LAST
UPDATED: October 1, 2020
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.
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 (“You” or “Your”) to use the Arcules
cloud-based video management and access control solution (“Solution”). By accessing or
using the Solution, You agree to the terms and
conditions of 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 are also referred to herein individually as
a “Party” and collectively as the “Parties.”
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.
1.0
SUBSCRIPTION TERMS.
1.1
Solution.
The Solution is comprised of Your subscription as described in Your
Ordering Document (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 (“IP”) rights related thereto. For 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. 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 subscription term; 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. 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 include a license agreement that must be
accepted by You before use. For
avoidance of doubt, the terms of this Agreement and the License govern and
control your use of the Solution (including the Apps), and the downloaded
license agreement associated with the Apps will be preempted by this
Agreement.
(b)
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, other information and
materials originating in the Solution, and any translations, improvements,
corrections, adaptations, derivatives, enhancements, changes, additions,
revisions and other modifications (“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.
(c) Ordering Document. The “Ordering
Document” is an agreement or other ordering document signed between You and
Your Integrator (defined below), 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,
restrictions and 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.
(d) 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 security
hardware, installation, maintenance, infrastructure and/or support) to assist
in ordering, selecting, managing, installing and setting up Your hardware and
network and providing support and maintenance if You have any issues. Arcules is not
responsible for ordering, selecting, setting up or managing Your cameras or
network infrastructure, and You are 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.
(e) Updates. As the Solution is hosted in the cloud, Arcules can provide automatic updates without any effort
from You. Updates of the Apps and
Gateways on Your devices may be required for continued use of the
Solution. If You do not update the Apps
and Gateways, Arcules does not guarantee continued
support for the outdated versions of the Apps and Gateways, and Your access and
use of the Solution with those outdated Apps and Gateways may be affected.
1.2
Your
Content. “Your
Content” is all of Your data (including third-party data) in the Solution,
which includes video data, 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 transferrable
license to Your Content to operate and maintain the Solution for Your
benefit. We agree to keep Your Content
secure (as described in Sections 3.0 and 7.2 hereof).
(a)
Video Data. Notwithstanding the
license grant in Section 1.2 hereof, Arcules will not
access, view, or use Your video data without specific authorization from
You. On a case-by-case basis, You may permit Us to use specified video data or camera
feeds to enhance machine-learning analytics capabilities, or to develop custom
notifications or triggers for Your use in the Solution. Arcules will not
share Your video data with any third-party, except as necessary to provide the
Solution, or if We are legally compelled to do so by any governmental
investigative or judicial agency pursuant to proceedings over which such agency
has jurisdiction. Arcules
will not use video data for marketing or advertising. In the absence of permission to use Your
video data, We will not access or use it unless
requested to do so by You for support or other Solution related purposes.
(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, and to verify
compliance with this Agreement and terms of the subscription described in the
Ordering Document.
(c)
Feedback. While You use the Solution, You may
give us feedback, requirements and other recommendations (“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 any Feedback in any manner We
deem appropriate.
1.3
SLA.
Arcules shall provide the Solution
substantially in accordance with the Service Level Agreement located here 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; (b) let any of Your employees 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 (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 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 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 to access or use Your account; 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 avoidance of doubt, Arcules
will not be responsible or liable for any costs, damages, fees, losses, or
other liability 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; (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 use or placement of video
cameras, transference of video and analytics data to Arcules’
cloud environment, and the processing of personal information (which may
include any video and analytics data deemed to contain personal information);
(d) You will only use the Solution for Your own internal business purposes; (e)
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; (f) 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; (g) 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; and (h) You have the right to
grant Arcules the license to use Your Content; and (i) You 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 limit or 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 describes terms of Your
subscription, including 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, and other
subscription-specific information, all of which determines the price for the
subscription. If You exceed any of the
limits described in the Ordering Document, or change
settings in such a way that would increase Arcules’
costs of providing the Solution, then Your Integrator or Arcules
will contact You to adjust Your subscription terms or otherwise address the
matter. If We are unable to agree on
adjusted terms, Arcules may 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 hardware is provided to You to facilitate Your use of
the Solution, including without limitation, any gateway necessary to utilize
the Solution (collectively, “Gateway”),
Integrator will provide support and maintenance for the Gateway for the duration
of the subscription term (or in the case where You do not have an Integrator, Arcules will provide such support and maintenance).
