LAST UPDATED: January 26, 2024

 

A. YOUR USE OF THE SOLUTION (DEFINED BELOW) IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF SERVICE. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SOLUTION AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS.

B. These Arcules Terms of Service (this “Agreement”) states the terms and conditions under which Arcules Inc. (collectively, “Arcules” or “We” or “Our” or “Us”) will agree to allow you, including without limitation the person or entity that You are working, consulting, or otherwise representing (“You” or “Your”) to use the Arcules cloud-based video management and access control solution (“Solution”). By accessing or using the Solution, You acknowledge and agree that You have read, accepted, and agree to be bound by and comply with the terms and conditions of this Agreement, as may be amended from time to time in accordance with this Agreement.  By accessing or using the Solution, You accept, without limitation or qualification, this Agreement.  If You do NOT accept this Agreement, You must immediately discontinue Your access and use of the Solution and You may NOT access or use the Solution.  Arcules and You (including without limitation, the person or entity that You are working, consulting, or otherwise representing) are also referred to herein individually as a “Party” and collectively as the “Parties.”  As it pertains to the person or entity that You are working, consulting, or otherwise representing, and if You are using the Solution on behalf of another person or entity, You hereby represent and warrant that You have the authority to bind such person or entity to this Agreement.

C. We may make changes to this Agreement from time to time. We may notify You of such changes by any reasonable means, including without limitation, by making available the revised version of this Agreement through or in connection with the Solution.  You can determine when We last changed this Agreement by referring to the “LAST UPDATED” legend above.  Your access to or use of the Solution following changes to this Agreement will constitute Your acceptance of those changes.  Your initial and continued use of the Solution may be subject to Your electronic acceptance (e.g., clickthrough) of this Agreement in connection with Your access to the Solution.

D. This Agreement also incorporates by reference the Data Processing Addendum (“DPA”) entered into between You and Us, if any. In the event of a conflict between the terms of this Agreement and the DPA, the DPA will control.

 

1.0     SUBSCRIPTION TERMS.

1.1     Solution.  The Solution is comprised of Your subscription as described in Your Ordering Document (defined below), the Embedded Software (defined below) and the Apps (defined below); but does not include Your internet browser (which serves as the primary access for the Solution), or Gateways (defined below).  For the avoidance of doubt, the Solution includes without limitation, the Apps, Arcules analytics and algorithms, Arcules applications within the Solution, and upgrades or changes We make to the Solution over time, and all related patents, copyrights, trademarks, trade secrets, software, technology, know-how, inventions (whether or not patentable), and all other proprietary and intellectual property rights related thereto (collectively, “IP”).  For the avoidance of doubt, the Solution does not include hardware (e.g., cameras, etc.) You purchase separately to be used in connection with the Solution, Other Applications (defined below), or any analytics or algorithms related to the foregoing.

(a)    License.  Subject to Your compliance with the terms and conditions in this Agreement and Your payment of any applicable fees, Arcules hereby grants to You a limited, revocable, non-exclusive, non-sublicensable, non-transferable, and non-assignable license only to install and use the Solution for Your applicable subscription term set forth in the Ordering Document; and for no other purpose or under any other condition whatsoever (“License”).  The License does not include any permission to create any Modifications (defined below) of or to the Solution.

(b)    Apps.  You may download Arcules mobile applications or installable clients to access the Solution (“Apps”), in addition to using the Arcules web browser.  When downloaded, the Apps may include a third-party license agreement that must be accepted by You.  For the avoidance of doubt, the terms of this Agreement and the License govern and control your use of the Solution (including the Apps), and the third-party license agreement associated with the download of the Apps will be preempted by this Agreement.

(c)    Embedded Software.  The “Embedded Software” are the portions of the Solution that are installed on certain equipment (e.g., the Gateway, cameras, etc.).  Subject to Your compliance with the terms and conditions in this Agreement, Arcules hereby grants to You a limited, non-exclusive, non-sublicensable, non-transferable, and non-assignable license only to install and use the Embedded Software on the applicable equipment for the term set forth in your Ordering Document and for no other purpose or under any other condition whatsoever (“Embedded Software License”).  The Embedded Software License does not include any permission to create any Modifications of or to the Solution. We warrant the Embedded Software will be substantially free from defects in workmanship and materials under normal use, maintenance, and service (“Embedded Software Warranty”), for a period of ninety (90) days which begins on the date the equipment is delivered to You (if You ordered from Arcules or the Integrator (defined below)) or when the Embedded Software is delivered to You (if Your ordered from a third-party).  Should the Embedded Software fail within this warranty period, Arcules or a third-party shall repair, replace, or provide an equivalent product/service, all to be determined in Our sole discretion.  To start the Embedded Software Warranty process, You must contact Arcules at support@arcules.com to receive a Return Material Authorization (“RMA”) number for the failed Embedded Software.  Upon receipt of the failed Embedded Software (remotely accessed by Arcules or a third-party or sent by You in accordance with the RMA instructions), or in the event that Arcules determines in its sole discretion that it will provide an on-site inspection of the failed Embedded Software, Arcules or a third-party shall inspect such Embedded Software to determine if it is proven to be defective.  If the Embedded Software is deemed to be defective (to be determined in Arcules or the third-party’s sole discretion), Arcules or a third-party shall either repair, replace, or provide an equivalent product/service to You.  Your exclusive remedy under the Embedded Software Warranty is to receive repaired or replaced Embedded Software or equivalent product/service, and Arcules’ sole obligation and liability under this Embedded Software Warranty is to ensure You are issued repaired or replaced Embedded Software or equivalent product/service.  Returns of Embedded Software without prior authorization by Arcules (via a RMA number) will be refused.  No RMAs will be issued after ninety (90) days from the date the equipment was delivered to You (if You ordered from Arcules or the Integrator) or the Embedded Software was delivered to You (if You ordered from a third-party).

