by the indemnifying party to support its defense and/or settlement of the indemnifiable Claim. Subject to the foregoing, the indemnified party may elect to participate in the applicable Claim with its own counsel, at its own expense. The indemnifying party will not settle any Claim in a manner that admits liability or wrongdoing, or otherwise imposes any material obligation, on the indemnified party, without the indemnified party’s written consent, not to be unreasonably withheld or delayed.
17. Disputes with Other Users
You acknowledge and agree that Dealkit is under no obligation to become involved in any disputes between you and any other user of the Service (including, without limitation, other participants in your Transaction). If Dealkit elects to help resolve any such dispute, it does so only as a courtesy. In the event that you have such a dispute, you release Dealkit, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Service. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.."
18. Limitation of Liability
EXCEPT WITH RESPECT AMOUNTS PAID OR PAYABLE TO THIRD PARTIES PURSUANT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE IN CONNECTION WITH THESE TERMS AND/OR THE SERVICE FOR ANY (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU TO DEALKIT DURING THE TWELVE MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES (BUT, IF NO FEES HAVE BEEN PAID, SUCH AMOUNT WILL BE US $100).
19. Force Majeure
Except for payment obligations under these Terms, neither party hereto will be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
20. Governing Law
These Terms are governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from these Terms will be brought exclusively before the state and federal courts in San Francisco, California.
21. Assignment
Neither party will assign these Terms without the other party’s written consent; provided that each party may assign these Terms to a successor in connection with the sale of all or substantially all of its business or assets to which these relate.
22. Notices
All notices and other communications hereunder must be in writing and will be deemed to have been duly given when sent by email. All legal notices to Dealkit must be sent to legal@dealkit.com.
23. Relationship of the Parties
The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party.
24. Severability
If any provision of these Terms is held invalid or unenforceable, it will be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of these Terms will remain in full force and effect.
25. Changes to these Terms
These Terms are subject to occasional revision by Dealkit. We will notify you of any changes to these Terms by posting the new Terms on the Service and updating the “Last Updated” date above. We will also notify you of material changes by sending an email to the email address you have provided to us. Changes to these Terms will be effective thirty calendar days following notification of such change, except for new users entering into these Terms after the new “Last Updated” date, these changes will be effective immediately. Continued use of the Service following such changes and the expiration of the 30 day period will indicate your acknowledgement of such changes and agreement to be bound by the updated version of these Terms.