TERMS AND CONDITIONS OF SERVICE,
SUBSCRIPTION PLAN “PROFESSIONAL”
These Terms and Conditions of Service, Subscription Plan “Professional”, are entered into as of the date set forth in the Delivery Order, by and between the Client and iDeals Solutions APAC PTY LTD, a company incorporated in Australia whose registered office is located at: 118 Gold Coast Highway, Palm Beach QLD, 4221, Australia (“iDeals”) (each, a “Party”, and together, the “Parties”).
|iDeals Virtual Data Room Delivery Order (the “Agreement”):||Delivery Order signed by the Client and these Terms and Conditions of Service, Subscription Plan “Professional”.|
|Binary files:||files that cannot be converted to secured PDF format. Files of type *.pdf, *.txt, *.doc, *.docx, *.xls, *.xlsm, *.xlsx, *.ppt, *.pptx, *.pub, *.rtf, *.htm, *.html, *.mht, *.jpg, *.jpeg, *.jpe, *.gif, *.bmp, *.png, *.tif, *.tiff, *.wmf, *.flv, *.mov, *wmv, *.m4v, *.mpg, *.mxf, *.mkv, *.3gp, *.mpeg, *.ts, *.asf *.fv4, *.xlsm, *.mp4, *.avi are successfully supported. File of type *.dwg shall be considered as a binary file as by default conversion of such files is turned off. Files of type *.mp4, *.mov, *.avi, *.wmv, *.m4v, *.mpg, *.mxf, *.mkv, *.3gp, *.mpeg, *.ts, *.asf, *.f4v are successfully converted and available for secure viewing, but there is no possibility to convert them to secured PDF format. Files of the above-mentioned type which are larger than 15 Gb cannot be converted. Binary files may be opened only in original format and can’t have any security restrictions. Such files are encrypted with 256-bit TLS during transfer to/from the server.|
|Client Data:||any documents or information, whether in printed or electronic format, provided by or on behalf of the Client for the purposes of the Services, including documents and information chosen by or on behalf of the Client to be uploaded to the Data Room.|
|Corporate account:||this feature authorizes Users to manage multiple Data Rooms under a specific agreement between iDeals and the Client.|
|Data Room Index:||the architecture for the Data Room files, provided by or on behalf of the Client in order to organize the information within the Data Room so that the documents can be consulted by the targeted Users.|
|Account administrator:||those Users, designated by the Full account administrator and/or by account manager or support representative from iDeals. Such Account administrator(s) have the authority to create a new Data Room(s) associated with corresponding account and during such creation they shall designate the Project administrator(s) of the Data Room(s). Such Account administrator(s) can be disabled by the Full account administrator.|
|Project administrators (also referred to as Deal Managers):||those Users, designated by Full account administrator, by Account administrator, by another Project administrator or by support representative from iDeals, who act as administrator of the Data Room and have the authority to manage Data Room in relation to the Services. Throughout the entire duration of the Project, they will be the key contacts for the Account administrator(s) and will, consequently, be in a position to guide the Data Room in terms of strategy. Such Users can be disabled by other Project administrators of the Data Room.|
|iDeals VDR: (the “Data Room”)||iDeals’ proprietary database through which authorized Users may process, store, access and communicate with various kinds of documents, all in electronic format, intended for the purposes of the Project.|
|Delivery Order||a written instrument confirming the order for Services. Each duly executed Delivery Order shall be incorporated into and become a part of the Agreement between the Parties.|
|Project:||the Client’s on-going business for which purpose the Data Room is opened and Services are provided.|
|Full account administrator:||those Users, designated by another Full account administrator of the Data Room, by account manager or support representative from iDeals or who can be self-appointed during creation of new Data Room and have the authority to access Corporate account setting page and/or to overview information regarding account properties (account name, agreement number, account subscription) and/or to overview information regarding list of Account administrators and their permissions and/or to overview full list of projects associated with corresponding account and/or to edit account name and/or to manage list of the Account administrators and/or Full account administrator(s) (to add new Account administrator(s) and/or Full account administrator(s), to change permissions set for Account administrator(s) and/or Full account administrator(s) or delete Account administrator(s)) and/or Full account administrator(s) and/or to request a subscription update and/or to create new Projects within the Corporate account, and during such Project(s) creation the Full account administrator shall designate the Project administrator(s). Such Full account administrator of the Corporate account can be disabled by another Full account administrator.|
|Solution:||the software developed and operated by iDeals for the deployment and functioning of electronic data rooms.|
|Guest Users or Users:||the individuals, invited by Administrator of the Data Room or identified in writing by Administrator, who have permission to access the Data Room, review the Client Data and perform actions according to access level provided by the Administrators.|
2. iDEALS’ SERVICES
2.1. As a part of “Professional” subscription plan iDeals will provide the following Services necessary to make the Client Data available for access and use by Users for the specific business purpose:
1 except printing of the IRM encrypted documents
2option is available upon selection of the appropriate conditions in the Delivery Order
2.2. Additional services available to the Client are indicated below. All Additional services will be undertaken at iDeals’ rates set forth in Delivery Order.