(d)    Ownership.  You acknowledge and agree that Arcules owns all right, title, and interest in and to the Solution, including without limitation, all related IP rights, text, data, audio, graphics, files, interfaces, algorithms and other information and materials originating in the Solution, and any translations, improvements, corrections, adaptations, derivatives, enhancements, changes, additions, revisions, and other modifications (collectively, “Modifications”) made to the Solution.  All rights in and to the Solution not expressly granted in this Agreement are reserved to Arcules, and no additional licenses are granted or implied hereunder.

(e)    Ordering Document.  The “Ordering Document” is an agreement or other ordering document entered into physically or electronically between You and Your Integrator, or Arcules if You do not use an Integrator, that describes the term of Your subscription, locations where You will use the Solution, subscription cost, data retention period, warranty periods, restrictions, limitations, responsibilities, and other subscription details.  Since this Agreement governs Your access and use of the Solution, and is intended to be a complete document, any legal terms or conditions in an Ordering Document concerning the Solution or Your subscription will have no force or effect.  If there is a conflict between this Agreement and any term in an Ordering Document, this Agreement will take precedence and will govern and control.

(f)    Integrator.  In order to implement the Solution so You can access and use it, You need to work with Your security “Integrator” (defined as Your reseller or the company that orders, selects, and manages Your subscription for the Solution, security hardware, installation, maintenance, infrastructure, and/or support), to assist in ordering, selecting, managing, installing, and setting up Your subscription, hardware, and network and providing support and maintenance if You have any issues.  With respect to the Solution, the Gateway and other equipment, You hereby acknowledge and agree that in no event will Your Integrator be deemed to add or grant You any warranty which is greater than those described in this Agreement solely by virtue of the fact that Your Integrator has acted in a capacity of integrator or reseller to You, nor will it be deemed to assume any liability in excess of what Arcules assumes hereunder, except in a case of Your Integrator’s own willful misconduct or gross negligence.  In particular, You hereby agree that the exclusions and limitation of liability under Section 1.11 (Gateway) and Section 4.0 (Disclaimers; Limitations of Liability; Indemnification) shall operate to the benefit of Your Integrator to the same extent such provisions operate to the benefit of Arcules.  Arcules is not responsible for ordering, selecting, setting up, or managing Your cameras or network infrastructure, and You are solely responsible for ensuring You have the necessary systems, hardware, software, cameras, and network connectivity necessary to use the Solution.  YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE AN INTEGRATOR, ARCULES IS A THIRD-PARTY BENEFICIARY TO THE ORDERING DOCUMENT BETWEEN YOU AND YOUR INTEGRATOR, AND ARCULES HAS THE RIGHT TO ENFORCE SUCH ORDERING DOCUMENT DIRECTLY TO THE EXTENT SUCH ENFORCEMENT IS NECESSARY OR ADVISABLE TO PROTECT THE RIGHTS OF ARCULES.

(g)    Updates.  As the Solution is hosted in a cloud environment, Arcules can provide automatic updates.  Updates of the Apps, Gateways and Embedded Software on Your devices may be required for continued use of the Solution.  If You do not update the Apps, Gateways, and Embedded Software, Arcules does not guarantee continued support for the outdated versions of the Apps, Gateways, and Embedded Software, and Your access and use of the Solution with those outdated Apps, Gateways, and Embedded Software may be affected.

1.2     Your Content.  “Your Content” is all of Your data (including without limitation, all data of the person or entity You are using the Solution for, and all third-party data) in the Solution, which includes the A/V Data (defined below), connected devices data, user information, access-control information (physical access credentials), analytics data, structured, data and information related to the data and associated with “Other Applications” (defined as any “internet-of-things” connected devices, including without limitation, access control systems, third-party software, hardware, and analytics, and anything else not provided by Arcules).  In order to provide the Solution to You, You hereby grant Arcules a limited, sublicensable (through multiple tiers), assignable, and transferable license to Your Content to operate and maintain the Solution for Your benefit.  We agree to keep Your Content secure (as described in Sections 2.0 and 6.2).

(a)    A/V Data.  Arcules will access, listen, view, or use Your audio and/or video data (including without limitation, all audio and/or video data of the person or entity You are using the Solution for, and all third-party audio and/or video data) which You transmit through the Solution (“A/V Data”) for the purpose of fulfilling its obligations under this Agreement and the provision of the products, services, and support hereunder and in accordance with any authorization granted in the DPA.  Arcules will not access, listen, view, or use Your A/V Data for any other purpose without specific authorization from You.  Arcules will not share the A/V Data with any third-party without Your prior permission; however, in the following cases, Arcules may provide the A/V Data to a third-party without prior permission from You: (i) when required by law; (ii) when it is necessary to protect the life, body, or property of a person; (iii) when it is necessary to improve or promote public health or the sound development of children; (iv) when We are compelled or deem it advisable to cooperate with a governmental agency or respond to a legal request such as a subpoena or court order; (v) when the A/V Data is provided in connection with a merger, acquisition, or the transfer of the business or its assets; or (vi) as otherwise permitted herein or in the DPA.  Arcules will not use the A/V Data for marketing or advertising.

(b)    Other Data.  Your use of the Solution generates data that Arcules uses to improve and maintain its products.  You agree that We may collect, store, generate, and analyze such data, which may include meta-data, testing, analytical, diagnostic, and other usage data or statistics.  We will only use such data that is anonymized and does not contain any of Your personal information, and We will only use it to maintain and improve Our products, to verify compliance with this Agreement and terms of the subscription described in the Ordering Document, or as otherwise permitted in Our privacy policy and the DPA.

(c)    Feedback.  While You use the Solution, You may give us feedback, requirements, and other recommendations (collectively, “Feedback”) about the Solution.  You acknowledge and agree that We own all right, title, and interest in and to the Feedback so that We may freely use Feedback in any manner We deem appropriate.

