Last Updated: 6/5/2023
1. Terms of Service
Arx’s Terms of Service is incorporated into this Subscription Agreement by reference herein.
2. Payment and Taxes
2.1 Payment. Customer shall pay all invoices within thirty (30) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by Arx. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 ½ %) per month on the unpaid balance or the maximum rate allowed by law,whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. Arx may invoice for purchases of SaaS Products upon delivery.
2.2 Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. Arx shall include the Indirect Taxes on its invoice to Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law. For the avoidance of doubt, Arx will be responsible for direct taxes imposed on Arx’s net income or gross receipts in its tax jurisdiction.
3. Intellectual Property
Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and Arx Intellectual Property are hereby reserved by Arx, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.
4.1 Confidential Information. The Parties acknowledge that either Party (“Disclosing Party”) may disclose certain valuable confidential and proprietary information to the other(“Recipient”). “Confidential Information” means all information provided by the Disclosing Party to the Recipient Party concerning the Disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets,prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked“Confidential” or contains such similar legend by the Disclosing Party at the time of disclosure.
4.2 Exceptions. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient's or its Representatives' breach of this Agreement; (b) is obtained by Recipient or its Representatives on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Recipient establishes by documentary evidence, was in Recipient's or its Representatives' possession prior to Disclosing Party's disclosure hereunder; or (d) Recipient establishes by documentary evidence, was or is independently developed by Recipient or its Representatives without using any Confidential Information.
4.3 Uses. The Recipient may only use the disclosing Party’s Confidential Information to fulfill the purposes of these Terms. The Recipient will protect the Disclosing Party’s Confidential Information by using at least the same degree of care as the Recipient uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information to its (and its Affiliates) employees,advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein.
4.4 Advertising. Subject to the terms and conditions of this Agreement, Customer hereby grants to Arx a non-exclusive, royalty-free, non-transferable license to use Licensee’s trademarks, logos, service marks, and trade names in Arx’s advertising, marketing, promotional materials, and case studies, including identification on Arx’s website and press releases.
5.1 Infringement Indemnity. Arx shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the SaaS Products in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
5.2 Customer Indemnity. Customer shall defend and indemnify Arx and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings (including those brought by a government entity) resulting from any breach of this agreement by Customer, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
5.3 Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
5.4 Exclusion. The above Arx obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the SaaS Products not in accordance with applicable Documentation and this Agreement; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification,alteration or conversion of the SaaS Products not created or approved in writing by Arx; (d) any combination or use of the SaaS Products with any computer, hardware, software, data or service not required by the Documentation; (e) Arx’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
5.5 Remedies. If the SaaS Products becomes, or Arx reasonably determines that the SaaS Products is likely to become, subject to a claim of infringement for which Arx must indemnify Customer as described above, Arx may at its option and expense:(a) procure for Customer the right to continue to access and use the SaaS Products, (b) replace or modify the SaaS Products so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SaaS Products, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms,terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Product. This section states the sole liability of Arx and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
6. Limitation of Liability
6.1 Maximum Liability. EXCEPT FOR LIABILITY CAUSED BY ARX’S INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION OBLIGATIONS IN SECTION 5.1, CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 5.2, AND CUSTOMER’S PAYMENT OBLIGATIONS HEREIN, THE TOTAL LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO ARX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF INITIAL CLAIM.
6.2 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR THEIR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THESE TERMS AND/OR WHETHER DIRECT OR INDIRECT: (I) LOSS OF DATA; (II) LOSS OF INCOME, (III) LOSS OF OPPORTUNITY; (IV) LOST PROFITS; AND(V) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT,NEGLIGENCE, VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
8. Term and Termination
8.1 Term. This Agreement shall remain in force during the applicable Subscription Term of the SaaS Products unless or until terminated by either Party pursuant to this section.
8.2 Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, in whole or in part, or cease provision of the SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. Arx reserves the right to suspend Customer’s access to the applicable SaaS Products upon 30 days’ written notice to Customer if: (i) an invoice is more than sixty (60) days past due; or (ii) if there is an uncured material breach of this Agreement. Arx will promptly reinstate Customer’s access and use of the SaaS Products once the issue has been resolved. Any accrued rights and obligations will survive termination.
8.3 Effects of Termination / Expiration. Upon termination or expiration of an applicable Subscription Term: (i) Customer will have no further right to access or use the SaaS Products; and (ii) each Party shall within thirty (30) days after written request return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products. Following termination of the SaaS Products, Arx may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination.
9. Independent Contractors
Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Arx and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c)one (1) day after deposit with a nationally recognized overnight delivery or express courier service. Notices for Arx should be sent to the following address: 1765 Biarritz Dr Miami Beach, FL 33141, Attention: Hernan Garcia.