1. Access and Use
1.1 Access and Use. Subject to payment of all applicable fees set forth in Schedule A of the Subscription Agreement and the terms and conditions of this Agreement, Arx grants Customer, during the Subscription Term, a non-exclusive, non-sublicensable, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation. Customer will operate the SaaS products in accordance with the Documentation and be responsible for the acts and omissions of its Authorized Users.
1.2 Restrictions. Customer shall not (directly or indirectly): (a) except to the limited extent applicable laws specifically prohibit such restriction, modify, reverse engineer, decompile, attempt to derive the source code or underlying ideas or algorithms for any part of the SaaS Products; (b) attempt to recreate the SaaS Products, or use the SaaS Products for any competitive purpose; (c) create,translate, or otherwise prepare derivative works based on the SaaS Products or any accompanying Documentation; (d) conduct automated queries (including screen and database scraping, crawlers, spiders, robots, scrapers, or any other any other automated activity in order to obtain information) on the SaaS Products;(e) interfere with or disrupt the integrity or performance of the SaaS Products; (f) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; or (g) use the SaaS Products to infringe on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data.
1.3 Login Access. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in proper use of the SaaS Products, and (iii) proper usage of passwords and access procedures with respect to logging into the SaaS Products. Arx reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Arx will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, Arx may suspend Customer’s access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and Arx reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. Arx will provide notice prior to such suspension if permitted by applicable law or unless Arx reasonably believes that providing such notice poses a risk to the security of the SaaS Products. Arx will promptly reinstate Customer’s access and use once the issue has been resolved.
1.4 Trial Services. If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge basis including any related support services to the extent provided by Arx in its sole discretion (collectively, “Trial Services”), Arx makes such Trial Services available to Customer until the earlier of: (i)the end of the free trial or proof of concept period or beta testing period as communicated by Arx; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from Arx (“Trial Services Period”). Arx grants Customer, during the Trial Services Period, anon-exclusive, non-transferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with any Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by Arx in writing. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of the SaaS Products, and Customer should review the SaaS Products features and functions before making a purchase. Arx will be under no obligation to provide Customer any maintenance or support services with respect to the Trial Services. Notwithstanding anything to the contrary, Arx provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Arx disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer’s sole and exclusive remedy in case of any dissatisfaction or Arx’s breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of Arx to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, ARX PROVIDES THE SAAS PRODUCTS“AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, ARX DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ARX DISCLAIMS ANY WARRANTY THAT THE SAAS PRODUCTS WILL BE FREE FROM ERROR, THAT THE DATA AND PROJECTIONS CONTAINED THEREIN WILL BE ACCURATE, THAT ERRORS WILL BE CORRECTED, OR THAT ACCESS TO THE SAAS PRODUCTS WILL BE UNINTERRUPTED. CUSTOMER ASSUMES ALL RISKS AND ALL COSTS ASSOCIATED WITH ITS USE OF THE SAAS PRODUCTS.
5. Restricted Rights and Export Control
5.1 Export Control. The exportation of the SaaS Products and Documentation, and all related technology and information thereof are subject to U.S. laws and regulations pertaining to export controls and trade and economic sanctions, including the U.S. Export Administration Act, Export Administration Regulations, the Export Control Reform Act, and the Office of Foreign Assets Control’s sanctions programs, and the laws of any country or organization of nations within whose jurisdiction Customer (or its Authorized Users who may use or otherwise receive the SaaS Products as expressly authorized by this Agreement) operates or does business, as amended, and the rules and regulations promulgated from time to time thereunder. Specifically,Customer hereby undertakes not to export, re-export, access or grant access to the SaaS Products and all related technology, information, materials and any upgrades thereto to: (a) any Prohibited Persons; (b) any country to which such export, re-export or access from is restricted or prohibited per the foregoing applicable laws; or (c) otherwise in violation of any applicable export or import restrictions, laws or regulations. Customer also certifies that it is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person.
5.2 Commercial Computer Software. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that: (i) the SaaS Products (including any software forming a part thereof) were developed entirely at private expense; (ii) the SaaS Products (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Arx; (iii) the SaaS Products (including any software forming a part thereof) are not in the public domain; and (iv) the software forming a part of the SaaS Products is “Commercial Computer Software” as defined in sub-paragraph(a)(1) of DFAR section 252.227-7014 or FAR Part 12.212. Customer shall provide no rights in the Software (including any software forming a part thereof) to any U.S. Government agency or any other party except as expressly provided in this Agreement.
6.1 Force Majeure. With the exception of Customer’s payment obligations in the Subscription Agreement, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus,epidemic, travel advisories as to health, security and/or terrorism, flood,lockout, transportation delay, war, acts of God, governmental rule or order,strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
6.2 Applicable Law and Jurisdiction. These Terms of Service shall be interpreted and construed in accordance with the laws of the State of Washington. Any and all claims, controversies and causes of action arising out of or relating to these Terms of Service, whether sounding in contract, tort or statute, shall be governed by the laws of the State of Washington, including its statutes of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the laws of a different jurisdiction. Any action arising out of this agreement shall be brought exclusively in a court of competent jurisdiction located in King County, Washington. To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
6.4 Definitions. The following definitions apply in this agreement.
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).The following definitions apply in this agreement.
“Agreement” means these Terms of Service.
“Authorized Users”means employees, agents, consultants, contractors, or vendors authorized by Customer to use the SaaS Products solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“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.
“Customer” means the company of the legal entity that will be utilizing the SaaS Products.
“Documentation” means the user guides, access documents, security fundamentals documentation, and specifications for the SaaS Products that may be made available from time to time by Arx in electronic or tangible form, but excluding any sales or marketing materials.
“Indirect Taxes”means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal or state).
“Intellectual Property”means a Party’s proprietary material, technology, or processes, (excluding the SaaS Products and Documentation) including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world(whether owned or licensed by a third party) and any derivatives, improvements,enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
“Notice” means any notice or other communication required or permitted under this Agreement.
“Order” means Arx’s quote accepted by Customer via Customer’s purchase order or other ordering document submitted to Arx to order Arx’s SaaS Products, which references the SaaS Products, pricing, payment terms, quantities and other applicable terms set forth in an applicable Arx quote or ordering document.
“Prohibited Persons” means anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list.
“SaaS Products” means the software-as-a-service products specified in the Order as furtherdescribed in the Documentation (including any updates and upgrades to the SaaS Products provided by Arx in its sole discretion).
“Subscription Term”means the period of time during which Customer is subscribed to the SaaS Products, as specified in an Order and which shall begin upon delivery of the SaaS Products.
“Suggestions”means, any ideas or suggestions for improvements, new features,functionalities, corrections, enhancements or changes to the SaaS Products suggested by Customer to Arx, which constitute Intellectual Property rights under applicable law.
“Usage Data” means data generated in connection with Customer’s access, use and configuration of the SaaS Products and data derived from it (e.g., types of applications or accounts utilized or interacting with the SaaS Products).