Exhibit A: Statement of Work, Datasite Diligence (Case 24-11217-BLS, Doc 989-1)
Summary
Exhibit A in Case 24-11217-BLS, a Datasite Diligence Statement of Work (SOW) between Datasite LLC and Vyaire Medical for Project Name: Crystal, with the signature block naming Rachel Lisenby and Kelly Weisenfels and dated May 8, 2024. The SOW defines the service as the VDR virtual data room, with an Initial Term of six (6) months that renews month to month. Pricing is $0.52 per page up to 5,000, $0.50 from 5,001 to 10,000, and $0.48 from 10,001 on, with a discount of 10% at Go Live. Optional services include Continuation at $0.25 per page per month and Hibernation at $0.13 per page per month. The United States General Terms and Conditions, Revision Date 31 July 2023, follow.
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- Date
- 2025-02-17
Cite this document
“Exhibit A: Statement of Work, Datasite Diligence (Case 24-11217-BLS, Doc 989-1).”
Original at ecf.deb.uscourts.gov, dated 2025-02-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2025-02-17-street-address-agreement-2405234798-651d0256-1/
, SHA-256 651d0256d578d8991601b9c1d9394bf6dc6d57477e2d5d4fb40df79bdce3c775.Full text
Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 1 of 10
Exhibit A
Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 2 of 10
Statement of Work ("SOW"): Datasite Diligence
® TM
CUSTOMER & PROJECT INFORMATION (required) Is Customer same as Bill-To Company below? ,
Company: Vyaire Medical, Inc. Project Name: Crystal
Name: Rachel Lisenby Email: rachel.lisenby@vyaire.com
Title: AGC, Secretary
Street Address: 26125 N. Riverwoods Blvd. Agreement #: 2405234798
City: Mettawa State/Province: IL
Zip/Post Code: 60045 Country: USA
This SOW is governed by the General Terms and Conditions entitled "United States Terms and Conditions"
attached ("Legal Terms"), for this project and any subsequent project launched hereunder. Capitalized terms not
defined herein are as defined in the Legal Terms. If there is a conflict between the terms of this SOW and the Legal
Terms, the terms of the SOW will govern. This SOW is effective as of Customer's signature date, and if not dated,
the date when the Website is made available to Customer ("Effective Date").
DEFINITION OF SERVICE: Datasite Diligence®. The VDR "virtual data room" with complete support for sell and buy
side financial transactions.
TERM: This SOW has an "Initial Term" of six (6) months, beginning on the Go Live Date (defined below) and will
automatically renew on a month-to-month basis (each additional month being a "Renewal Term", collectively
together with the Initial Term, the "Term"), unless Customer's Administrator carries out Datasite's closing
instructions on the Website in order to provide advance written notice of Customer's intent not to renew the Term.
The "Go Live Date" is the earlier of (i) the date when the Website is made available to External Users or (ii) one-
hundred and twenty (120) days after the date the project is created. "External Users" are those Users who are
given access to the Website by Customer but are not employees, advisors, or agents of the Customer.
PRICING: All pricing in USD
NUMBER OF PAGES PRICE PER PAGE [USD]
Up to 5,000 $ 0.52
From 5,001 to 10,000 $ 0.50
10,001 + $ 0.48
A discount of 10% will apply at 'Go Live'
Pricing does not include shipping, Taxes or optional products and Services, which may include but are not limited
to items outlined below. Invoices are initiated on the Go Live Date and subsequently issued on a monthly basis
for additional PAGES processed to the project and any optional products and Services. If applicable, upon
entering into a Renewal Term, Customer will be invoiced for all Content hosted and processed in the staging folder
("Sandbox") at 50% of the Continuation rates described herein.
Quote Number: Q-650505
Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 3 of 10
Statement of Work ("SOW"): Datasite Diligence
® TM
OPTIONAL PRODUCTS AND SERVICES Price [USD]
Special media (e.g. video/audio/rar files) per MB $ 11.00
Continuation - per page per month $ 0.25
Hibernation - per page per month $ 0.13
Special media - Continuation, per month per MB $ 2.75
Special media - Hibernation, per month per MB $ 1.38
Encrypted media 1 included
Additional encrypted media $ 750.00
Redaction - standard included
Redaction AI - NEW! Advanced redaction toolkit extra fee
CUSTOMER SUPPORT: Datasite provides 24/7/365 customer support to address problems and answer questions.
®
SUBSEQUENT OR ADDITIONAL PROJECT: A new Diligence Project may be initiated by (a) Customer signing a
new SOW, or (b) an email request from Customer’s Administrator to service@datasite.com. Datasite requires a ®
satisfactory credit check on Customer prior to creating a project.