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 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”) 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 no 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 in order to
perform its duties under this Agreement and 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) or that should reasonably be understood to be confidential
given the nature of the information and circumstances of its disclosure; and
(b) any orally disclosed information that is reasonably understood to be
confidential or proprietary. Your
Confidential Information includes without limitation, Your Content and Access
Information. Arcules
Confidential Information includes without limitation, the Solution, Arcules software in the Gateways, 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 that 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
Confidential Information (or Your Content, in the case of Arcules’
compelled disclosure by a governmental entity), reasonable prior notice will be
given 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,
under written terms of confidentiality.
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 or other reseller involved), within thirty (30) days after the
subscription term begins. You may have
other payment terms negotiated with the Integrator, in
which case those terms override this Section 3.1. Payments will be made via the method
designated in the Ordering Document. All
payments are non-refundable. If You are
delinquent in the payment of any invoice, 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.
3.2
Taxes.
You will be responsible for the payment of all taxes which may be levied
or assessed in connection with 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.
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. WE DO
NOT WARRANT THAT THE SOLUTION, GATEWAY, SUPPORT, SERVICE LEVELS OR ARCULES
CONFIDENTIAL INFORMATION WILL PERFORM WITHOUT ERROR OR INTERRUPTION OR WILL BE
SECURE. 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 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 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 THE YOUR INTENDED PURPOSE.
4.2
Limitation of Liability. THIS
SECTION 4.2 LIMITS THE LIABILITY OF BOTH PARTIES.
(a) Indirect
Damages. OTHER THAN FOR END USER’S VIOLATION OF SECTION 1.4 (UNAUTHORIZED
USE), TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, NEITHER PARTY 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 LAW, EACH PARTY’S LIABILITY FOR
DIRECT DAMAGES RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES
ACTUALLY INCURRED UP TO THE AMOUNT OF FEES 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: YOUR PAYMENT
OBLIGATIONS, A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS DESCRIBED IN THIS
AGREEMENT, DAMAGES CAUSED BY EITHER PARTY’S WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE, OR TO AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION
OBLIGATION. 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 that 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 (at Arcules’
expense); 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, enable You to continue to use the affected Solution, modify it to make
it non-infringing, replace all or portions of the Solution with a substantially
functional, non-infringing equivalent, or terminate this Agreement in whole or
with respect to the affected Solution and provide You with a pro-rata refund of
fees paid based on the effective date of termination, if any (the refund may be
through Your Integrator).
(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 the
latest unmodified release; (iv) Your continuance of allegedly infringing
activity after being notified about the infringement claim, or after being
notified of Modifications (to be made at no cost) that would have avoided the
alleged infringement.
(c) By You. If a claim by a third-party is brought
against Arcules or its affiliates, and its or Arcules’ 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),
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 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 (at Your expense); 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,
this Agreement will remain in effect for so long as You are subscribed to the
Solution. Except as may be described in
the applicable Ordering Document, all subscriptions will automatically renew
for additional periods equal to the expiring subscription term, unless either
Party (or the Integrator, if applicable) gives the other Party (or the
Integrator, if applicable), timely written notice of non-renewal before the end
of Your current subscription term. For
avoidance of doubt, notice must be received by Arcules
(not the Integrator) to be an effective termination notice.
5.2
Termination.
If either Party breaches a material term of this Agreement, the
subscription will be terminable for cause.
In such an event, the non-breaching Party will give written notice of
the breach to the other 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 the subscription, and Arcules will be
under no obligation to store, maintain, or 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; and (c) pay any outstanding fees owed to the
Integrator or Arcules and all remaining fees
applicable to the remaining term of the subscription. Termination will not relieve You of the
obligation to pay fees payable for the period prior to 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(b)
(Ownership), 1.2(c) (Feedback), 1.4 (Unauthorized Use), 1.5 (Access Information
and Other Users), 1.7 (Your Responsibilities), 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) and 7.0 (General
Provisions), shall survive any expiration or termination of this
Agreement.
6.0
ARCULES RESPONSIBILITIES.
6.1
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 2.4
hereof; or (c) as You expressly permit in writing (email sufficient). To the extent that Arcules
processes any Personal Data (as defined in the General Data Protection Regulation
(EU 2016/679)) contained in Your Content, Arcules
will process the Personal Data in compliance with Your configurations (and You
acknowledge and agree Your configurations may configure the Personal Data to
not be compliant with applicable law and regulation).
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 omission of Your
employees, personnel and users, and their compliance with Your obligations
described in this Agreement.
6.4
No-Charge
Offerings. Arcules may offer
certain Arcules 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 constitute Arcules’ Confidential Information. For 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 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
hereof. 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 by a data protection or privacy law, such as
GDPR). 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) and the SLA, both 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 or 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.
7.8
Notices.
Except for the email or electronic delivery of operational
communications regarding Your use of the Solution, 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.