PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THIS SERVICE. BY SIGNING THIS AGREEMENT OR USING THE SERVICE, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS OF THIS AGREEMENT, WHICH WILL GOVERN YOUR USE OF THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE THE NECESSARY AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICE.

 

This SAAS (Software as a Service) Agreement (the Agreement) is between Arcudigm, a Maine limited liability company (Company) and the purchaser or user of the Services who accepts the terms of this Agreement (You or Your). The effective date of this Agreement (the Effective Date) is the earlier date that You accept this Agreement by signing or the date that You first use the Services and may be amended only as set forth herein.

 

This Software as a Service (SaaS) Agreement (the “Agreement”) is entered into between Arcudigm, a Maine limited liability company (“Company”), and the purchaser or user of the Service (“You” or “Your”). The effective date of this Agreement (the “Effective Date”) is the earlier of: (i) the date You accept this Agreement by signing it; or (ii) the date You first access or use the Service. This Agreement may only be amended as expressly provided herein.

 

1. DEFINITIONS

Documentation means Company’s user manuals or other documentation regarding the Services, accessible via the Services, as may be updated by Company from time to time.

Intellectual Property Rights means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

Order Form means the ordering document(s) for Your use of the Services under a purchased subscription to the Services, each of which is electronically delivered by You and accepted by Company from time to time. Order Forms shall be deemed incorporated herein by reference.

Paid Subscription License means a paid subscription to the Services that You purchase under an Order Form.

Paid Subscription License Term means the subscription period for the Paid Subscription License as specified in an Order Form.

Services means the Company’s hosted software and/or services that are described on and ordered by You under an Order Form.

Support Services means technical support services provided by the Company for the Services ordered by You under an Order Form.

Support Term means the subscription period for Support Services specified on an Order Form for which you have paid the applicable Support Services Fees.

Users means Your employees or contractors authorized by You to access the Services for Your benefit.

Your Data means any of Your information or data that You upload, directly or indirectly, into the Services.

 

2. LICENSE AND RESTRICTIONS

2.1 License. Subject to all of the terms and conditions of this Agreement (including, without limitation, Your payment of the applicable Fees), during the Paid Subscription License Term, Company hereby grants You a nonexclusive, nontransferable, non-sublicensable, revocable and limited license to: (a) access and use the Services solely for purposes of collecting, storing, and analyzing archaeological data.

2.2 Users. All Users must be under Your direction and control and use the Services only for Your benefit and you shall be responsible for any breach of this Agreement by any User.

2.3 Restrictions. You acknowledge that the Services constitute valuable property and trade secrets of Company and You agree not to do or allow any of the following, and that no User shall do or allow any of the following: (a) make the Services available to any third party other than You and Your designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of any part of the Services; (c) decompile, reverse engineer or reverse assemble any portion of the Services, or attempt to discover any source code or underlying ideas or algorithms of the Services; (d) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the Services to store or transmit material in violation of third party privacy rights; (g) transmit unsolicited commercial or non-commercial email via the Services; (f) use the Services to store or transmit malicious code; (g) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (h) attempt to gain unauthorized access to the Services or related systems or networks; (i) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Services; or (j) upload into the Services any data or software in violation of any Intellectual Property Rights of any third party. In addition, the Services shall not be used by You or any User for any unlawful purpose. Documentation associated with the Services may include additional restrictions or limitations on the use of the Services, including, without limitation, limitations on storage space in the Services, and You and each other User agree to comply with any such restrictions or limitations. The Company has the right, but not the obligation, to monitor Your use of the Services to determine compliance with the terms of this Agreement. Company reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend Your access (and therefore, all Users’ access) to and use of the Services and/or immediately terminate this Agreement if Company determines, in its sole discretion, that You are engaging (or have engaged) in any of the prohibited activities set forth in this Section 2.3.

 

3. FEES AND PAYMENTS

3.1 Subscription Fees. During the Paid Subscription License Term, You will be charged the fees as specified in an applicable Order Form (Subscription Fees). Subscription Fees are based on Paid Subscription Licenses purchased and not actual usage. All of Your payment obligations hereunder are non-cancelable, and Fees paid are non-refundable.

3.2 Fees. All fees set forth on an Order Form that apply to the Services (including but not limited to Support Services fees and Subscription Fees) shall be paid by You as set forth in this Section 3 (collectively, the Fees).