Bill-To Company Information (this section must be completed)
Bill-To Company: Vyaire Medical, Inc. Tax ID
Street Address: 26125 N. Riverwoods Blvd. PO Num:
City: Mettawa State/Province: IL
Zip/Post Code: 60045 Country: US
Bill-To Contact: Rachel Lisenby Bill-To Email: rachel.lisenby@vyaire.com
Customer: DATASITE LLC1
By (Signature): By (Signature):
Name (Print): Rachel Lisenby Name (Print): Kelly Weisenfels
Title: AGC, Secretary Title: Regional Sales Director
Date: May 8, 2024 Date: May 8, 2024
Note 1. Datasite LLC, a Delaware limited liability company, located 733 S. Marquette Ave, Minneapolis, MN 55402 USA
Quote Number: Q-650505
Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 4 of 10
United States General Terms and Conditions
Revision Date: 31 July 2023
These United States General Terms and Conditions (“Legal Terms”) when incorporated by a Statement of Work or
Order (each an “SOW”) shall govern the supply of Services (as defined below) and the Legal Terms and SOW
together constitute the entire agreement (collectively the “Agreement”) between Customer and the Datasite entity
(“Datasite”) (each a “Party” and together the “Parties”) named in the SOW. In the event of a conflict between the Legal
Terms and any SOW, the SOW shall govern. Capitalized terms not defined within the Legal Terms are defined in the
SOW.
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the
Party executing this Agreement.
“Availability Guarantee” means the Content being available at least 99.5% of the time measured on a monthly basis.
“Annual Minimum Fees” are as defined in the applicable SOW.
“Classified Information” means any information or material, regardless of the form, which for reasons of national
security, national defense, or foreign policy, has been specifically designated by a U.S. government or foreign
government agency as requiring protection against unauthorized disclosure, including information classified pursuant
to Executive Order 12958, as amended, or similar classification authorities.
“Confidential Information” means any information of a Party (including information obtained by a Party from one or
more of its Affiliates) disclosed before or after the Effective Date, either directly or indirectly, in writing or orally, or by
inspection of tangible objects which: (i) the disclosing Party identifies as confidential or proprietary; or (ii) reasonably
appears to be confidential or proprietary to the disclosing Party or its Affiliates because of legends or other marking,
the circumstances of its disclosure, or the nature of the information itself. Such information may include but is not
limited to Content, Third-Party Data, the Services, the Website, any inventions, trade secrets, marketing plans,
programs, source code, data and other documentation, customer and shareholder information, other information
related to the business of the disclosing Party, and the terms and pricing of this Agreement. The term Confidential
Information does not include: (i) information that was in the receiving Party’s possession or was known to it prior to its
receipt from the disclosing Party; (ii) information that is or becomes publicly available without the fault of the receiving
Party; (iii) information that is or becomes lawfully available on an unrestricted basis to the receiving Party from a
source other than the disclosing Party; (iv) Feedback; (v) Services Data; or (vi) information independently developed
by the receiving Party.
“Content” means any document or file that is uploaded to the Website by or on behalf of the Customer.
“Credit” is the applicable credit set forth in the table provided in Section 7(b)(ii).
“Customer Administrator” means any User authorized by Customer to initiate and conclude Services, upload and
manage Content, invite other Customer Administrators and Users (which may include third parties), and access
reports.
“Customer Material” means any Content and Customer’s trademarks and logos.
“Due Date” means the date the Customer receives the invoice from Datasite.
“Effective Date” is the date of Customer’s signature unless otherwise defined in the applicable SOW.
“Feedback” means suggestions, improvements, comments, or other feedback regarding the Website or Services.
“Fees” mean (i) the fees set forth in any SOW; or (ii) charges for Services not specified in any SOW (including without
limitation additional new service features), provided that Customer has approved any such additional Services and
related charges in advance in writing.
“Hibernation Period” means any time during a Renewal Term, when the Customer’s Administrator has requested a
project to be placed in hibernation.
“Hibernation Administrators” means Customer Administrators appointed by the Customer during the Hibernation
Period. No more than two shall be permitted.
“Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship,
including copyrights, moral rights, neighboring rights, and derivative works thereof; (ii) trademark and trade name
rights; (iii) trade secret rights; (iv) patents, design rights, and other industrial property rights; and (v) all other
intellectual property rights (of every kind and nature however designated) whether arising by operation of law, treaty,
contract, license, or otherwise, and together with all registrations, initial applications, renewals, extensions,
continuations, divisions, or reissues thereof.
“Non-Datasite Applications” mean web-based, mobile, offline, or other software applications provided by Customer or
a third-party which may interoperate with the Website.
“Order” means any Services provisioned or purchased using the Website.
“Renewal Term” is as defined in the applicable SOW.
“Scheduled Maintenance” means periodic maintenance on the Website for system upgrades and maintenance and as
further defined in Section 7(a)(xi).
