Published on: 07th July 2021.
This Master Subscription Agreement is between Archarina, LLC (hereinafter “Archarina”) and You or the Entity you represent (hereinafter “You” or “Your”) to govern your use of the Archarina ArcSuite as outlined in your Archarina quote.
Archarina and/or its affiliates and licensors provide an array of services and software applications (hereinafter “ArcSuite Subscription Services” or “Services”). Archarina and/or its affiliates owns all ArcSuite Subscription Services, Professional Services, related documentation, software and any updates, new versions, and upgrades, if any.
This Agreement consists of the following terms and conditions surrounding the ArcSuite Subscription Services (“General Terms”) and the following terms and conditions surrounding any agreed upon professional services (“Service Terms”). The General Terms and Service Terms are collectively referred to as the “Terms”. In the event of a conflict between the General Terms and Service Terms, the General Terms shall prevail.
Archarina is willing to grant to You a limited license to access and use such services, subject to the General Terms and Service Terms of this Agreement. You may connect to the ArcSuite Subscription Services using any Internet browser supported by the Services. You are responsible for obtaining access to the internet and the equipment necessary to use the Services.
Subject to the General Terms, Archarina grants to You a worldwide, non-exclusive, non-sub-licensable, and non-transferable (except as otherwise set forth in this Agreement) limited license for End Users to access and use the ArcSuite Subscription Services in accordance with the terms of this Agreement. “End Users” means individuals (i) who are authorized by You to use and access the Service, and (ii) if necessary for access to the Service, have been assigned unique user identifications and passwords by Archarina. You are responsible for End Users’ compliance with this Agreement. If any licenses are found to be shared by and between unregistered and unauthorized End Users, Archarina reserves the right to terminate the Services and/or update the ArcSuite Subscription Fees. Archarina is entitled to the prorated portion of any unpaid earned Archarina Subscription Fees
The ArcSuite Subscription Services and Professional Services are available upon receipt of all fees or charges as specified on each executed Quote (“Fees”) between You and Archarina. Unless otherwise set forth in the applicable Quote, payment terms are net thirty (30) days from the date of invoice, without offsets or deductions of any kind, and payment is due in USD. Your ArcSuite Subscription will be automatically renewed at the end of each subscription period unless Archarina is informed in writing at least sixty (60) days prior to the termination of the subscription period. If You have not informed us that You do not wish to renew the subscription, Archarina will charge the next year’s subscription fee to the method of payment on file. From time to time, we may change the price of any Service or charge for use
of Services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle.
a. Unless otherwise permitted hereunder, Customer agrees NOT to:
b. Customer will promptly notify Company if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Service.
c. Company agrees NOT to:
d. Company will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, Customer passwords and Customer Data and notify Customer promptly upon discovery of any such unauthorized access or use of Customer passwords or Customer Data. Company will promptly notify Customer if it becomes aware that a Customer password is stolen, or a Customer password or Customer Data is disclosed to an unauthorized third party, or otherwise compromised.
You agree to be solely responsible for the contents of your transmissions through the Services. You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity.
Any personally identifiable information contained in the Services will be used by Archarina solely as set forth in this Agreement and for provision of the Services and will not be disclosed to third parties without Customer consent unless when Company believes in good faith that such disclosure is required by and in accordance with applicable law.
Outside of such disclosure conditions, you are responsible for maintaining confidentiality of all sensitive information and activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account in writing. We are not responsible for any loss or damage to you or any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.
“Customer Data” means all electronic data or information You provide to or allow the Services to access. You represent and warrant to Archarina that You or the organization you represent owns or otherwise has the legal right to use all Customer Data. You are solely responsible for complying with all legal requirements, including applicable privacy laws and regulations, related to the collection, use, processing, and transfer of Customer Data. You acknowledge and consent that the Service provided may require Customer Data to be transferred to a country outside of your country or the country where the Customer Data originated. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use Customer Data as provided to Archarina. Unless otherwise specified on a fully executed Quote, Archarina shall not be responsible for cleaning or correcting inaccuracies, errors or duplications in Customer Data. You understand and agree that inaccuracies, errors or duplications in Customer Data may negatively affect the quality, accuracy and usefulness of the results, including but not limited to identification of sales opportunities delivered as part of the Service. Archarina shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data except to the extent that any such deletion, destruction, damage, loss or failure is caused by the negligence or willful misconduct of Archarina or its employees or agents. It is the burden of you or the organization you represent to provide evidence of negligence or willful misconduct of Archarina or its employees or agents. Subject to the requirements provided herein, You agree that Archarina may access, store and process and otherwise modify, including deleting, Customer Data as appropriate, in order to provide the Service.