(d)    Third-Party Provider.  The Solution is operated on cloud infrastructure and platforms provided by one or more third-party service providers, such as Google Cloud.  You hereby acknowledge and agree that any part of Your Content, which includes the A/V Data and any other data, may be forwarded to and stored in the servers of the third-party service providers which may be located outside of Your home jurisdiction.  Arcules will prohibit any such third-party service provider from accessing Your Content to the extent required by applicable law or the DPA.

1.3     SLA.  Arcules shall provide the Solution substantially in accordance with the Service Level Agreement as may be updated from time to time (“SLA”).

1.4     Unauthorized Use.  You hereby represent and warrant that You will NOT: (a) use the Solution in any way that would violate any applicable law, including without limitation, laws applicable to discrimination and human rights; (b) let any of Your employees, contractors, or others who You allow to access Your account (only for Your internal business purposes), use the Solution to store or transmit any data that infringes, violates, or misappropriates (collectively, “Infringes”) third-party rights, including without limitation, privacy, moral, or IP rights, or is libelous, fraudulent, obscene, defamatory, threatening, abusive, unlawful, tortious, pornographic, offensive, or otherwise harmful (as determined in Our sole and absolute discretion); (c) change, revise, or otherwise create Modifications of the Solution; (d) license, sublicense, sell, rent, lease, transfer, assign, distribute, time share, host, or otherwise commercially exploit the Solution; (e) reverse engineer, modify, decompile, or otherwise attempt to get the source code of the Solution, or work around technical protections or limitations in the Solution; (f) upload or store within the Solution any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files scripts, agents, or other programs; (g) interfere with or disrupt the integrity or performance of the Solution or data contained therein; or (h) attempt to gain unauthorized access to the Solution or its related systems or networks.  For the avoidance of doubt, if You share or distribute video or analytics data (including without limitation Your Content) that a third-party claim Infringes its rights, You hereby agree to indemnify, defend, and hold Arcules Indemnitees (defined below) pursuant to Section 4.3(c) hereof.

1.5     Access Information and Other Users.  You are responsible for: (a) maintaining the confidentiality of Your username, password, and any other log-in information for the Solution (“Access Information”); (b) any activities that occur under Your Access Information, including without limitation, any user You allow or otherwise authorize to access or use Your account, including the reseller or Integrator that sold You the subscription to the Solution, regardless of whether such access is provided directly by You or indirectly by Arcules per your instructions or other authorization (e.g., email); and (c) promptly notifying Arcules of any unauthorized access or use of the Solution.  You may provide access to Your Solution account to Your Integrator (or You may authorize Us in writing to add Your Integrator to Your account on Your behalf), but You may not give access to Your Solution account to any other third-party without Arcules’ prior written consent of its duly authorized representative.  You may not sell or provide access to Your account to Your customers, or provide user credentials as a service to any third-party, without Arcules’ prior written consent of its duly authorized representative.  You will systematically revoke user access when appropriate and maintain appropriate standards for user permissions and use of the Solution.  For the avoidance of doubt, neither Arcules nor Your Integrator will be responsible or liable for any costs, damages, fees, losses, or other liabilities resulting from Your failure to comply with this Section 1.5.

1.6     Consent to Operational Emails and Texts.  During the term of Your Solution subscription, We will need to communicate with You regarding the Solution, including without limitation, planned downtimes, features releases, account management, or other aspects of the Solution.  You agree that We may send You emails or text messages (depending on the information You provide and Your preferred communication method) for these purposes.

1.7    Your Responsibilities and Warranties.  You hereby represent and warrant that: (a) You have the authority to enter into this Agreement, including without limitation, if You are using the Solution on behalf of another person or entity, that You have the authority to enter into this Agreement on behalf of such person or entity; (b) You will comply with the terms and conditions of this Agreement; (c) You will comply with all laws and regulations applicable to You that concern (i) use or placement of video cameras, (ii) collection of the A/V Data and any analytics data (which may include any video and analytics data deemed to contain personal information), (iii) transference of such data to Arcules’ cloud environment, and the use of personal information by Arcules for the purposes specified herein; (d) if Your Content is governed by the laws of Japan, Your Content does not contain any Personal Data, Sensitive Personal Information, or Specific Personal Information stipulated in the “Personal Information Protection Law of Japan”, or, if Your Content contains such data, You have taken necessary measures as required by such law and/or “the Act on the Use of Numbers to Identify a Specific Individual in Administrative Procedures of Japan”; (e) You will only use the Solution for Your own internal business purposes and for crime prevention or legitimate surveillance; (f) You will not use the Solution in any hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the Solution could lead to death, personal injury, illness, or severe physical or property damage; (g) You have sole responsibility for the accuracy, quality, integrity, legality, reliability, privacy, use, and appropriateness of all Your Content and all liability related to the foregoing; (h) You will not permit users to whom You grant access to the Solution to use it in any U.S. embargoed country, or in violation of any U.S. export law; (i) if Your Content is governed by the laws of Japan, You will use the Solution only in Japan; (j) You have the right to grant Arcules any license provided for herein or in the DPA to use Your Content; and (k) Your Content does not infringe, violate, or misappropriate any IP right, moral, privacy, or other proprietary right of any third-party.  Arcules’ responsibility is to adhere to Your instructions regarding how to process any of Your Content or other data on Your behalf.  If You issue instructions to Us regarding the processing of Your Content or other data You transfer to Us (including without limitation, changing the location of servers housing Your data or changing any aspect of the Solution to adjust data flows), and such instructions would prevent or limit Our ability to provide the Solution, or require material or costly changes to it, We may suspend, limit, or otherwise adjust Your subscription without obligation to You after bringing the matter to Your attention.