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“Services” mean those services ordered by Customer under an SOW or Order and any related customer support.
“Services Data” means Content incorporated with or into similar information derived or obtained from other customers
of Datasite that has been anonymized or aggregated to remove references to numerical values, addresses, locations,
and personal data.
“Special Media” means all Content processed on the Website and not converted to PDF format because: (i) its
inherent nature precludes it from conversion to a PDF; or (ii) Customer Administrator has designated it as a
download-only file. Any examples of Special Media provided in any SOW are for representative example, illustration,
and/or convenience purposes only and are not intended to be an exhaustive list of all types of Special Media.
“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited
to any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, assessed by any
jurisdiction, but excluding taxes charged on the income, property, or employees of Datasite.
“Term” is as defined in the applicable SOW.
“Third-Party Data” means any data, including but not limited to Content, User Data, made available on the Website
(including through a Non-Datasite Application) that is owned by a third-party.
“Trial Services” mean beta or test services and such related documentation.
“Website” means collectively, those Datasite URLs, virtual data rooms (also referred to as projects), contents, and
features provided to Customer through which Users access, process, store, upload/download, and communicate
Content.
“Usage Data” means queries, logs, and other information about Customer’s or a User’s use of the Services, excluding
Content.
“Users” mean those individuals authorized by Customer, and enabled by Datasite or Customer, to access Content on
the Website.
“User Data” means information about or relating to Users.
2. Fees, Taxes, Billing Disputes.
Fees. Customer will provide all accurate “Bill-to” information reasonably necessary to issue an invoice.
Customer shall pay to Datasite all Fees invoiced under this Agreement, including any Fees invoiced to Customer and
any of its advisors in connection with the Services. Except as otherwise expressly specified herein or in the applicable
SOW, all payment obligations are non-cancelable, and Fees paid are non-refundable. Any Annual Minimum Fees
cannot be decreased during the relevant Term. All Fees are payable in the currency used or designated in the
applicable SOW. On each one-year anniversary of the Effective Date of an SOW, Datasite may adjust pricing by an
amount equal to the greater of: (i) six percent (6%); or (ii) the average of the monthly “All Groups” Consumer Price
Indices for the United States for the 12 months immediately preceding the adjustment date.
Payment. Unless otherwise specified in the applicable SOW and subject to Section 2(c) below, Customer shall pay to
Datasite all Fees owing under this Agreement on the Due Date. Fees or amounts not paid by this date shall be considered past
due. For any failure to pay past due Fees amounts or invoices by Due Date, Datasite may accelerate Customer’s unpaid Fees for
the full outstanding period of the Term and require immediate payment by Customer of such Fees and/or, following ten (10) days'
written notice to Customer, suspend Services until the outstanding amounts are paid in full. Interest may be added from the Due
Date to all past due invoices up to the highest rate permitted under applicable law. If Customer intends for any Fees charged under
this Agreement be paid by a third-party, then: (i) Customer will promptly notify Datasite in writing; (ii) Customer will provide all
accurate information reasonably necessary to issue the invoice to the third-party via either the SOW, email or through the Website
and work with Datasite to correct any problems or errors Datasite observes or discovers; (iii) payment of Fees from such third-party
to Datasite will be due on the Due Date; and (iv) Customer will not be relieved of its obligations to pay those or any other Fees to
Datasite. Payment of Fees shall not be conditioned upon completion of Customer on-boarding forms, purchase orders, or Datasite’s
use of Customer’s billing and other portals. Datasite shall be under no obligation to use any billing portal. Datasite reserves the right
to charge the Customer for any costs incurred to recover any amounts owed to it including, but not limited to, any debt recovery
services or other third-party services, including but not limited to, reasonable legal fees.
Payment Disputes. Notice of any disputed Fees, amounts, or invoices must be provided to Datasite via email
sent to billing@datasite.com not later than ten (10) days after the Due Date otherwise it shall be deemed accepted.
Notices must include details identifying the invoice by number and detailing the amounts in dispute. Upon receipt of the
dispute notice, Datasite will determine in its sole discretion, whether the charges in dispute were correctly issued and
notify Customer. If there has been an error, Datasite will work with Customer to correct the error and determine the
outcome.
Taxes. The Fees stated in any SOW do not include Taxes. Customer is responsible for paying all Taxes
associated with its purchases hereunder. If Datasite has a legal obligation to collect Taxes for which Customer is
responsible, Datasite will invoice Customer and Customer will pay the amount owing. If Customer is lawfully required
to withhold any sums from an invoice, Customer must effect such withholding and remit such amounts to the
appropriate taxing authorities, and ensure that, after such deduction or withholding, Datasite receives and retains, free
from liability for such deduction or withholding, a net amount equal to the amount Datasite would have received and
retained in the absence of such required deduction or withholding.