3. SECURITY OF CLIENT DATA
3.1. iDeals undertakes to maintain security and confidentiality of the Client Data entrusted to it for the purposes of the Services. The security and confidentiality will be ensured by means of the following Data Room security features:
a) Each User will be identified by username and password (the “User ID”).
b) Two-factor authentication. Standard password protected access to the Data Room can be further tightened through the use of a one-time randomly generated SMS code, sent to the authorized User’s mobile phone and required for that user and current session only;
c) Digital Rights Management. iDeals offers tools (i.e. restriction of access to the menu, toolbar and right-click methods of copying text) that allow a group-based definition of access permissions for all Users. Given the role of each group of Users the Client/Deal Managers will be able to allow or restrict viewing, copying, printing, downloading of source documents (either in secured or in original format) and uploading documents, as well as to restrict group access to the Client Data by level, date and IP-address.
d) Document encryption. Every non-binary electronic document will be converted to Adobe PDF format and encrypted. All non-binary data both uploaded to the Data Room server and downloaded from the server is encrypted with 2048-bit TLS on a transfer level and when displaying/printing with AES 256-bit. All files in rest stored in data centers are encrypted with AES 256-bit. Non-binary secure file formats *.xls, *.xlsx, *.xlsm have additional security features such as: hidden formulas, secure formulas display mode with copy restriction.
e) Information Right Management (IRM). Security feature implementing through integration of the Solution with third party software – Microsoft Active Directory Rights Management Services (Microsoft AD RMS) in Windows – used in Windows OS for ultimate protection from content sharing, copying, forwarding or screen captures, and enables revoking of access to the IRM encrypted file even if it has been downloaded.
f) Watermarking. Each document page viewed by a User is stamped with a dynamically embedded watermark to prevent camera-based attacks. The watermark displays the Data Room, User’s name and email, company, IP address, current date and time of access. The watermark will not interfere with the ability to read the document as it will only appear in the background of each page. The watermark pattern can be changed or switched off by the Project administrator(s).
g) Fence View. Fence view feature is used to provide additional security layer against camera-based attacks.
3.2. All access permissions and security options are managed by the Client/Deal Manager by means of tools provided in the Data Room. The Service Provider can change the access permissions and customize security options only on Client/Deal Manager’s written request.
3.3. The security levels implemented by iDeals are guaranteed only to the extent that they are guaranteed by the main publishers of software used for the encryption and digital rights management (FileOpen Systems, Microsoft AD RMS, and Adobe for PDF files), distribution format (Adobe for PDF files) and the distribution medium (Microsoft).
3.4. The Client and Users shall be responsible for ensuring confidentiality of their respective User IDs. In no event iDeals shall be liable for a breach of confidentiality provisions to the extent such breach is a result of the Client or a User failing to maintain the confidentiality of its User ID or other failing to fulfill its security and confidentiality obligations.
