This Terms of Service Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of this Web Site and our Service Offerings (as defined below) and is an agreement between ArpatechOps Systems, Inc. (“ArpatechOps,” “we,” “us,” or “our”) and you. This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). You represent to us that you (a) have read, understand, and agree to be bound by this Agreement; (b) are lawfully able to enter into contracts (e.g., you are not a minor). If you are using the Service Offerings on behalf of an entity, you are agreeing to this Agreement for that entity and representing to ArpatechOps that you have the authority to bind that entity to this Agreement (in which case “you” and “User” will refer to that entity, and, together with other users of the Web Site, “Users”), unless that entity has a separate contract in effect with us, in which event the terms of that contract will govern use by the entity. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICE OFFERINGS.
Your use of, and participation in, certain services offered by ArpatechOps may be subject to additional terms (“Supplemental Terms”), and such Supplemental Terms will either be listed in the Agreement or will be presented to you for your acceptance when you sign up to use the supplemental service. If the Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such service. This Agreement and any applicable Supplement Terms are referred to herein as the “Agreement.”
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY ARPATECHOPS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, ArpatechOps will make a new copy of this Agreement available at its Web Site. We will also update the “Last Updated” date at the top of this Agreement. If we make any material changes, and you have created an account with us, we will also either send an e-mail to you at the last e-mail address you provided pursuant to this Agreement or post the updated Agreement on the UI (defined below). Any changes to the Agreement will be effective immediately for new users of the Web Site and/or Service Offerings and will be effective thirty (30) days after posting notice of such changes on the Web Site for existing Users, provided that any material changes shall be effective for Users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes on the Web Site or thirty (30) days after dispatch of an e-mail notice of such changes to such Users. ArpatechOps may require you to provide consent to the updated Agreement in a specified manner before use of the Web Site or the Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Web Site and the Service Offerings. Otherwise, your continued use of the Web Site and/or the Service Offerings constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEB SITE TO VIEW THE THEN-CURRENT AGREEMENT.
1. Service Offerings.
ArpatechOps provides (a) free hosting and website management Services for website developers (“Developers”), including organizations that build websites for third parties (“Agencies”) and educational organizations (“Educational Organizations”), (b) paid subscription-based hosting and website management subscription plans (e.g., Sandbox, Personal, Professional, or Business) for operators of live sites (“Subscribers”) (each, a “Subscription Plan”), and (c) ArpatechOps’s Elite Subscription Plan, its Enterprise Service Offering, its EDU+ Service Offering, and future Service Offerings that may be excluded from the resale provisions set forth in this Agreement (the “Excluded Service Offerings”). This Agreement sets forth the terms pursuant to which (a) Developers may access and use ArpatechOps’s free hosting and website management Services for the websites they develop (“Development Sites”); (b) Subscribers, including Agencies and Educational Organizations, may purchase Subscription Plans to access and use the above Service Offerings, and (c) Agencies that purchase Subscription Plans for the websites they develop may resell the Service Offerings provided by ArpatechOps pursuant to such Subscription Plans to their third party customers (each, a “Client”) (sites for which Subscription Plans have been purchased are referred to collectively as “Supported Sites”and Development Sites and Supported Sites are referred to collectively as “Sites”). Capitalized terms used in this Agreement shall have the meaning set forth in Section 14 or as otherwise defined within the Agreement.
2. Use of the Service Offerings
Subject to the terms and conditions of this Agreement, ArpatechOps will offer to provide the Service Offerings, as described more fully on the UI, which are selected by you. ArpatechOps retains the right to create limits on use and storage in its sole discretion at any time, with or without notice.
2.2 Changes to Service Offerings.
ArpatechOps may change, suspend or discontinue the Service Offerings at any time, including the availability of any feature, database, or UI. ArpatechOps may also impose limits on certain features and services or restrict your access to parts or all of the Service Offerings without notice or liability. ArpatechOps retains the right to create limits on use and storage in its sole discretion at any time with or without notice.
2.3 Access to Services.
ArpatechOps will use reasonable efforts to ensure that the UI and Services are available twenty-four hours a day, seven days a week and to respond to any support tickets which are submitted by you on the Web Site (“Support Tickets”). However, there will be occasions when the UI, the Services, and/or the Web Site will be interrupted for maintenance, upgrades and repairs or due to failure of telecommunications links and equipment. ArpatechOps will take reasonable steps to minimize such disruption where it is within ArpatechOps’s control. You agree that ArpatechOps will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the UI, the Services, User Content or Third Party Content, or for failure to respond to a Support Ticket as a result thereof. You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the UI or otherwise use the Services, including, without limitation, hardware, software, routers, wireless networking devices, firewalls, modems, broadband service, and long distance or local telephone service. You are responsible for ensuring that such equipment or ancillary services are compatible with the Service Offerings. ArpatechOps engineers will respond to resolve the issues twenty-four hours a day, seven days a week, 365 days a year.