3. Ownership and Limited License.
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Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 6 of 10
Customer Ownership. As between the Parties, Customer shall have and retain all Intellectual Property
Rights in Customer Materials. Customer has sole responsibility for the accuracy, quality, legality, integrity, and
appropriateness of all data, content, and information it, or any of its Users, provides to Datasite in conjunction with the
Services. Customer hereby grants to Datasite a non-exclusive, irrevocable, fully paid-up, royalty-free, sub-licensable,
worldwide right and license to reproduce, distribute, use, and display the Customer Materials to the extent necessary
for Datasite: (i) to provide the Services to Customer; and (ii) for any other activities expressly agreed to by
Customer.
Datasite Ownership. As between the Parties, Datasite shall have and retain all Intellectual Property Rights
in materials, documentation, methodologies, source code, processes, websites, applications, and software that
Datasite uses for the purpose of providing the Website and Services, Feedback, Usage Data, and any and all
derivatives, future enhancements, or modifications to the foregoing, however produced. No Intellectual Property
Rights are granted to Customer under this Agreement or otherwise except as expressly set forth herein.
Services Data and User Data. Without limiting any other rights set forth herein, during and after the Term,
Customer agrees that Datasite may use, collect, and make derivatives of Services Data and User Data to develop,
improve, support, and operate its products and services, and to create and offer new products and services.
4. Warranties.
General Warranties. Each Party warrants that: (i) it has full power and authority to enter into and perform its
obligations under this Agreement; (ii) this Agreement has been duly executed and constitutes a valid and binding
agreement enforceable against such Party in accordance with its terms; (iii) it will comply with all laws applicable to
the Party; and (iv) it will use up-to-date, generally accepted virus and malicious software detection devices and
procedures to reasonably ensure that any electronic data transmitted to the other Party will not contain a virus
malicious software or other harmful component.
Datasite Warranties. During the Term, Datasite warrants that: (i) the Services will be rendered using
professional practices and in a competent and professional manner; and (ii) it has all necessary permissions, software
licenses, and ownership rights to provide the Services. Customer must provide written notice to Datasite of any
warranty claim. Such warranty shall apply only if the applicable Services have been used for their intended purpose
and in accordance with the applicable documentation, this Agreement, and any and all applicable law. In the event of
a breach of Section 4(b)(ii), Datasite may, in its sole discretion: (1) substitute substantially similar services; (2)
procure for Customer the right to continue using the Services; or if (1) and (2) are not commercially reasonable, (3)
terminate this Agreement and refund to Customer the Fees paid by Customer for the Services that were prepaid but
not used. This section sets out Datasite’s sole and exclusive liability, and Customer’s sole remedy, with respect to any
claim for breach of the warranty in Section 4(b)(ii) including cases where there is a claim by a third-party of
infringement of its intellectual property rights.
(c) Customer Warranties.
(i) Customer warrants that it: (1) has obtained all permissions and consents, provided all relevant notices, or
has established another legal basis required by law (as applicable) to transfer the Content and/or User Data so that
Datasite may lawfully use and process the Content and User Data in accordance with this Agreement, the Data
Processing Addendum when applicable, and in compliance with applicable data protection laws, including but not
limited to, any data localization or data sovereignty laws or regulations; (2) will use the Services for the intended
business purpose; (3) has delegated authority to its advisors and Customer Administrators to provide instructions in
connection with the Services, and Datasite has no duty to verify such delegation, and may rely on such instructions;
(4) will use reasonable endeavours to provide Datasite with clear and legible copies of the Content in the best possible
condition; (5) will cooperate with Datasite to correct any problems associated with the Content; (6) will comply with all
economic sanctions laws and not take any action which would place Datasite in a position of non-compliance with any
such economic sanctions laws; (7) will promptly report to Datasite any problems or errors it observes or discovers with
the Content; and (8) will immediately notify Datasite in writing of all court orders it receives which may restrict the use,
distribution, or disposition of any Content delivered to Datasite.
(ii) Customer additionally warrants that it will not: (1) use, nor permit any third-party to use, the Services in a
manner which would give rise to civil liability; (2) engage in, nor assist, encourage, or authorize others to engage in,
conduct which could constitute a criminal offense under any applicable law or regulation; (3) upload Content or use
Non-Datasite Applications which reasonably could infringe, misappropriate, or otherwise violate any Intellectual
Property Rights of any third-parties; (4) perform, nor permit or instruct any third-party to perform on its behalf, any
code review, vulnerability testing, penetration testing, or any other network tests on the Website or Services, or
attempt to gain unauthorized access to the Website, Services, or its related systems or networks; and (5) (except to
the extent that must be permitted by law) attempt to, nor permit or otherwise instruct any third-party attempt to,
reverse engineer, decompile, disassemble, create derivative works from, sell, market, transfer or otherwise seek to
obtain: (A) any Third-Party Data (excluding Content), (B) the source code for the Website, or (C) any other software
made available to Customer in connection with the Services.