3.3 Fee Changes. The Company, in its discretion, reserves the right to change Fees for Services at any time. You acknowledge that the Company may, from time to time, add additional features or functionality to the Services, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees. Any Fee changes shall only be applied in Your next Subscription Term provided You continue to subscribe to the Services; You shall pay your current Fees until the new Fees take effect in Your next Subscription Term.

3.4 Payments. You will pay Fees via credit card or by other means specified by Company in an applicable Order Form. If You are making payments for Fees via credit card, You will provide accurate payment information, and You hereby authorize Company to charge such credit card for all Fees in an applicable Order Form for the initial Paid Subscription License Term and any renewal thereof. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. For payment of Fees by any other method, Company will invoice You in advance of the provision of applicable Services and otherwise in accordance with the relevant Order Form. All payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. If Company has not received payment of Fees by the applicable due date on an invoice, then Company may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) condition future Services and Order Forms on payment terms shorter than those specified herein. If You have elected to pay Fees via credit card and the credit card is charged back to Company or if any Fees invoiced to You are not paid within thirty (30) days of invoice, Company may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your Services until payment is made; and/or (iv) immediately terminate the applicable Order Form for which Fees were due and/or terminate this Agreement.

3.5 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). You are responsible for paying all Taxes (except those based on Company’s income) associated with the Services purchased hereunder, and will pay, indemnify and hold Company harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest.

 

4. OWNERSHIP

4.1 Feedback. In consideration of Your access to and use of the Services, (i) You agree to notify Company of any problems, bugs, usability or performance or other issues You discover with respect to the Services; and (ii) You may share with the Company suggestions, improvements, ideas for enhancements or other feedback regarding the Services ((i) and (ii) are referred to herein collectively as Feedback). All such Feedback shall be owned exclusively by the Company and You hereby assign to Company all right, title and interest in and to such Feedback and all Intellectual Property Rights therein.

4.2 Company’s Proprietary Rights. As between You and Company, Company owns: (i) all right, title and interest in and to the Services, all Company software and systems accessed through the Services, and all documentation, usernames, passwords, access codes and storage or other resources that may be assigned to You; (ii) all modifications, improvements and derivatives of any of the foregoing, and including without limitation any invention or discovery related to the Services that may be made as a consequence of Your using the Services; (iii) all Feedback described in Section 4.1 above; and (iv) any and all Intellectual Property Rights embodied in any of the foregoing, and You hereby assign all such rights therein to Company. You also acknowledge that the trademarks, logos, service marks, trade names, symbols, brand names and/or other proprietary indicia (collectively, Marks) displayed by the Company in connection with the Services are the property of the Company or other third parties. You are not permitted to use or remove these Marks without the prior written consent of Company or such third party which may own the Mark.

4.3 Your Data. As between You and Company, You shall own all of Your Data that you upload into the Services. You grant Company permission to access your account, login credentials, and Your Data strictly for the purposes of performing necessary Support Services or troubleshooting on your account.

4.4 Reservation of Rights. Company reserves all rights not expressly granted in this Agreement, and no licenses are granted by Company to You under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

5.Support Services. Company will provide to You the Support Services You have ordered on your Order Form (if any) during the Support Term paid for by You.

 

6. WARRANTIES

6.1 Company’s Disclaimer of Warranties. THE SERVICES ARE PROVIDED AS IS AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS OR THAT THE SERVICES ARE SECURE, AND YOU ACCEPT THE ENTIRE RISK ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

6.2. Your Warranties. You represent, warrant and covenant that: (a) You have the legal power to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You have the right and authority and have obtained all necessary consents required to use Your Data in connection with the Services; (c) use of Your Data in connection with Your use of the Services shall not infringe the Intellectual Property Rights of any third party; and (d) You will comply with all applicable laws and regulations in Your performance of this Agreement.

 

7. INDEMNITY

7.1 Indemnity Claims. You will defend, indemnify and hold Company and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) (collectively, Claims) arising out of or relating to: (a) Your or Your Users’ breach of this Agreement; (b) Your or Your Users’ negligence or willful misconduct; and/or (c) Your Data.