1.8     Other Services.  Your Integrator is available to provide services to help select and purchase software and hardware, install and set up cameras and network infrastructure, implement and configure the Solution, and to provide support and maintenance if You have any issues.  If Arcules is to provide any of these services instead of the Integrator, those services will be specifically described in an Ordering Document.  Arcules does not otherwise provide professional services related to Your security hardware, infrastructure, and support.

1.9     Exceeding Subscription Parameters.  The Ordering Document and other supplemental documents supporting use cases describe terms of Your subscription, including without limitation, the maximum number of subscriptions to be used with the Solution, maximum storage constraints, resolution necessary to be used with the Solution, video and analytics data retention period, analytics usage, feature functionality, API usage, audio retrieval, storage, and analysis, forensic analysis, and other subscription-specific information, all of which determines the price for the subscription.  If You exceed or otherwise try to work-around any of the conditions described in the Ordering Document or other supplemental documents supporting use cases or change settings in such a way that would increase Arcules’ costs or otherwise cause Arcules undue burden of providing the Solution, then Arcules may suspend or otherwise limit Your use of the Solution.

1.10   Solution Integrity.  You are prohibited from breaching or attempting to breach any security features of the Solution, or from accessing it in ways other than those provided by Arcules.  This prohibition includes without limitation: (a) accessing content or materials not intended for You, or logging on to an account that You are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Solution unless We have given You prior written permission to do so; or (c) accessing or attempting to access the Solution by any means (automated or otherwise) other than through the currently-available, published, and enabled interfaces provided by Arcules.  You must not simulate the appearance or function of the Solution, or try to distribute it as Your own product, or remove any IP rights notices in the Solution.

1.11   Gateway.  If any third-party gateway device (the gateway operating with the Apps and which is purchased from Arcules or from Your Integrator, hereinafter, “Gateway”) is provided to You, the product warranty thereof depends on which Gateway You select and purchase, as follows:

(a)    Arcules-Supplied Gateway.  If You have purchased a Gateway from Arcules, the terms and conditions of the warranty shall be as set forth in the Ordering Document (“Gateway Warranty”).  If the Ordering Document is silent regarding a Gateway warranty, there is no warranty.  Should a Gateway fail within the warranty period detailed in the Ordering Document, Arcules or a third-party shall repair, replace, or provide an equivalent product/service, to be determined in Our sole discretion.  To start the Gateway Warranty process, You shall contact Arcules at support@arcules.com to receive a RMA number for the failed Gateway.  Upon receipt of the failed Gateway (sent by You in accordance with the RMA instructions) or in the event that Arcules determines in its sole discretion that it will provide an on-site inspection of the failed Gateway, Arcules or a third-party shall inspect such Gateway to determine if it is proven to be defective.  If the Gateway is deemed to be defective (to be determined in Arcules or the third-party’s sole discretion), Arcules or a third-party shall either repair, replace, or provide an equivalent product/service to You.  Your exclusive remedy under the Gateway Warranty is as described in the Ordering Document.  Returns of a Gateway without prior authorization by Arcules (via a RMA number) will be refused.  No RMAs will be issued after the warranty period described in the Ordering Document.  The Gateway Warranty is null and void if You do not remain a continuing subscriber of the Solution from the date the Gateway was delivered to You.  The Gateway Warranty does not cover: (i) any Gateway that was provided on an unpaid or free basis; (ii) defects to the Gateway due to accident, abuse, unauthorized use, service, alteration, modification, or improper installation or configuration by You, Your personnel, or any third-party not engaged by Us; or (iii) defects based on Your failure to use the Gateway in accordance with its documentation and this Agreement.  For the avoidance of doubt, the Gateway defined herein excludes any third-party equipment or other hardware not purchased from Arcules, directly or through Your Integrator.

(b)    Gateway Supplied by Your Integrator, But Not Arcules.  If You have purchased from Your Integrator any Gateway not supplied by Arcules, but supplied by a third-party, the terms and conditions of warranty, if any, shall be as set forth by the Integrator.  The warranty in Section 1.11(a) above does not apply to such Gateway.

(c)    Gateway Not Sourced from Arcules or Your Integrator.  The Gateway hereunder does not include any gateway devices that You have purchased from a third-party other than from (i) Arcules, directly or through Your Integrator (the warranty to which is set forth in Section 1.11(a)) or (ii) Your Integrator, whereby the Gateway is not supplied by Arcules (the warranty to which, if any, shall be pursuant to Section 1.11(b)).  The use of such gateways is Your sole responsibility; neither Arcules nor Your Integrator will assume any liability or responsibility whatsoever, with respect to, including without limitation, Your use, non-use, the warranties and obligations under this Agreement or SLA.  You acknowledge and agree that neither Arcules nor Your Integrator will be responsible for any third-party products not purchased through Arcules and Your Integrator.

1.12   Open Source.  Certain components or libraries included in the Solution may be covered by open source licenses.  To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this Agreement where appropriate, only with respect to those open source licenses.  You acknowledge and agree that You shall comply with such open-source license agreements.

 

2.0     CONFIDENTIALITY.

2.1     Duty.  The Party receiving (“Receiving Party”) Confidential Information (defined below) from the Party disclosing (“Disclosing Party”) such Confidential Information, will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information with the same degree of care, but in no event less than reasonable care, as used to protect the Receiving Party’s own Confidential Information of similar nature.  The Receiving Party will limit the distribution and communication of the Disclosing Party’s Confidential Information to employees, subcontractors, or other agents of the Receiving Party, who have a need to know such Confidential Information as necessary to perform its duties under this Agreement and shall have confidentiality obligations and restrictions at least as strong as the ones in this Agreement.  The Receiving Party shall not disassemble, reverse engineer, or otherwise decompile any of the Disclosing Party’s Confidential Information.  The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.