(d) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE
FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, TRIAL SERVICES, AND WEBSITE(S) ARE PROVIDED
AS-IS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
MERCHANTABILITY OR OF SATISFACTORY QUALITY, OR THOSE ARISING FROM A COURSE OF DEALING,
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Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 7 of 10
USAGE, OR TRADE PRACTICE. THE ABOVE WARRANTIES DO NOT GUARANTEE THAT THE SERVICES WILL
BE SECURE, PERFORM UNINTERRUPTED OR ERROR-FREE, THAT DATASITE WILL BE ABLE TO CORRECT
ALL ERRORS, OR THAT THE SERVICES MEET CUSTOMER’S REQUIREMENTS. ANY SERVICES PROVIDED
AND DATA MADE AVAILABLE TO CUSTOMER (INCLUDING THIRD PARTY DATA) IN CONNECTION WITH THE
SERVICES OR THIS AGREEMENT ARE NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED UPON,
FOR LEGAL, TAX, FINANCIAL, INVESTMENT RECOMMENDATIONS, OR ANY OTHER TYPE OF ADVICE.
(e) Security Classified Information. THE SERVICES ARE EXPRESSLY PROHIBITED FROM BEING USED TO
STORE ANY CLASSIFIED INFORMATION ON THE WEBSITE. ACCORDINGLY, DATASITE DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ACCESSING OR STORING ANY CLASSIFIED
INFORMATION OR INFORMATION REQUIRING A SECURITY CLEARANCE FROM ANY GOVERNMENT AND
DATASITE SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE
OF THE SERVICES FOR SUCH INFORMATION.
5. Confidentiality.
Each Party shall: (i) hold Confidential Information of the other Party in confidence; (ii) not use any
Confidential Information of the other Party for any purpose outside the scope of this Agreement and, if applicable, the
Data Processing Addendum; (iii) take reasonable steps to maintain the confidentiality of all Confidential Information;
(iv) only disclose Confidential Information: (1) to such Party’s or its Affiliates employees who have a need to know
such information; or (2) for the purposes envisioned or intended under this Agreement. This Agreement expressly
supersedes and replaces in its entirety any non-disclosure agreement executed by Datasite arising out of or in
connection with this Agreement.
If a Party is compelled by court order, subpoena, or other requirement of law to disclose Confidential
Information, the Party will provide the other Party with prompt notice (unless such notice is prohibited) so that the
Party may, at its option and expense, seek a protective order or other remedy.
Upon termination of the Agreement, all Content uploaded to the Website by Customer shall be destroyed, or
in accordance with the applicable SOW, returned to the Customer. Upon Customer’s request, Datasite shall provide a
certification of deletion or destruction of the Content. Customer must pay all invoices in full prior to the release of any
Content under this section. Datasite shall not be obligated to immediately erase Content contained in an archived
computer system backup made in accordance with its security or disaster recovery procedures, provided that such
archived copy shall remain subject to the same obligations of confidentiality until destruction.
The Parties agree that Datasite does not receive any personal data as consideration for the Services.
Customer acknowledges that Datasite’s provision of the Services may involve the processing of personal data (as
defined by applicable data protection laws) which may include Datasite sharing such personal data with Customer’s
advisors, its authorized third-party Users or as otherwise for provided in the Agreement or the Data Processing
Addendum. Customer has sole responsibility for ensuring that personal data it provides to Datasite for processing
complies with applicable data protection laws. If Customer or Datasite is subject to data protection laws that require
entering into a Data Processing Addendum, Customer will download Datasite’s Data Processing Addendum available
at https://www.datasite.com/us/en/legal/services-agreement.html, sign it, and return it to privacy@datasite.com.
6. Limitation of Liability.
TO THE EXTENT PERMITTED BY ANY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY NOR ANY THIRD-PARTY UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN
TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, FOR ANY
PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS INCLUDING: LOSS OF PROFITS,
BUSINESS, GOODWILL, REPUTATION, OR OTHER LOSS RESULTING FROM BUSINESS INTERRUPTION
ARISING FROM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. UNLESS OTHERWISE STATED
HEREIN, THE PARTIES AGREE THAT THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE.
THE PARTIES AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE
LIABILITY OF EITHER PARTY UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN
TORT, UNDER WARRANTY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL PRICE PAID BY CUSTOMER
TO DATASITE UNDER THE APPLICABLE SOW FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE
FIRST EVENT GIVING RISE TO ANY LIABILITY EXCEPT FOR BREACH OF SECTIONS 5(a) AND 5(d) WHERE
THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY SHALL NOT EXCEED FIVE HUNDRED THOUSAND US
DOLLARS ($500,000 USD).
THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 6 OF THE LEGAL TERMS SHALL NOT APPLY TO:
(a) FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT; (b) A BREACH OF SECTIONS 3(b)
(DATASITE OWNERSHIP), 4(c) (CUSTOMER WARRANTIES), OR 9(d) (RESTRICTED PARTIES AND EXPORT
LAWS) OF THE LEGAL TERMS; OR (c) DAMAGES TO THE EXTENT CAUSED BY FRAUD OR A PARTY’S
WILLFUL MISCONDUCT.
7. Hosting Terms.
Usage.
(i) Website Management. By Customer’s Administrators accessing the Website or using the Services,
Customer agrees that these Legal Terms shall apply. Customer authorizes Datasite to act on any instructions
reasonably believed by Datasite to be authentic communications from Customer, its advisors, or Customer
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Administrators with respect to the management of Customer’s Website. Customer shall be responsible for monitoring
its and its Users’ use of the Services within the limits set out in the applicable SOW.
(ii) Obligations. Users must consent to the Terms of Use and Privacy Notice included in the Website which
may be amended from time to time. Customer is responsible for the use of the Website by any of its Users in
compliance with this Agreement. Datasite retains the right to remove authorization and access of any User from the
Services upon request of the employer of such User.
(iii) Go Live Date, Sandbox, Datasite Prepare. Prior to the Go Live Date, or if Customer elects to utilize the
Sandbox (as described in the applicable SOW) or the Datasite Prepare offering, Customer agrees only to use such
Services: (1) for the purpose of managing and distributing Content within the transaction team, including Customer’s
employees, agents, clients, and advisors in connection with an actual or proposed merger, acquisition, joint venture,
or other transaction involving the sale or exchange of assets or voting securities; or (2) for such other purpose as
expressly agreed to by the Parties in the applicable SOW. In respect of both (1) and (2) of this sub-section (iii), (3) the
Content shall not be made accessible to any third-party other than Customer’s agents, advisors, or clients. Datasite
retains, in its sole discretion, the right to terminate the Services if suspension is necessary to avoid harm to Datasite or
its business, or in the event Customer, or any of its Users, has violated this provision.
(iv) Continuation. When applicable, and upon Customer entering into a Renewal Term, Customer will be
invoiced for all Content hosted at the Continuation rate. For any additional Content processed during the Renewal
Term, Customer will be invoiced processing and hosting Fees at the Pricing and Continuation rates listed in the
applicable SOW. Fees incurred during the Renewal Term will not be prorated.
(v) Redaction. Upon Customer replacing redacted Content with its original version on the Website, Customer
will be charged for that replacement at the page, MB, or GB increments set for in the SOW.
(vi) Hibernation Period. During the Hibernation Period, the Customer acknowledges and agrees that: (1) only
the Hibernation Administrator will be able to access, view, edit, and add Content within the project; (2) all other Users
and Customer Administrators access will be withdrawn; (3) Hibernation Administrators will not be able to modify User
permissions in any way; and (4) Customer will be charged at the Hibernation rates as listed in the applicable SOW for
the duration of the Hibernation Period. Hibernation Administrators may terminate the Hibernation Period at any time
with prior written notice to Datasite.
(vii) Third-Party Data. Customer acknowledges and agrees that: (1) Users will have access (including to view,
download and query) to Third-Party Data and it is Customer’s sole responsibility to evaluate and assume the risks
related to sharing such Third-Party Data with Users; and (2) Datasite has no control over, and no liability whatsoever,
for any acts or omissions of any User with respect to Third-Party Data. Customer shall comply with any and all
applicable terms of service for any Third-Party Data. If Customer receives notice, including from Datasite, that Third-
Party Data may no longer be used or must be removed, modified, or deleted to avoid violating applicable law, third-
party rights, or this Agreement, Customer must promptly do so and provide Datasite written confirmation of such.
(viii) Trial Services. Datasite may make Trial Services available to Customer. Any Trial Services shall be
provided “As Is” and without any guarantee or warranty of any kind, express or implied. All confidentiality and
ownership rights applicable to Services generally under this Agreement, and all Customer obligations concerning the
Services and Content hereunder, shall also apply equally to Customer’s use of Trial Services. Datasite reserves the
right to discontinue the Trial Services at any time in its sole discretion and may never make them generally available.
Datasite shall have no liability for any harm or damage arising out of or in connection with the Trial Services. The
provision of any Trial Services to Customer may be subject to additional terms and conditions.