4. DATA ROOM SET UP
4.1. The Project administrator will adapt settings of the Data Room in accordance with its specifications.
4.2. The Client uploads data to the Data Room.
4.3. Starting from the date decided by the Client/Deal Manager, iDeals shall allow Users access to the Data Room 24 hours a day, 7 days a week, during the term of Services.
4.4. The Project administrators from the Data Room shall provide respective access rights to the Data Room for Users. This list of Users may be changed by the Deal Manager at any time (by deleting Users from the list, or adding new Users, or limiting/increasing certain Users’ access rights) directly from the Data Room.
5. PROJECT MANAGEMENT
The Full account administrator or Account administrator will appoint Deal Managers (Project administrator(s)) who will be provided with User IDs and initial passwords to access the Data Room, manage Client Data and to permit other Users to access and use the Client Data the way they were authorized by a Deal Manager. Client authorizes iDeals to act on instructions provided by its Full account administrator with respect to provision of Services, the management of Data Room and Client Data. After the Data Room is opened to Users, which implies the Project administrator will, among other things, be entitled to permit other Users to access to the Data Room, manage Users’ access rights to Client Data, upload and manage Client Data, identify, coordinate and organise Users taking part in the “Questions & Answers” exchanges”, choose optional services to be provided. Full account administrator(s) and/or Deal Manager(s)(Project administrator(s)) will ensure that iDeals will receive the documents and information that are essential to the Project and the provision of the Services.
6. PAYMENT TERMS AND TAXES
6.1. The payments can be made by payment card of international card organizations, by bank cheque and(or) by wire transfer.
6.2. By choosing payment card as a payment method in section 3 of the Delivery Order, the Client hereby authorizes iDeals and its Affiliates to charge its account in the amount of Base Fee and fees for Additional services as per invoicing schedule.
The Client may revoke its authorization to iDeals’ auto-charging its account by sending email at: firstname.lastname@example.org .
6.3. iDeals will continue to charge the Client for the use of Data Room(s) and the Service provided until and unless:
6.4. Amounts payable by the Client under the Delivery Order are exclusive of all applicable taxes. The Client shall be responsible for all applicable sales, use, value-added, withholding and similar taxes imposed by any governmental entity based on the Services, except for taxes based on iDeals’ net income. If applicable law requires the Client to withhold amounts on payments owed to iDeals pursuant to the Delivery Order, the Client shall (i) effect such withholding and remit such amounts to the appropriate taxing authorities, and (ii) ensure that, after such deduction or withholding, iDeals receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount iDeals would have received and retained in the absence of such required deduction or withholding.
6.5. iDeals may charge interest on overdue payments (whether before or after any court judgement) in the amount of 0,1% from the overdue amount for each day of delay, starting after 10 days from the moment such delay occurred.
Without prejudice to other legal rights according to the Agreement, iDeals shall have the right to close the Data Room, disconnect the service or terminate the Agreement in case of delayed payment for more than 10 (ten) calendar days from the moment such delay occurred.
6.6. The fees are calculated based on the total Client Data loaded to the Data Room after its opening as per section 1 of the Delivery Order. For the avoidance of doubt, in case the Client uploads Client Data not intended for uploading (e.g. wrong data wrong format or equivalent) to the Data Room then the Client may delete such data from the Data Room including the Recycle bin within 3 days and inform iDeals’ billing team at: email@example.com of such deletion within 5 business days. In this case such unintentionally uploaded Client Data shall not be counted against applicable limits for billing purposes, provided that no User performed any action with such unintentionally uploaded Client Data.
6.7. The Contact Person listed in section 4 of the Delivery Order is authorized to receive all invoices and communication related to invoicing that will be sent by iDeals to the Client. Any invoice, communication or notice sent to the Contact Person shall be deemed as received by the Client. The Client shall promptly update iDeals on any change of the above details by sending a written notice at: firstname.lastname@example.org.