2.4 User Registration;
Authorized Users. As a condition to using Services, you will be required to register with ArpatechOps and select a password. You agree to provide ArpatechOps with accurate, complete, and updated registration information, including your e-mail address. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. Each of your Sites will require a Site name (“Site Name”) to be created. The Site Name will be used to generate a ArpatechOps URL. User may not (a) select or use as a Site Name a name of another person or organization with the intent to impersonate that person or organization; or (b) use as a Site Name a name subject to any rights of a person other than User without appropriate authorization. ArpatechOps reserves the right to refuse registration of, or cancel a Site Name in its discretion. You are solely responsible for maintaining the confidentiality of your ArpatechOps password and any use of or action taken under your password. You accept full responsibility for all activity conducted through your account and you hereby release ArpatechOps from any and all liability concerning such activity. You agree to notify ArpatechOps immediately of any actual or suspected loss, theft, or unauthorized use of your account or password. You agree that you will not share your username and password with any other person.
2.4.1 Access by Authorized Users.
If you have (a) created a Development Site, (b) purchased a Subscription Plan for a Supported Site, either on behalf of yourself, or on behalf of an entity, you will be considered to be the owner of that Site (the “Site Owner”) and you have the option to provide ArpatechOps, through the UI, with the email addresses of members of the User team (the “User Team”) who are authorized to access the Site (each, a“Team Member User”). A User Team Member also has the option to provide ArpatechOps, through the UI, with the email addresses of members of the User Team who are authorized to access the Site. If a User Team Member will be provided with access to the Site. If the User Team Member has not yet registered with ArpatechOps, the User Team Member will be invited to register so that he or she may receive access to the Site. Every User Team Member with access to the Site will have the ability to provide ArpatechOps with the names of new members of the User Team. You and other User Team Members also have the option to provide ArpatechOps, through the UI, with the names of one or more third party entities that are authorized to access the Site (each a “Supporting Organization”). When added through the UI, the Supporting Organization will have Users that the Supporting Organization has defined who will have access to the Site (each a “Supporting Organization Team Member”), and you will not have access to the names of the Supporting Organization Team Members through the Service. The User Team Members and the Supporting Organization Team Members for a Site are referred to collectively as the “Authorized Users” of that Site.
2.4.2 Acknowledgement by Site Owner.
If you are the Site Owner, you acknowledge and agree that (i) only Authorized Users are entitled to access the Site with their assigned usernames and passwords provided by ArpatechOps; (ii) you are solely responsible for all activities of the Authorized Users of that Site; (iii) you will notify ArpatechOps promptly if you want to terminate an Authorized User’s access to the Site, or use the UI to terminate an Authorized User’s or a Supporting Organization’s access to the Site; and (iv) you will notify ArpatechOps promptly of any breach or suspected breach of this Agreement by you or any Authorized User. ArpatechOps reserves the right to terminate any username and password that ArpatechOps reasonably determines may have been used by an unauthorized third party.
2.4.3 Acknowledgement by Authorized User.
If you are invited by a Site Owner to access one or more Sites, you agree that your access to such Site(s) will be governed by the terms of this Agreement except that you agree that you will access such Site(s) solely to support the Site Owner’s authorized use of such Site.