(ix) Integration with Non-Datasite Applications. The Website may contain features designed to interoperate
with Non-Datasite Applications. Datasite does not warrant or support Non-Datasite Applications, nor can it guarantee
the continue availability of such features. Datasite reserves the right to cease making available any Non-Datasite
Application without entitling Customer to any refund, credit, or other compensation. If Customer chooses to use a Non-
Datasite Application with the Website, Customer is responsible, and Datasite disclaims all liability, for the privacy or
security of such Non-Datasite Application, including but not limited to, any disclosure, modification, or deletion of data
resulting from a Non-Datasite Application or its provider. Customer agrees to comply with the terms of service of any
Non-Datasite Applications.
(x) Scheduled Maintenance. Datasite performs periodic Scheduled Maintenance and advance notice of such
is provided on the Website. Scheduled Maintenance will not exceed four (4) hours per calendar month. Datasite
reserves the right to update, modify, improve, support, and operate the Website and Services at any time. Any
updates or modifications will not materially diminish the functionality of the Website.
Service Level Agreements.
(i) Availability Guarantee Credits. As Customer’s sole and exclusive remedy, Datasite’s sole liability for any
month during the Term that Datasite fails to meet the Availability Guarantee is to provide Credits as set forth below.
(ii) For the applicable SOW, Customer may request Datasite provides Customer with the credits below,
provided Customer makes such request within twenty (20) days after Datasite’s failure to meet the Availability
Guarantee.
Actual Percentage the Content is Available Credit only for affected month
99.5% or more None
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Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 9 of 10
97% to less than 99.5% 10% of monthly Fees
96% to less than 97% 25% of monthly Fees
95% to less than 96% 50% of monthly Fees
(iii) If Datasite fails to meet the Availability Guarantee for less than 95% in any given month, Customer may
terminate the applicable SOW and request Datasite to deliver, as soon as commercially practicable, the Content on
the Website to Customer’s designee, provided Customer makes such request within twenty (20) days after Datasite’s
failure to meet the Availability Guarantee.
(iv) Availability Guarantee Exceptions. No period of inoperability will be included in calculating the
Availability Guarantee to the extent such downtime is due to: (1) Scheduled Maintenance; (2) failure of Customer’s or
its Users’ internet connectivity; (3) internet traffic problems of either Party other than problems arising from networks
controlled by Datasite; (4) any Force Majeure Event; or (5) Non-Datasite Applications.
8. Term & Termination.
Term. This Agreement is effective as of the Effective Date. The Initial Term and any Renewal Terms of an
SOW will remain in effect until terminated in accordance with its terms. In no event will termination relieve Customer of
its obligation to pay any Fees or amounts payable to Datasite under the applicable SOW.
Termination For Cause. A notice of default or breach from the non-breaching Party or an intent to default
from the breaching Party under this provision shall not constitute a notice of termination under this Agreement. Any
notice of termination must be provided separately in writing. Excluding Customer’s payment obligations which are
solely subject to Section 8(c), either Party may terminate this Agreement and all SOWs issued hereunder, in whole or
in part, with immediate effect upon written notice if the other Party:
(i) breaches any material obligation of this Agreement and either has not cured such breach within thirty
(30) days of receiving written notice from the non-breaching Party, or the breach cannot be cured within thirty (30)
days;
(ii) ceases to actively conduct its business or is unable to pay its debts as they fall due;
(iii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy;
(iv) makes a general assignment for the benefit of its creditors;
(v) applies for the appointment of a receiver, administrator, or trustee for all or substantially all of its property
or assets, or is permitted the appointment of any such receiver, administrator, or trustee; or
(vi) has its receivables subject to garnishment.
By Datasite Only. If Customer fails to: (i) execute and deliver to Datasite a signed SOW within ten (10) days
after the project is created; (ii) provide all accurate “bill-to” information reasonably necessary to issue an invoice; or (iii)
pay any invoice in full, within ten (10) days of notice of default, Datasite may, in its sole discretion, terminate this
Agreement and all SOWs issued hereunder, in whole or in part, and/or suspend or entirely cease provision of the
Services. Under such default, Datasite shall have no obligation to preserve or return any Content. Datasite may
immediately restrict or suspend access to the Services if Datasite becomes aware of, or reasonably suspects, any
breach of this Agreement by Customer or its Users. Datasite may remove any Content posted or transmitted through
the Website(s) which it deems in its sole discretion to have violated this Agreement or any applicable law, regulation,
or other legal requirement. Datasite will act in good faith and use reasonable endeavors to notify Customer via phone
or email prior to suspending or restricting any Service. Customer shall remain responsible for full payment of the Fees
and any amounts owed or owing under this Agreement and any SOW(s) even if access to the Services is suspended
or terminated for any breach of this Agreement.
Effect of Termination. The following will occur upon termination or expiration of the applicable SOW(s) or this
Agreement for any reason:
(i) Datasite will terminate Customer’s and all Users’ access to the Website(s).
(ii) Datasite will take reasonable efforts to promptly delete all of Customer’s Content maintained by Datasite
and Datasite’s obligation to provide the Services under the applicable SOW will cease.