2.2     Confidential Information.  “Confidential Information” means any non-public, proprietary, or confidential information provided by the Disclosing Party, either directly or indirectly, to the Receiving Party under this Agreement that: (a) if in tangible or written information or materials, is marked as “confidential” (or with words of similar meaning); and (b) any disclosed information (whether disclosed orally or otherwise) that should reasonably be understood to be confidential or proprietary given the nature of the information and circumstance of its disclosure.  Your Confidential Information includes without limitation, Your Content and Access Information.  Arcules Confidential Information includes without limitation, the Solution, Arcules Embedded Software, No-Charge Offerings (defined below), specifications, development plans, related information, and IP rights therein.

2.3     Exclusions.  The obligations described above will not apply to any Confidential Information to the extent the Receiving Party can prove with its previous written records that such information: (a) was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the Receiving Party; (b) was known to the Receiving Party, without restriction, at the time of disclosure; (c) was independently developed by the Receiving Party without any access to or use of the Disclosing Party’s Confidential Information; (d) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party; or (e) is disclosed by the disclosing Party to any third-party under no obligation of confidentiality to the Disclosing Party.

2.4     Compelled and Other Disclosure.  If the Receiving Party is required, pursuant to a legal proceeding or other legal or regulatory requirement, to disclose any Disclosing Party Confidential Information (or Your Content, in the case of Arcules’ compelled disclosure by a governmental entity), reasonable prior notice will be given (to the extent allowed) to Disclosing Party in order to contest, seek a protective order, or otherwise limit such disclosure.  The Receiving Party shall reasonably cooperate with the Disclosing Party’s application for a protective order or other remedy, and the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.  Either Party may disclose this Agreement or the terms herein to such Party’s financial and legal advisers and current and potential lenders, acquirors, and investors under written terms of confidentiality.  Nothing in this Agreement or any other agreement will be construed to preclude either Party from: (a) compliance with disclosure obligations imposed by the securities laws or regulations of any government entity or public stock exchange, and each Party consents to disclosures as required by such laws or regulations; or (b) disclosing this Agreement or the terms herein to such Party’s financial and legal advisers and current and potential lenders, acquirors, and investors in connection with any due diligence inquiry.

 

3.0     PAYMENT.

3.1     Payments.  You will pay subscription fees described in the Ordering Document to Your Integrator (or to Arcules, if there is no Integrator involved), within thirty (30) days after the subscription term begins (or other time period You negotiated with the Integrator, in which case such time period governs).  Payments will be made via the method designated in the Ordering Document.  All payments and payment obligations for the subscription term are non-cancelable and non-refundable.  If You are delinquent in the payment of any fee, Arcules may at its sole option suspend access to the Solution until such payment is made in full (with interest, if applicable).  For payments due directly to Arcules, payment will be made without deduction, counterclaim, or set-off, and any payments that are not timely paid as provided hereunder will, at Arcules’ sole option, bear interest at the rate of the lower of: (a) 1.5% per month; or (b) the highest rate permitted by applicable law.  If Arcules or the Integrator provides You notice of a price increase prior to the end of Your current subscription term, the price increase shall be effective upon auto-renewal.

3.2     Taxes.  You will be responsible for the payment of all taxes which may be levied or assessed in connection with the Solution and this Agreement, excluding taxes based on Arcules’ net income.

 

4.0     DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION.

4.1     DISCLAIMER.  THIS SECTION 4.1 LIMITS OUR LIABILITY, SO PLEASE READ IT CAREFULLY.  EXCLUDING THE LIMITED EMBEDDED SOFTWARE WARRANTY (DESCRIBED IN SECTION 1.1(C)) AND THE LIMITED GATEWAY WARRANTY (DESCRIBED IN SECTION 1.11(A)), THE SOLUTION IS PROVIDED “AS-IS” AND ARCULES HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SOLUTION, THE GATEWAY, SUPPORT, SERVICE LEVELS, AND ARCULES CONFIDENTIAL INFORMATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SECURITY, TITLE, AND NON-INFRINGEMENT.  EXCLUDING THE LIMITED EMBEDDED SOFTWARE WARRANTY AND THE LIMITED GATEWAY WARRANTY, WE DO NOT WARRANT THAT THE SOLUTION, GATEWAY, SUPPORT, SERVICE LEVELS, OR ARCULES CONFIDENTIAL INFORMATION WILL PERFORM WITHOUT ERROR OR INTERRUPTION OR THAT UNAUTHORIZED PARTIES WILL NEVER BE ABLE TO CIRCUMVENT ARCULES’ OR OTHER THIRD-PARTY PROVIDER’S SECURITY.  IN PARTICULAR, YOU ACKNOWLEDGE AND AGREE THAT ARCULES DOES NOT WARRANT THAT THE SOLUTION WILL AT ALL TIMES AND WITHOUT INTERRUPTION BE CAPABLE OF STORING OR TRANSMITTING YOUR CONTENT, AND THAT THERE MAY BE A CASE WHERE YOU MAY NOT STORE OR ACCESS YOUR CONTENT DUE TO REASONS FOR DEFECTS, FAILURE, OR DISRUPTION OF THIRD-PARTY SERVICE PROVIDER’S EQUIPMENT, SOFTWARE, THE COMMUNICATION NETWORK, AND THE LIKE.  YOU AGREE THAT YOUR PURCHASE OF THE SOLUTION IS NOT DEPENDENT ON THE AVAILABILITY OF ANY FUTURE FEATURES OR FUNCTIONALITY.  YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ANY AUTOMATION FUNCTIONS, INCLUDING WITHOUT LIMITATION, SETTINGS RELATED TO ACCESS CONTROL, SECURITY, INFORMATION OR DATA GATHERED, ANALYTICS NOTIFICATIONS, “RULES” IN THE SYSTEM, AND OTHER APPLICATIONS.  WE ARE NOT RESPONSIBLE FOR OTHER APPLICATIONS (INCLUDING WITHOUT LIMITATION, THEIR AVAILABILITY, ACCURACY, SECURITY, OR FUNCTIONING, OR ANY ERRORS, LOSS, OR DAMAGE OTHER APPLICATIONS MIGHT GENERATE OR CAUSE), YOUR MANAGEMENT OF SECURITY IN THE SOLUTION OR GATEWAYS, YOUR PHYSICAL PREMISES SECURITY, ANALYTICS PERFORMANCE, VIDEO AND ANALYTICS DATA GENERATED, OR ISSUES CONCERNING YOUR ACCESS CONTROL SYSTEM, CAMERA PLACEMENT, OR CAMERA USE POLICIES.