Except as expressly authorized pursuant to this Agreement, User may not and may not permit others to: (a) permit any person, other than Authorized Users for a Site to access or use the Service Offerings for that Site; (b) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas or to create an undue burden on the Service Offerings or the networks or services connected to the Service Offerings; (c) without ArpatechOps’s prior written permission, reverse engineer, decompile, disassemble, or otherwise derive the source code from the Software or Additional UI Functionality for any reason, including to: (i) build a competitive product or service, or (ii) build a product using features, functions, or graphics similar to Service Offerings or (iii) copy any ArpatechOps Confidential Information or any features, functions or graphics of the Service Offerings; (d) alter, modify, adapt, reconfigure, or prepare derivative works of the Service Offerings or Additional UI Functionality, or any part thereof; (e) archive or retain any of the Service Offerings or Additional UI Functionality, or any part thereof without written permission from ArpatechOps; (f) use the Service Offerings to generate or send unsolicited e-mails, bulk mail, spam or other materials to users of the UI or any other individual; (g) use the Service Offerings to harass, threaten, stalk or abuse any person or party, including other users of the UI; (h) use the Service Offerings to create a false identity or to impersonate another person, (i) use the Service Offerings to post any false, inaccurate or incomplete material or delete or revise any material that was not posted by User or the Authorized Users for the Site, as applicable; (j) use the Service Offerings or Additional UI Functionality in any fraudulent, abusive, or otherwise illegal way or in violation of this Agreement; (k) post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any User; (l) use the Service Offerings or Additional UI Functionality to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including those deemed threatening or obscene; (m) without ArpatechOps’s express written permission, introduce software or automated agents or scripts to the Service Offerings so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service Offerings; (n) perform or publish any performance or benchmark tests or analyses relating to the Service Offerings or Additional UI Functionality, or the use thereof; or (o) cover or obscure any page or part of the Service Offerings via HTML, CSS, scripting, or any other means. Except as expressly set forth herein, no express or implied license or right of any kind is granted to User regarding the Service Offerings or Additional UI Functionality, or any part thereof. All licenses and other rights, if any, granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
During and after the term of this Agreement, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against ArpatechOps or ArpatechOps’s customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings or Additional UI Functionality you or any other Authorized Users have used on your behalf. User shall abide by all copyright notices, information, and restrictions contained in any UI accessed through the Services. The parties acknowledge that any actual or threatened breach of this Section 2.5 (Restrictions) will constitute immediate, irreparable harm to ArpatechOps for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Section 2.5, ArpatechOps will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
2.6 Vulnerability Testing.
You may not attempt to probe, scan, penetrate or test the vulnerability of the ArpatechOps Software or the Services or to breach ArpatechOps’s security or authentication measures, whether by passive or intrusive techniques, without ArpatechOps’s express written consent.
2.7 Right to Download the UI and the Software from the UI.
You may download or copy the UI, and other items displayed on the UI for download, for your personal or internal business use only on Sites for which you are the Site Owner, and for the personal or internal business use of the Site Owner for Sites that you access as an Authorized User, provided that you maintain all copyright and other notices contained in such UI. In the event you download Software from the UI, the Software, including any files, images incorporated in or generated by the Software, and the data accompanying the Software is licensed to you by ArpatechOps or third party licensors for your personal or internal business use, and no title to the Software shall be transferred to you.
2.8 Additional UI Functionality.
ArpatechOps will make certain additional ArpatechOps additional UI functionality (“Additional UI Functionality”) available to (a) Users that are Agencies and that have entered into an Ally Agreement with ArpatechOps; (b) Users that are Educational Organizations and that have entered into an EDU Developer Agreement with ArpatechOps (“EDU Developers”); and (c) Users that have purchased an Enterprise Service Offering from ArpatechOps. In any of the above cases, subject to the terms and conditions of this Agreement, ArpatechOps grants each such User a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to use the Additional UI Functionality to manage projects related to ArpatechOps products and services. In no event may any User that has been granted access to the Additional UI Functionality sell, lease or otherwise transfer the Additional UI Functionality or its use to any third party or alter or remove any copyright and other notices contained in the Additional UI Functionality.
2.9 Resale of the Services.
2.9.1 Resale. If you are an Agency or an EDU Developer, you may resell Subscription Plans for Supported Sites to the Client that will be operating the Supported Site and ArpatechOps will provide the Service Offerings for each such Subscription Plan; provided that and for so long as (a) you pay ArpatechOps its then current fee for each such Subscription Plan and any renewal thereof; (b) if you are an Agency, you obtain the Client’s agreement to be bound by the obligations imposed on Subscribers pursuant to this Agreement (the “Pass Through Terms”) and (c) ArpatechOps is made a third party beneficiary of the Pass-Through Terms. Pricing, billing, support, and all other terms and conditions are solely between you and your Client, and your agreement with your Client will include language that specifically exempts third parties, including ArpatechOps, from any liability (the “Agency Reseller Agreement”). You shall promptly notify ArpatechOps of any violations of this Agreement or the Agency Reseller Agreement by any Clients.
2.9.2 Your Failure to Pay.
ArpatechOps reserves the right to terminate the Service Offerings provided by ArpatechOps pursuant to any Subscription Plan, or any renewal thereof, that you purchased and, in the case of Agencies, resold to a Client, in the event that you fail to pay the applicable fees for such Subscription Plan within ten (10) days after such payment becomes due hereunder.
2.9.3 Client Violations.
You are responsible for your Clients’ use of User Content and the Service Offerings. You will ensure that all Clients comply with the Pass-Through Terms and that the terms of your Agency Reseller Agreement with each Client are consistent with this Agreement. If you become aware of any violation of the Pass-Through Terms by a Client, you will immediately terminate such Client’s access to User Content and the Service Offerings provided pursuant to the applicable Subscription Plan.