9. General.
Affiliate. Datasite shall be entitled to perform any of its obligations and exercise any of its rights under the
Agreement through any Affiliate, provided that any act or omission of such Affiliate shall, for all purposes of this
Agreement, be deemed to be the act or omission of Datasite.
No Waiver. No failure or delay by either Party in exercising any of its rights under this Agreement shall be
deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall
be deemed to be a waiver of any subsequent breach of the same or any other provision.
Survival. The following Sections will survive expiration or termination of this Agreement: 1,2,3,5,6,8(d),9.
Restricted Parties and Export Laws. Customer represents that it is not and will not make the Website
available to any entity incorporated in or resident of a country subject to economic or trade sanctions by the U.S. State
Department and/or OFAC, or are listed as a “Specially Designated National,” a “Specially Designated Global
Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this section will
be a material breach of this Agreement and Datasite may immediately terminate this Agreement. Customer will not
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Case 24-11217-BLS Doc 989-1 Filed 02/17/25 Page 10 of 10
permit any User to access or use any Service or Website in a U.S. or UN-embargoed country or region, or in violation
of any U.S., UN, or international export law, sanction, or regulation. Customer is solely responsible for obtaining any
and all necessary export license(s) or other approval(s) to transfer Content in connection with its use of the Service.
No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights except as
expressly provided by its terms.
Assignment. Upon providing written notice, either Party may assign its rights, interests, and/or obligations
under this Agreement or any SOW to any parent, subsidiary, Affiliate, or to a successor of all its assets or stock.
Notwithstanding the forgoing, Customer may not assign its rights, interests, and/or obligations under this Agreement
or any SOW to any Datasite Competitor without Datasite’s prior written consent. For purposes of this section,
“Competitor” shall mean any entity which, either itself or has an Affiliate which, sells, licenses, or provides, any
software, application service or system comprised of one or more electric or digital document repositories for
facilitating transaction due diligence, mergers, acquisitions, divesture, financing, investment, investor or government
relations, research and development, clinical trials or other business processes in competition with any of the Services
or other services Datasite provides. This Agreement is binding upon and inure to the benefit of the Parties and their
respective successors and assigns.
Notices. Wherever provision is made in this Agreement for the giving, service, or delivery of any notice, such
notice shall be in writing and shall be given using a method providing for proof of delivery, which shall include
acknowledgement of receipt of email.
Force Majeure. Neither Party is responsible for any failure or delay in the performance of any obligation
under this Agreement to the extent the delay results from events beyond the reasonable control of such Party and is
not occasioned by such Party's fault ("Force Majeure"). If a delay or failure of a Party to comply with any obligation set
forth in this Agreement is caused by Force Majeure, that obligation (other than the obligation to pay money when due
and owing) will be suspended during the continuance of the Force Majeure condition and will not be considered a
breach of this Agreement.
Marketing Support. Upon the public announcement of an applicable transaction, Datasite may identify
Customer as a Datasite customer and use Customer’s name or logo on any Datasite websites or other marketing
materials.
Counterparts. Any SOW may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
Anti-Corruption and Bribery. Neither Party has received nor been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above
restriction.
Anti-slavery and Trafficking. Neither Party uses nor procures services in breach of anti-slavery and
trafficking laws.
Governing Law and Jurisdiction. This Agreement will be construed and enforced in accordance with the laws
of the State of Minnesota without regard to conflicts of laws provisions thereof, and without regard the Uniform
Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International
Sale of Goods (CISG). The jurisdiction and venue for actions related to the subject matter hereof will be the state and
United States federal district court located in Minneapolis, Minnesota and both parties hereby submit to the personal
jurisdiction of such courts.
Severability. If a court of law holds any provision of this Agreement to be illegal, invalid, or unenforceable
that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by
the original provision and the legality, validity, and enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
Entire Agreement. This Agreement, together with any applicable SOWs and Data Processing Addendum (if
executed), constitutes the entire agreement between the Parties and supersedes all previous agreements, proposals,
and negotiations, whether written or oral, regarding the subject matter herein. In entering into this Agreement neither
Party has relied on, and neither party will have any right or remedy based on, any statement, representation or
warranty (whether made negligently or innocently), except those expressly stated in this Agreement. No terms
contained in any Customer issued purchase order or similar form or invoice shall be valid or enforceable against
Datasite. No trade usage, regular industry practice, or method or course of dealing between the Parties shall be used
to modify, interpret, supplement, or alter the terms of this Agreement in any way. Any changes to the Legal Terms
must be agreed in writing by both Parties, provided that Datasite may modify the Legal Terms from time to time by
issuing new versions on the Website and the latest new version shall become effective on the creation of all
subsequent projects, or on entering into a new SOW.
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