(a)    No Security.  You understand that use of the Solution requires transmission of Your Content over the Internet and through networks that are not owned, operated, or controlled by Arcules, and Arcules will not be responsible for any of Your Content lost, altered, intercepted, or stored across those networks.  Arcules does not guarantee that its security procedures will be error-free, that transmissions of Your Content or other data will always be secure, or that unauthorized third-parties will never be able to defeat Arcules’ security measures or those of its third-party service providers.  Accordingly, Arcules will not be liable for loss of Your content, unauthorized use or disclosure of Your content (even if considered Your Confidential Information), including without limitation, interruption of use of the Solution, or special damages for cost of cover or replacement.

(b)    High Risk.  Arcules shall not be liable to You for use of the Solution in hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the Solution could lead to death, illness, personal injury, or severe physical or property damage.  Such use is at Your own risk, even if Arcules knows of such use, and Arcules expressly disclaims any express or implied warranty of fitness for such high-risk activities.

(c)    Disclaimer of Liability For Third-Party Products.  ARCULES DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR THIRD-PARTY PRODUCTS SUCH AS THE CAMERAS PURCHASED FROM THIRD-PARTIES BY YOU OR YOUR INTEGRATOR AND USED IN CONNECTION WITH THE SOLUTION.  YOU ACKNOWLEDGE THAT NO REPRESENTATION HAS BEEN MADE BY ARCULES AS TO THE FITNESS OF THE THIRD-PARTY PRODUCTS FOR YOUR INTENDED PURPOSE.

4.2     Limitation of Liability.  THIS SECTION 4.2 LIMITS THE LIABILITY OF BOTH PARTIES.

(a)    Indirect Damages.  Other than for Your violation of Section 1.4 (Unauthorized Use), to the maximum extent allowed under law, neither Arcules, its Integrators, nor You will be liable to the other Party or any third-party for any indirect, punitive, special, incidental, or consequential damages, or for interruption of business, loss of profits, or revenue, even if either Party has been previously advised about the possibility or is aware of such damages, and whether any such claim is based in tort or contract.

(b)    Direct Damages.  To the maximum extent allowed under applicable law, Arcules’, its Integrators’ and Your liability for direct damages related to this Agreement will be limited to direct damages actually incurred up to the amount of fees paid or payable for Your subscription to the Solution during the six (6) months prior to the event giving rise to the claim, whether the claim is based in negligence, strict liability, breach of contract, warranty, or other contract or tort claim.  This limitation on direct damages will not apply to: (i) Your payment obligations; (ii) a Party’s breach of confidentiality obligations described in this Agreement; (iii) damages caused by either Party’s (or an Integrator’s) willful misconduct or gross negligence under this Agreement; or (iv) to amounts payable under a Party’s indemnification obligations described in this Agreement.  Each Party agrees that it is not owed any duties or remedies not expressly described in this Agreement.

4.3     Indemnification.

(a)    By Arcules.  If a claim by a third-party is brought against You that alleges the Solution, as made available to You, infringes any U.S. IP right, or that an action by Arcules resulted in bodily injury, death, or physical property damage, then Arcules will defend You against the claim, and indemnify You against any damages that might result.  This protection extends to You and Your officers, directors, and employees (“Your Indemnified Party(ies)”).  If such a claim is made against You, You must provide Arcules with: (i) prompt written notice of the claim; (ii) all necessary assistance, information, and authority necessary for Arcules to defend the claim and perform its obligations under this Section 4.3; and (iii) sole control of the defense of such claim and all associated settlement negotiations.  Arcules may not settle any claim against You that does not fully and unconditionally release Your Indemnified Parties from any liability for the indemnified claim.  If a claim of IP right infringement is made or appears likely to be made with respect to the Solution, Arcules may, at its expense and sole choice: (i) enable You to continue to use the affected Solution by modifying it to make it non-infringing or by replacing all or portions of the Solution with a substantially functional, non-infringing equivalent; or (ii) terminate this Agreement in whole or with respect to the affected Solution and provide You with a pro-rated refund of pre-paid fees paid based on the effective date of termination and the then remaining term of the applicable subscription, if any (the refund may be through Your Integrator).  For purposes of clarification, the indemnifications set forth in this Section will be provided by Arcules directly to You.  Your Integrator will not assume any responsibility as to a claim of IP right infringement by a third-party.

(b)    Exclusions From IP Indemnification.  Arcules will have no liability or responsibility to defend or indemnify Your Indemnified Parties under Section 4.3(a) for any IP infringement claim based upon: (i) any information, data, component, or application that is not exclusively owned by Arcules (including without limitation, uploaded video recordings, video and analytics data, Gateways and Other Applications); (ii) any Modification of the Solution by a party other than Arcules; (iii) the use of other than the latest release of the Solution if such claim could have been avoided by use of such release; or (iv) Your continuance of allegedly infringing activity after being notified about the infringement claim, or after being notified of Modifications that would have avoided the alleged infringement.