7.2 Procedure. With respect to Your indemnity obligations arising pursuant to Section 7.1, Company shall promptly notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were materially prejudiced by the delay. Company shall reasonably cooperate with You in the defense of such Claim at Your expense. Company may participate in the defense at its option and expense; provided that You shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of Company, including any settlement that includes (i) admission of liability or wrongdoing by Company, (ii) payment of any amounts not covered by Your indemnity obligations, or (iii) actions that affect Company’s Intellectual Property Rights, may be made without the express written consent of Company, which may be withheld in the sole discretion of Company; and provided further that in conducting such defense or settling such claim or action, You shall not disclose or use the confidential information of Company without Company’s prior written consent.

 

8. LIMITATIONS OF LIABILITY

8.1 Exclusion of Indirect Damages. IN NO EVENT WILL COMPANY BE LIABLE TO YOU, YOUR USERS OR ANY OTHER THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.2 Limitation of Liability. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN THE AGGREGATE THE GREATER OF $100.00 OR THE AMOUNTS ACTUALLY PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING LIMITATION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.3. Time Limit on Claims. REGARDLESS OF ANY STATUTE OR LAW THAT CONTAINS A LONGER STATUTE OF LIMITATIONS, ANY CLAIM OR CAUSE OF ACTION AGAINST COMPANY ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR BE FOREVER BARRED.

 

9. TERM AND TERMINATION

9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated, continues for the duration set forth in the applicable Order Form (Subscription Term). Except as otherwise specified in the applicable Order Form, and provided You timely pay any Fees due to renew the Services (as set forth in the Order Form or in Company’s notice of renewal to you), each Subscription Term shall automatically renew for additional periods equal in duration to the then-expiring Subscription Term, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the expiring Subscription Term for annual subscriptions, and 14 days for monthly subscriptions.

9.2 Termination. Either party may terminate this Agreement or any individual Order Form as follows: (a) for cause if the other party breaches this Agreement or an Order Form and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to control of a trustee, receiver or similar authority; or (c) in the case of Company, immediately if You do not pay the Fees when due as described in Section 3 or for any other material breach by You of this Agreement.

9.3 Transition of Your Data. For a period of thirty (30) days following termination or expiration of this Agreement, You may request that Company transfer Your Data to You. Company will transfer Your Data in a form and medium determined by Company in its sole discretion, at Company’s then-current fee for data transfer services. If after such 30-day period you have not requested that Company transfer Your Data from the Service, then unless prohibited by applicable law, Company may delete or erase any or all of Your Data stored by You or maintained by Company in connection with the Services. Except as provided in this Section 9.3, Company shall have no obligation to continue to store any of Your Data following termination of this Agreement, provided that Company shall be entitled to retain copies of Your Data for archival purposes.

9.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Services shall cease, and Company shall have no further obligation to make the Services available to You; (b) all rights and licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 9.3, Company will have no obligation with respect to any of Your Data; and (d) You will pay any unpaid Fees payable for the remainder of the Paid Subscription License Term under any applicable Order Form in effect prior to the termination date.

9.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Restrictions), 3 (Fees and Payment), 4.2 (Ownership), 6.1 (Company’s Disclaimer of Warranties), 7 (Indemnity), 8 (Limitations of Liability), 9.3 (Transition of Your Data), 9.4 (Effect of Termination), 9.5 (Survival) and 10 (Miscellaneous).

 

10. MISCELLANEOUS

10.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) You shall not permit access to or use of the Services in violation of any U.S. export embargo, prohibition or restriction. If You access the Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of Your jurisdiction.

10.2 Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Maine, without regard to its conflict of laws provisions. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts in Cumberland County, Maine for the resolution of any disputes or conflicts arising out of or related to this Agreement.

10.3 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by email or facsimile; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:

Notices to You: to the address or email contact information set forth within Your account.

Notices to Company: (MAIL ADDRESS) (EMAIL)

10.4 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.

10.5 Publicity. Company may reference You and Your use of the Services in its marketing materials and on its Website, including but not limited to: (i) the right to display Your logo; (ii) producing case studies and customer reference videos; (iii) arranging media interviews and speaking opportunities at industry events; (iv) customer lists; and (v) other normal promotional activities.

10.6 Assignment; Binding Effect. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You by operation of law or otherwise, without the prior written consent of Company. This Agreement may be freely assigned or transferred by Company without Your consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

10.7 Waiver; Severability. Failure of Company to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular claim involved, nor shall any course of conduct between Company and You or any other party be deemed to modify any provision of this Agreement. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

10.8 Entire Agreement; Headings. This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other prior or contemporaneous agreements between them, whether oral or written. All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation. All remedies set forth in this Agreement are cumulative.