6.8. Support team man-hour and Development team man-hour Extra services mentioned in clause 2.2. of the Agreement includes (but is not limited to) services provided by iDeals upon Client’s or its Admin’s request manual processing of poorly scanned documents – rotation of pages, contrast adjustment, renaming documents, closing of data room(s), double numbering of contained of data room(s), set up of two-step verification for data room(s), possible preparations according to recording, partial downloading of the documents, structure changing, removal of password protection in PDF file, assignment of permission to Excel files, setting print area in MS Excel files, downloading and(or) loading large amount of data from and(or) to data room(s), preparation of reports and(or) statistics on the loaded data from data room(s) and(or) uploaded data to data room(s).
The Client represents and warrants that:
a) it has all necessary right in and to the Client Data to be provided to iDeals and/or uploaded to the Data Room;
b) it will not upload and distribute by means of the Data Room any files which content violates the applicable laws and regulation or rights of any third person,
c) its execution and performance of the Agreement does not and will not violate any applicable law, regulation, a decision of any governmental and judicial authority or third party rights in any respect.
8. iDEALS’ COMMITMENTS AND REPRESENTATIONS
8.1. iDeals represents and warrants that:
a) during the provision of Services it will use the state of the art technologies and the Services will be provided in accordance with the modern industry standards and that all detected defects will be eliminated in due time;
b) Data Room is reasonably designed for the secure storage and distribution of Client Data;
c) it has obtained any and all valid software licenses for any of the software it uses to perform its Services.
8.2. iDeals will avoid any corruption or other changes of contents of Client Data, if these are not coordinated with the Client, while processing and uploading the documents to the Data Room. In case such corruption or changes are discovered it shall immediately eliminate them.
8.3. iDeals shall not subcontract all or part of the Services, unless prior written agreement is given by the Client, apart from subcontracting data centres hosting facilities and scanning, where appropriate.
9.1. Ownership of Client Data. iDeals will generate a large number of electronic documents for distribution in the Data Room. As these documents are generated solely from information provided by the Client, Client acknowledges and agrees that iDeals shall not be responsible for the content of the aforesaid documents, their modification, use or publication by any User or any third party (other than iDeals’ employees and subcontractors). iDeals claims no intellectual property rights in the documents whatsoever and, consequently, will release “free from any right” the digital documents on a physical medium at the termination of the Agreement.
9.2. Ownership of Solution. iDeals owns and shall retain all right, title, and interest in and to the Solution, all technical and operational components thereof, including without limitation all related applications, user interface designs, processes, methods, know-how and other work supports, software and source code, and any and all future enhancements or modifications thereto, and all intellectual property rights therein. iDeals does not grant license or other authorisation of its copyrightable material, trademarks, service marks or other intellectual property to Client or its Users other than as provided in the Agreement. Neither Client nor the Users shall attempt to reverse compile, reverse engineer or disassemble, duplicate, modify, distribute or otherwise commercially exploit any element of the Solution, modify or make derivative works based upon the Solution or use the Solution in any manner incompatible with the terms and conditions of the Agreement.
10.1. iDeals will indemnify, defend and hold harmless the Client, its directors, officers, employees and shareholders from and against any and all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) arising from or relating to any claim that the Solution infringes any intellectual property right of a third party. iDeals shall not be liable in case such claim is based on any modification of the Solution conducted by or on behalf of the Client or any User.
10.2. The Client will indemnify, defend and hold harmless iDeals, its directors, officers, employees and shareholders from and against any and all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) arising from or relating to (i) any material breach by the Client of this Agreement, including without limitation any breach of its representations, or (ii) any use of the Client Data by the Client and Users in violation of the intellectual property, privacy or other proprietary rights of any third party or in violation of any applicable laws, rules and/or ordinances.
10.3. The party seeking indemnification shall notify the other party promptly, but in any event no later than within 30 (thirty) days of any such action, claim or proceeding and shall cooperate fully with the indemnifying party in the defense of any such claim. The indemnifying party shall have sole control of the defense of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with iDeals’ provision of the Services. The indemnified party shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party.