You acknowledge and agree that Archarina compiles and analyzes data and other information relating to the provision, use and performance of various aspects of the Service, customers, industries, products, services, systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (“Compiled Data”) and uses Compiled Data to build features and improve ArcSuite Services, the functionality and feature set of its services. Archarina shall have exclusive ownership of any Compiled Data and the exclusive right to use the same for any purpose, provided that Archarina shall not distribute any Compiled Data in a manner which identifies Customer business or Customer customers or any personal information of such business or customers.
Service may contain both open source code (“Open Source”) and proprietary third party code (together “TPS”) which is delivered to Customer as part of the Service and may not be taken out of the Service or used separately from the Service (“Embedded TPS”). Embedded TPS is included in the defined term “Service” and is covered by all of the terms of the Agreement, including but not limited to, the warranty and indemnification responsibilities of Archarina. Some terms related to Embedded TPS may be included in the Documentation due to requirements of the TPS licensor, however these terms will not (1) impose any additional restrictions on Your use of the Service, or (2) negate or amend Archarina’s responsibilities with respect to the Embedded TPS in the Service (or the Service itself). If the Open Source is also distributed separately by Archarina pursuant to requirements by the owner of the Open Source, then You may separately use the Open Source and such use will be subject to the separate license agreement that accompanies the Open Source and not the Archarina Agreement.
The Service may include certain communications from Archarina, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.
Archarina, Archarina logo, the names of individual ArcSuite Services and their logos are trademarks of Archarina. You agree not to display or use, in any manner, the Archarina trademarks, without Archarina’s express written prior permission.
We may modify the Terms upon notice to you at any time through a service announcement or by sending email to your primary email address. You may terminate your use of the Services by providing Archarina notice by email within 30 days of being notified of the availability of the modified Terms if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services.
The Initial Term of this Agreement shall begin on the date of execution and shall automatically renew at the end of the subscription period unless Archarina is informed in writing at least sixty (60) days prior to the end of the Term. The subscription period term is generally one (1) year, unless otherwise specified in the executed Quote between Archarina and you.
In the event that a Quote contains a Service added to an existing subscription, such added Service shall be billed on a pro-rated basis and will be coterminous with the Initial Service Term.
Either party may terminate this Agreement upon written notice to the other party immediately if (a) the other party breaches any material term of this Agreement and fails to cure such breach as specified herein or (b) if the parties are unable to agree, after commercially reasonable efforts, on changes in or modifications to the Quote or Agreement. In the event of a Termination due to either 3(a) or 3(b), Archarina shall promptly refund any prepaid and unearned fees to Customer. In the event of a Termination due to either 3(a) or 3(b), all rights and licenses granted by Archarina to You will terminate and You shall cease accessing or using the Service within a reasonable period of time. Archarina may include an automatic restraint within any client software provided to You and use such restraint to prevent use of the Service after termination of this Agreement. You acknowledge and agree that inclusion and use of such restraint is reasonable and appropriate and waive any right You might otherwise have to object to the inclusion or use of such restraint. Archarina is not obligated to retain any Customer Data for longer than seven (7) days after termination.
Archarina represents and warrants to Customer as follows: (a) the Service will perform substantially in accordance with Archarina’s latest Terms and Conditions under normal use and circumstances, and in the event of an amendment to such Terms and Conditions, You will be provided advance notice and will have the option of terminating the service at its sole discretion; (b) the Service will conform and perform in accordance with the applicable Quote in a timely and workmanlike manner. In the event of a breach of this warranty, Your sole warranty remedy and Archarina’s sole obligation will be for Archarina to make reasonable commercial efforts to correct the non-conformity or, if Archarina is unable to correct the non-conformity within ninety (90) days after written notice, for You to terminate the applicable Services.
NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR ANY ACTS OR OMISSIONS BY COMPANY’S THIRD PARTY VENDORS OR HOSTING PROVIDERS (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE PARTY AT FAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR GROSS NEGLIGENCE, EACH PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR ANY ACTS OR OMISSIONS BY COMPANY’S THIRD PARTY VENDORS OR HOSTING PROVIDERS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO LICENSE THE APPLICABLE SERVICE OR $100.
Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party”) from and against any and all losses, claims, lawsuits, and judgments (each, a “Claim”) to the extent arising from (i) a breach by the Indemnifying Party of its obligations hereunder or (ii) the negligence, recklessness or willful misconduct of the Indemnifying Party or (iii) with respect to Archarina as the Indemnifying Party, the negligence, recklessness or willful misconduct of Archarina’s third party vendors or hosting providers.
Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in New Jersey and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, Archarina may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach.
Neither party may assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of the other party, except to an entity that controls, is controlled by or is under common control with the assigning party or that purchases all or substantially all of the assets of the assigning party. For purposes of this subsection (c), “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or an entity, whether through ownership of voting securities or other interests, by contract or otherwise. For the purpose of clarity, if the assets of the organization You represent are acquired, merged, or otherwise subject to material change to the corporate structure as it is today, this Agreement must be assigned to the controlling entity.
You are duly authorized to execute this Agreement on behalf of the parties as per your executed Archarina quote.