This SaaS Agreement (the “Agreement”) is a binding agreement governing your access to and use of the software-as-a-service described at www.arcade.software (the “Service”) operated by Arcade Software (“Arcade”). The Agreement is effective upon your acceptance of these terms when you register for an account to use the Service, purchase a Subscription, enter into an order form or other ordering document incorporating this Agreement by reference. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements.
1. The Arcade Service.
1.1. Subscriptions. Customer may purchase a subscription to access and use the Service, subject to this Agreement within the interface of www.arcade.software, or by entering into an order form or similar ordering document referencing this Agreement (a “Subscription”).
1.2. Access to the Service. During the term of a Subscription and subject to Customer’s compliance with the terms of this Agreement, Arcade shall provide Customer with non-exclusive access to the Service and grants Customer the right to access and use the Service solely for its own business purposes.
1.3. Users. Customer may allow its employees and its third party advisors, investors or service providers of the Company to access Customer’s account on the service (each, a “User”). Each User shall have unique log-in credentials and Customer will ensure that Users maintain the confidentiality of their log-in credentials. Customer will be responsible for the acts and omissions of each User with respect to the Service.
2. Billing and Payments.
2.1. Pricing Structure. The pricing model for the Service is based on a monthly fee per User (the “Fee”) as described in your Subscription. Unless otherwise agreed in writing, Fees charged annually in advance via credit card. User expansion occurring during the contract will be charged at the end of the month new users are added and will be prorated to be coterminous with the end date of the contract. All Fees are non-refundable.
2.2. Modifying Your Subscription. Any changes to your Subscription shall be evidenced by a written agreement signed by Arcade and Customer. There are no refunds or credits for plan downgrades or modifications during the Subscription.
2.3. Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
2.4. Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Arcade such that the net amount payable to Arcade after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
2.5. Billing Disputes. Customer agrees that it shall notify Arcade within 60 days of receipt of an invoice from Arcade if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted.
3. Intellectual Property
3.1. Rights in the Service. Arcade shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein.
3.2. Feedback. During the Subscription Term, Customer hereby grants Arcade a non exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, or service improvements given by Customer pertaining to the Service.
3.3. Restrictions. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Arcade’s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Arcade.
4. Customer Content.
4.1. Ownership. All data, information, files or other materials and content that Customer or its Users make available to Arcade for the purpose of utilizing the Service (“Customer Content”) shall remain the sole property of Customer.
4.2. License to Arcade. Customer hereby grants Arcade a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, (i) to the extent required to perform the Service, and (ii) to the extent such Customer Content has been aggregated and anonymized such that no identification of Customer or any User is possible, for any business purpose.
5. Confidentiality.
5.1. Nondisclosure. Each party (each, a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement.
5.2. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
5.3. Data Privacy. Except as described in this Agreement and in Arcade’s Privacy Policy, available arcade.software/privacy (the “Privacy Policy”), or as otherwise required by applicable law, Arcade will not disclose Customer’s Confidential Information to any third party.
6. Representations and Warranties.
6.1. Warranties.
6.1.1. Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6.1.2. Customer additionally represents and warrants that (a) the Customer Content does not infringe upon any third party's proprietary rights, including intellectual property rights (b) Customer will use the Service in compliance with all applicable laws and regulations.
6.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, Arcade PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Arcade DOES NOT WARRANT THAT (I) THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
7. Indemnification.
7.1. Customer's Indemnities. Customer shall defend, indemnify and hold harmless Arcade and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; or (b) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules or regulations.
7.2. Arcade's Indemnities. Arcade shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party.
8. Limitation of Liability.
8.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL Arcade BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT Arcade HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR Arcade’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.2, OR DAMAGES ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF CONFIDENTIALITY UNDER SECTION 5, Arcade’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO Arcade DURING THE TWELVE MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
9. Term; Termination.
9.1. Term. This Agreement shall commence on the date a Subscription is first entered into and shall remain in effect for so long as there is a valid Subscription in effect or until terminated as provided herein (the “Term”).
9.2. Term. Either party may terminate this Agreement (i) for the other party’s material breach, if the breaching party does not cure such breach within 10 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 10 day period, or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
9.3. Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service and this Agreement shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (Arcade Intellectual Property Rights & Restrictions), (iii) Section 4 (Customer Content),(iv) Section 5 (Confidentiality); (v) Section 6.2 (Disclaimer of Warranties); (vi) Section 7 (Indemnification); (vii) Section 8 (Limitation of Liability); and (viii) Section 10 (Miscellaneous). Upon any termination for breach caused by Arcade, Arcade will refund Customer any prepaid Fees covering the remainder of the term of all Subscriptions after the effective date of termination.
10. Miscellaneous.
10.1. Amendments. These terms may be amended by Arcade from time to time in its sole discretion. In the event of such an amendment, Arcade will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object, the terms in effect immediately prior to such amendment will remain in effect until the end of the then-current term of the Subscription, and the amended terms will go into effect upon renewal of the Subscription, if the agreement is renewed pursuant to the terms of the Subscription.
10.2. Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.3. Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
10.4. Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
10.6. Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
10.7. Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.8. Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
10.9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
10.10. Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied.