11.1.“Confidential Information” means any and all information disclosed by or at the direction of either party to the other in connection with the provision or use of the Services under the Agreement,irrespective of any confidentiality requirement from a disclosing party, presence or absence of the confidentiality label on the information, form of the information, or its content.
11.2. Confidential information shall not include any materials or information which the Receiving Party shows:
a) was known to it prior to the information’s disclosure in connection with the provision or use of the Services;
b) is or becomes generally available to the public through no act or default on the part of the receiving party, its employees and subcontractors;
c) was rightfully received from a third party under no contractual, legal or fiduciary obligation to keep such information confidential;
d) was independently developed by the receiving party, without the use of any Confidential Information; or
e) is required to be disclosed pursuant to, or by, any applicable laws, rules, regulatory authority, court order or other legal process, provided that the Receiving Party shall, promptly upon learning that such disclosure is required, give written notice of such disclosure to the Disclosing Party.
11.3. Both parties undertake to use reasonable measures to safeguard the Confidential Information of the other party. Neither party will at any time without the prior written consent of the other party publish, disseminate, duplicate or use, directly or indirectly, Confidential Information of the other party for any purposes other than to fulfil its obligations under the Agreement. Neither party will disclose, in whole or in part, the other party’s Confidential Information to any person, except to Users, employees or subcontractors who require such access to fulfill the purposes of the Agreement (the “Authorised Purpose”). Either Party will ensure that its employees and subcontractors are under obligations of confidentiality which are no less onerous than those contained in this Agreement including, but not limited to, the use of the Confidential Information for the Authorised Purpose only.
11.4. The obligations undertaken by the Parties in compliance with this Article shall survive any expiration or termination of the Agreement.
iDeals undertakes to hold all of the Confidential information of the Client in strict confidence during the term of the Agreement and 5 years after its termination.
12. LIMITATION OFLIABILITY
12.1. iDeals shall not be liable in respect for any damages, losses or expenses where the same are caused by the acts or omissions of the Client or Users, including any failure by the same to observe iDeals’ rules or directions as to the use of the Data Room or any other failure to observe their obligations under this Agreement.
12.2 iDeals shall not be liable for any costs, charges and claims incurred due to the Client’s failure to close a Data Room(s) as indicated in clause 6.3 of this Agreement at the end of its Project and the Services charges as per Sections 1 and 2 of Delivery Order (if applicable) will apply as long as the Data Room(s) of the Client remains active (even after termination of the Client’s Project(s)) and the Client shall be liable for such cost and charges.
12.3. The Client will either retain a complete set of documents delivered to iDeals or hold iDeals harmless for any loss or damage incurred to documents during shipment, storage or use, unless such loss or damage occurred as a result of iDeals’ negligence or willful misconduct.
12.4. While iDeals shall use all reasonable endeavours to ensure that the Data Room is open for access by Users at all times, the parties acknowledge that given the nature of the Internet and the technology involved iDeals is not responsible for any delays, disruptions or other faults in the Services caused by factors beyond its reasonable control, including problems with the public internet or the Client’s computer systems, the acts and omissions of third parties (such as Internet providers, Client’s mail service providers, Internet browser producers etc.).
12.5. iDeals shall not be liable to the Client and/or to any third parties for any loss of profit, loss of revenue, loss of business, loss of data, loss of contract and for any indirect, incidental, consequential, special or exemplary damages arising of the use of the Solution or third party software integrated with the Solution, even if iDeals has been advised of the possibility of such damages and in no event will the entire liability of iDeals under this Agreement exceed, in the aggregate, the total amount of fees paid or becoming due under the Agreement in the twelve (12) month period immediately preceding the event giving rise to such liability.
These limitations apply regardless of the basis on which iDeals’ liability arises, whether in contract, tort (including negligence), in equity, under statute or on any other basis.
12.6. No action, regardless of form, arising out of or related to the Agreement may be brought by the Client more than twelve (12) months after the cause of action first arose. This section 12 shall survive termination or expiration of the Agreement.