(c)    By You.  If a claim by a third-party is brought against Arcules or its affiliates, Your Integrator, and their respective officers, directors, employees, or agents (“Arcules Indemnitees”) alleging damages arising from Your violation of Sections 1.4 (Unauthorized Use), 1.5 (Access Information and Other Users), 1.7 (Your Responsibilities and Warranties), Your Content, Your access control configurations, or Your collection of video and analytics data that is not in compliance with applicable laws, then You will defend the Arcules Indemnitees against the claim, and indemnify and hold harmless the Arcules Indemnitees against any damages that might result.  In the event of such a claim, Arcules will provide You with: (i) prompt written notice of the claim; (ii) all necessary assistance, information and authority necessary for You to defend the claim; and (iii) sole control of the defense of such claim and all associated settlement negotiations.  You may not settle any claim that does not fully and unconditionally release the Arcules Indemnitees from any and all liability for the indemnified claim.

 

5.0     TERM & TERMINATION.

5.1     Term.  The term of Your subscription is described in Your Ordering Document.  Unless earlier terminated pursuant to this Agreement, this Agreement will remain in effect for so long as You are subscribed to the Solution.  Except for Your termination due to Arcules’ failure to timely cure its material breach pursuant to Section 5.2, the subscription term is non-cancelable and the fees are non-refundable.  ALL SUBSCRIPTIONS WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS EQUAL TO THE EXPIRING SUBSCRIPTION TERM, UNLESS A PARTY (OR THE INTEGRATOR, IF APPLICABLE) GIVES THE OTHER PARTY (OR THE INTEGRATOR, IF APPLICABLE), THIRTY (30) DAYS PRIOR WRITTEN NOTICE OF NON-RENEWAL BEFORE THE END OF YOUR CURRENT SUBSCRIPTION TERM. For the avoidance of doubt, notice must be received by Arcules (not the Integrator) to be an effective termination notice.

5.2     Termination For Material Breach.  If a Party breaches a material term of this Agreement, the subscription may be terminable for cause by the non-breaching Party.  In such event, the non-breaching Party will give written notice of the breach to the breaching Party, and if the breach can be reasonably cured, then the breaching Party will have the opportunity to do so.  If the breach is not substantially cured within thirty (30) days from receipt of the written notice, the non-breaching Party may notify the breaching Party in writing of the immediate termination of all applicable subscriptions.

5.3     Effect.  You are solely responsible for retrieval of Your Content prior to termination of Your subscription, and Arcules will be under no obligation to store, maintain, or otherwise provide any of Your Content after termination.  If You choose to export Your Content from the cloud environment, You are obligated to reimburse Arcules for fees charged by the cloud service provider hosting Your Content.  Upon termination, all access and licensed rights under this Agreement (including without limitation, the License), will automatically terminate and revert to Arcules or the applicable licensor, and You will promptly: (a) return or destroy all copies of Arcules Confidential Information; (b) cease all use of the Solution and Gateways (unless the Gateway was purchased by You); and (c) pay all outstanding fees owed to the Integrator or Arcules, including without limitation, all fees applicable to the remaining term of the subscription.  Except for Your termination due to Arcules’ failure to timely cure its material breach pursuant to Section 5.2, termination will not relieve You of the obligation to pay fees payable for the period prior to the effective date of termination.  If You terminate this Agreement due to Arcules’ failure to timely cure its material breach pursuant to Section 5.2, Arcules shall refund You an amount equal to a pro-rated portion of the prepaid fees for the Solution for the remainder of the subscription term, as of the effective date of termination.

5.4     Survival.  All terms and provisions herein, which by their nature should survive expiration or termination of this Agreement, shall so survive.  Without limiting the foregoing, Sections 1.1(d) (Ownership), 1.2(c) (Feedback), 1.4 (Unauthorized Use), 1.5 (Access Information and Other Users), 1.7 (Your Responsibilities and Warranties), 1.10 (Solution Integrity), 2.0 (Confidentiality), 3.0 (Payment), 4.0 (Disclaimers; Limitations of Liability; Indemnification), 5.3 (Effect), this Section 5.4 (Survival), Section 6.4 (No-Charge Offerings), and 7.0 (General Provisions), shall survive any expiration or termination of this Agreement.

 

6.0     ARCULES RESPONSIBILITIES.

6.1     By Arcules.  Arcules represents and warrants that it has the authority to enter into this Agreement and any services described in an Ordering Document that is provided directly by Arcules, will be performed in a professional and workmanlike manner.

6.2     Protection of Your Content.  Subject to Section 4.1(a) hereof, Arcules will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Content.  Those safeguards will include efforts to help prevent access, use, modification, or disclosure of Your Content by any third-party, and by Arcules personnel, except: (a) to provide the Solution and prevent or address service or technical problems; (b) as compelled by law in accordance with Section 1.2 or Section 2.4; or (c) as You expressly permit in writing (email sufficient).  Arcules will access and view Your Content only for the purpose for the performance of its obligations under this Agreement and the provision of the products, service, or support hereunder including as permitted by this Agreement, the Ordering Document, and the DPA.  As part of the functionalities of the Solution, You may configure the personal information settings in a way that is not compliant with applicable law and regulations.  You acknowledge and agree that Arcules will not be liable for any damage, loss, or claim whatsoever which arise as a result of any action taken by Arcules in reliance on such settings.

6.3     Personnel.  Arcules will remain responsible for the acts and omissions of its personnel and subcontractors (but not Your Integrator), and their compliance with Arcules’ obligations described in this Agreement.  You will remain fully responsible and liable for the acts and omissions of Your employees, contractors, agents, personnel and other users, and their full compliance with Your obligations described in this Agreement.