2.9.4 No Waiver.
ArpatechOps’s waiver of any breach of this Section 2.8 will not constitute a waiver of any rights for any subsequent breach of the same or different subsection hereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of ArpatechOps.
2.9.5 No Warranties.
You may not make any representations or warranties regarding the functionality or performance of the Service Offerings that exceeds the terms set forth in this Agreement, and you agree to indemnify and hold ArpatechOps harmless pursuant to the terms of Section 6 for any claims or lawsuits resulting from such action.
2.9.6 Access to Usernames and Passwords.
You agree that you will not, under any circumstances, provide access to usernames and passwords to Clients.
2.9.7 Audit. You will maintain accurate records relating to resales of the Subscription Plans during the term of this Agreement (the “Term”) and for three (3) years after the expiration or termination of this Agreement. ArpatechOps, or persons designated by ArpatechOps, will, at any time during such period, be entitled to audit such records during normal business hours and on reasonable prior notice, in order to verify User’s compliance with Section 2.8.
ArpatechOps hereby grants to you a limited, non-transferable, royalty-free license to use its trademarks and logos (“Marks”) solely in connection with the fulfillment of your rights under this Agreement, and at all times subject to ArpatechOps’s specifications as set forth at http://www.ArpatechOps.com
ArpatechOps-trademark-standards-use and the terms and conditions of this Agreement. You acknowledge and agree that ArpatechOps holds all right, title and ownership in and to the ArpatechOps Marks and the goodwill appurtenant thereto.
2.11 Third Party Websites and Third Party Applications.
The Services and the UI may contain links to third party websites and/or applications (“Third Party Websites” and “Third Party Applications”). You acknowledge that in the event you click on a link to a Third Party Website, we will not warn you that you have left the Web Site and are subject to the terms and conditions (including privacy policies) of another website or destination. You further agree that the Third Party Websites and Third Party Applications are not under the control of ArpatechOps. ArpatechOps is not responsible for any Third Party Websites or Third Party Applications. ArpatechOps provides access to the Third Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to the Third Party Websites or the Third Party Applications. You use all links in the Third Party Websites and all Third Party Applications at your own risk. When you leave our Web Site, our Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites and Third Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. You acknowledge and agree that ArpatechOps shall not be responsible or liable, directly or indirectly, for any liability, damage, or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Applications, and that you will indemnify and hold ArpatechOps harmless from and against any such liabilities, damages, or losses pursuant to the terms of Section 6.
You acknowledge and agree that ArpatechOps may modify the Content of each Site based on the features or Third Party Applications enabled. For example, ArpatechOps may detect e-mail addresses and replace them with a script in order to keep them from being harvested, or ArpatechOps may insert code to improve page load performance or enable Third Party Applications. You acknowledge and agree that ArpatechOps may, based on your settings: (a) intercept requests determined to be threats and present them with a challenge page; (b) add cookies to your domain to track visitors, such as those who have successfully passed the human user identification procedure on a challenge page; (c) add script to your pages to, for example, add services, Third Party Applications, or perform additional performance tracking; and (d) make other changes to increase performance or security of your Development Site(s) and/or Supported Site(s).
You agree that submission of any ideas, suggestions, documents and/or proposals to ArpatechOps (“Feedback”) is at your own risk and that ArpatechOps has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to ArpatechOps a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
3. Proprietary Rights
3.1 Intellectual Property Rights.
As between you and us, we or our licensors own and reserve all right, title, and interest in and to the Service Offerings and Additional UI Functionality, in whole and in part, and all derivative works thereof. The UI is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. Except as expressly set forth herein, no express or implied license or right of any kind is granted to User regarding the Service Offerings or Additional UI Functionality, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Service Offerings or Additional UI Functionality. All rights not expressly granted to User are reserved to ArpatechOps.
3.2 Service Offerings License.
Subject to the terms and conditions of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (a) access and use the Services solely in accordance with this Agreement; and (b) use the UI solely in connection with your permitted use of the Services. The Service Offerings and Additional UI Functionality may contain open source software components which are licensed under the terms of the applicable open source software licenses and not this Agreement.