13.1. The Agreement shall come into effect on the Effective Date as mentioned in Delivery Order and continue in effect until terminated in accordance with subsection 12.2 of this Agreement or by delivery of written notice of termination by the Client in accordance with section 6.3 of this Agreement.
This Agreement may be terminated:
a) by Client, upon written notice with immediate effect for any or no reason; in this case the base fee or the extension fee for the current follow-on period is not refundable to the Client.
b) by iDeals, upon written notice with immediate effect if the Client breaches any material obligation under the Agreement (including but not limited to payment obligations) and fails to remedy such breach within 15 (fifteen) calendar days;
c) in compliance with a court decision – on the day the decision will become final, unless otherwise is provided for by such decision; or
d) by either Party, upon 3 (three) business days’ written notice if the other Party becomes insolvent or the subject of a petition in bankruptcy which is not withdrawn or dismissed within 60 days thereafter.
13.2. Upon termination or expiration of this Agreement:
a) iDeals terminates access of the Client and its End Users to the Data Room;
b) after payment in full for the Services performed up to and including the date of termination, iDeals upon the Client’s written request will return all materials contained in the Data Room to the Client on a USB flash drive (extra charge);
c) iDeals will delete all the Client Data from its hosting system on the written request made by the Client/Deal Manager;
d) all remaining copies of any Confidential information of one party then in the possession of the other party shall, at the direction of such party, be destroyed or returned to the disclosing party; and
e) all rights and obligations pursuant to Sections 9 (Ownership); 10 (Indemnification); 11 (Confidentiality); 12 (Limitation of Liability); 13(2) (Rights and Obligations on Termination); and 14 (Miscellaneous) will survive termination of the Agreement.
13.3. The Client may request iDeals to restore its Data Room within three years after the Agreement expires or terminated. Such renewal shall be initiated by the Client with written request to iDeals and shall be effected by means of execution of an addendum hereto. In case of the Data Room restoration the Client will be charged a fee in accordance with the rates indicated in the Delivery Order. iDeals reserves the right to amend financial terms of Agreement as of the date of the Agreement renewal. The remaining terms and conditions of the Agreement will remain the same unless otherwise agreed between the Parties hereto.
14.1. Applicable law and disputes. This Agreement will be governed and construed in accordance with the laws of Australia. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the Australian Centre for International Commercial Arbitration under the Rules of this Court, which Rules are deemed to be incorporated by reference into this clause.
In the event a dispute arises under this Agreement, the prevailing party will be entitled to all reasonable costs and expenses incurred by it in connection with such dispute (including, without limitation, all reasonable attorney’s fees and costs incurred before and at any trial, arbitration or other proceeding), as well as all other relief granted in any suit or other proceeding.
14.2. Force majeure. Neither Party shall be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of its respective obligations in relation to this Agreement, if the delay or failure was due to any cause beyond its reasonable control, including but not limited to acts of God, explosions, floods, fire or accident, war or threat of war, terrorism or threat of terrorism, sabotage, civil disturbance, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes or industrial actions or trade disputes (whether involving employees of either Party).
14.3. Assignment. Neither party to this Agreement may assign or delegate any part of this Agreement without prior notice to and the express written consent of the other, however, iDeals shall have the right to assign any part of this Agreement to either of its affiliated companies without prior notice or consent of the Client.
14.4. Modification of Agreement. No subsequent document or modification of Agreement, whatever form this takes, will come into effect between the parties without assuming the form of written instrument duly dated and signed by the parties.
14.5. Severability. If any one of the stipulations of this Agreement were proven null and void in the eyes of a current rule of law or a legal decision that has become final, such stipulation shall be severed from this Agreement, without however leading to the nullity of the Agreement or altering the validity of its other provisions.
14.6. Listing and communication. The Client authorises iDeals to mention Client as a customer, to use its trade name, trademarks, service marks or images (graphic symbol/logo) and/or to publish customer feedback of its representatives on iDeals’ products and services in iDeals’ marketing, promotional or advertising materials and on iDeals’ website.
iDeals may communicate about the Project once it has been made public, with any statement made being subject to the prior approval of the Client.