6.4     No-Charge Offerings.  Arcules may offer certain functionalities, analytics, products, services, or Solution features or functionalities to You at no charge, including free accounts, trial use, and access to Beta Versions (defined below) (collectively, “No-Charge Offerings”).  Your use of No-Charge Offerings is subject to the terms of this Agreement and any additional terms that Arcules may specify at the time they are made available, and are only permitted for the period designated by Arcules.  Your restrictions and obligations continue to apply to No-Charge Offerings.  Arcules may terminate Your right to use No-Charge Offerings at any time in Arcules’ sole discretion, without liability to You.  You understand and agree that any Arcules pre-release and beta products, features, analytics, or functionalities Arcules makes available (“Beta Versions”) are still under development, may be inoperable or incomplete, and are likely to contain more errors and bugs than generally available products.  Arcules makes no promises that any Beta Versions will ever be made generally-available.  In some circumstances, Arcules may charge a fee to allow You access Beta Versions.  All information regarding the characteristics, features, or performance of No-Charge Offerings constitutes Arcules’ Confidential Information.  Any equipment (including without limitation, cameras or gateways) provided as part of a No-Charge Offering shall be returned at the termination of such No-Charge Offering; failure to return the equipment is subject to payment obligation pursuant to the Ordering Document executed at the initiation of the No-Charge Offering.  For the avoidance of doubt, the No-Charge Offerings are not part of the Solution and the No-Charge Offerings are provided AS-IS, the SLA does not apply, Arcules disclaims all obligations and liabilities with respect to No-Charge Offerings and Arcules will not provide any indemnification related thereto.

 

7.0     GENERAL PROVISIONS.

7.1     No Trademarks or Marketing.  Neither Party is granted any right in the other Party’s trademarks without the other Party’s prior written consent.  With Your written approval (email sufficient), Arcules may identify You as a customer on its website and marketing material.

7.2     Force Majeure.  Other than for Your payment obligations, if a Party fails its obligations under this Agreement due to a cause beyond the reasonable control of that Party, then that obligation will be excused for the duration of that cause.  Such delay or failure to meet obligations will not give rise to any claim against that Party even if it could otherwise be deemed a breach of this Agreement.

7.3     Governing Law; Limitations.  This Agreement and any dispute between You and Arcules (including without limitation, tort or contract claims), will be governed by the laws of California, despite the choice of laws rules of any jurisdiction to the contrary.  Any claim or cause of action arising out of this Agreement or Your use of the Solution must be filed within one (1) year after such claim or cause of action arises or be forever barred.  The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.  The Uniform Computer Information Transactions Act shall not apply to this Agreement.

7.4     Dispute Resolution.  Any disputes between the Parties or claims brought by either Party that relate to the Solution or this Agreement (including without limitation tort and contract claims), and the arbitrability of any disputes (subject to the exception in this Section 7.4) will be settled by binding arbitration before JAMS (www.jamsadr.com) under its comprehensive and expedited arbitration rules in effect at the time of arbitration.  The venue for the arbitration will be Irvine, California.  The arbitration will be conducted by telephone, on-line or based solely upon written submissions where no in-person appearance is required.  The arbitrator will apply the governing law specified in Section 7.3.  All awards may be enforced by any court having jurisdiction, if necessary.  The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards, must be kept confidential.  Except as required by law, no Party will make any public announcements about the proceeding or the award, except as may be required to enforce it.  The Parties agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.  All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action.  The arbitrator does not have the power to vary these provisions.  All claims (excluding requests for injunctive, provisional, or equitable relief) between the Parties must be resolved using arbitration in accordance with this Section 7.4.  Should either Party file an action contrary to this Section 7.4, the other Party may recover lawyers’ fees and costs associated with enforcing this Section 7.4, if the Party seeking the award has notified the other Party in writing of the improperly filed claim, and the other Party has failed to withdraw the claim in a timely fashion.  Nothing in this Section 7.4 will preclude the right and ability of either Party to bypass arbitration and file and maintain at any time in any court of competent jurisdiction (located in Orange County, California), under applicable laws an action for recovery of injunctive, provisional, or equitable relief (and either Party’s right to do so is not arbitrable).

7.5     Assignment.  You will not assign, delegate, or transfer, in whole or in part, this Agreement or any subscription, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without receiving advance written approval from a duly authorized representative of Arcules.  Arcules may at any time assign, subcontract, delegate, or transfer, in whole or in part, obligations under this Agreement after giving prior notice to You (and We will get Your approval before delegating obligations if We are obligated to do so by a data protection or privacy law, such as GDPR or the laws of Japan).  This Agreement will be binding on, and inure to the benefit of, the Parties and their respective and permitted successors and assigns.

7.6     Injunctive Relief; Prevailing Party.  A Party prevailing in any litigation or arbitration related to this Agreement or the subject matter hereof will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys’ fees.

7.7     Miscellaneous.  This Agreement, the Ordering Document (but not any legal terms or conflicting terms in the Ordering Document), the DPA, the SLA, and other supplemental documents supporting use cases, all incorporated herein by this reference, constitute the entire agreement relating to its subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations warranties, agreements, or other communications and prevails over any conflicting or additional terms of any quote, order, or other communication between the Parties relating to its subject matter.  If any provision of this Agreement is found by a court or arbitrator to be invalid, the Parties agree that the court or arbitrator should try to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.  No waiver of any provision of this Agreement will be deemed a further waiver or continuing waiver of that provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of that right or provision.  Nothing in this Agreement will be deemed to create an agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship between the Parties and any user or other person or entity, nor do these terms extend rights to any third-party.  In the event there is a conflict between translations of this Agreement, the English version shall prevail.

7.8     Notices.  Except for the email or electronic delivery of operational communications regarding Your use of the Solution and as otherwise noted in this Agreement, notices required by this Agreement or law must be in writing and will be delivered by personal delivery or first-class mail, and will be deemed delivered three (3) days after they are sent.  Notices for Arcules will be sent to: Arcules Inc., Attn: Legal Department, 17875 Von Karman Ave., Suite 450, Irvine, California 92614, with a copy emailed to Legal@arcules.com.  Notices for You will be sent to the address specified in the Ordering Document or such other address You may specify in writing.  Notwithstanding the foregoing, Arcules may amend, update, modify, or otherwise change this Agreement pursuant to paragraph “C” at the beginning of this Agreement.