3.3 Proprietary Rights of User Content.
User shall own all User Content that User contributes to the UI, but User agrees that ArpatechOps and its authorized agents may use the User Content for all reasonable and necessary purposes required to perform the Services for User. On termination of User ’s use of the Services and the UI, ArpatechOps shall make all reasonable efforts to promptly remove from the UI and ancillary systems, such as back-up servers, and cease use of the User Content; however, User recognizes and agrees that caching of or references to the User Content may not be immediately removed. User warrants and represents that User has the right to grant ArpatechOps the rights set forth above and that it will not contribute any User Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless User owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, Trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after User has been notified that such User Content violates any of sections (a) to (e) of this sentence. Without limiting the generality of the foregoing, User shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Service Offerings by ArpatechOps and/or User. User shall be solely responsible for ensuring that any processing of User Content by ArpatechOps and/or User via the Service Offerings does not violate any applicable laws. User shall not process or submit to the Service Offerings any User Content that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with ArpatechOps relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (iv) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission of any crime or offense. ArpatechOps reserves the right to remove any User Content from the UI, suspend or terminate User’s right to use the Services at any time, or pursue any other remedy or relief available to ArpatechOps under equity or law, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if ArpatechOps is concerned that User may have breached the immediately preceding sentence), or for no reason at all.
4. User Responsibilities
4.1 Security and Backup.
You are solely responsible for the development, content, operation, maintenance, and use of User Content. For example, you are solely responsible for:
(a) the technical operation of User Content, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
(b) compliance of User Content with this Agreement, other policies, and the law;
(c) any claims relating to User Content; and
(d) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that User Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup of User Content, which may include the use of encryption technology to protect User Content from unauthorized access and routine archiving User Content. Log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf; provided that you are liable for any violation of this Agreement by such agents and subcontractors. Authorized User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, User Content or use of the Service Offerings. For each Site for which you are the Site Owner, you (a) are responsible for use of User Content and the Service Offerings by Authorized Users; (b) will ensure that Authorized User comply with their obligations under this Agreement; and (c) will immediately terminate any Authorized User’s access to the Site if you become aware of any violation of the Agreement by such Authorized User.
4.2 Restriction on Use of Services and/or UI.
User is responsible for all of its activity in connection with the Services and accessing the UI. Any fraudulent, abusive, or otherwise illegal activity or any use of the Services or UI in violation of this Agreement may be grounds for termination of User’s right to Services or to access the UI.
5.1 Relationship with User.
ArpatechOps has no special relationship with or fiduciary duty to you. You acknowledge and agree that ArpatechOps has no control over, and no duty to take any action regarding: which Users gains access to the UI; what effects the UI may have on you; how you may interpret or use the UI; or what actions you may take as a result of having been exposed to the UI. Any portion of the User Content of the UI that is provided by you is your responsibility and any portion of the User Content provided by any third party is the responsibility of the third party who posted such User Content. ArpatechOps does not monitor the User Content of the UI and takes no responsibility for such User Content. You release ArpatechOps from all liability for User Content or Third Party Content which you access through the UI.
5.2 Disclaimer of Warranties.
The Service Offerings and Additional UI Functionality are provided on an “as is” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. ArpatechOps makes no representations or warranties of any kind with respect to the Service Offerings or Additional UI Functionality, including any representation or warranty that the use of them will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your, or your customer’s or Client’s, requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
5.3 Disclaimer of Liability.
To the fullest extent allowed by law, ArpatechOps disclaims any liability or responsibility for the accuracy, reliability, availability, completeness, legality or operability of the Service Offerings, Content and Additional UI Functionality provided under this Agreement. By using the Service Offerings, Content, or Additional UI Functionality, you acknowledge that ArpatechOps is not responsible or liable for any harm resulting from: (1) use of the UI; (2) downloading information contained on the UI including but not limited to downloads of Content posted by third parties; (3) unauthorized disclosure of images, information or data that results from the upload, download or storage of Content posted by third parties; (4) the temporary or permanent inability to access or retrieve any User Content from the UI, or (5) harm caused by viruses, worms, Trojan horses, or any similar contamination or destructive program.
You will defend, indemnify, and hold us harmless, including our employees, officers, directors, representatives, our licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the Service Offerings or Additional UI Functionality (including any activities under your account and use by Authorized Users, or your employees, agents, subcontractors, customers and Clients); (b) breach of this Agreement or violation of applicable law by you, Authorized Users, or your employees, agents, subcontractors, customers or Clients; (c) User Content or the combination of User Content with other applications, Content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your User Content or by the use, development, design, production, advertising or marketing of User Content; or (d) a dispute between you and any employee, agent, contractor, customer or Client. If you resell the Services pursuant to Section 2.8, the grounds for indemnification stated above also include any claim brought by your Clients arising out of your resale of the Services. If we are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
We will promptly notify you of any claim subject to Section 6.1, but our failure to promptly notify you will only affect your obligations under this Section 6 to the extent that our failure prejudices your ability to defend the claim. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
7. Limitation of Liability
WE AND OUR LICENSORS WILL NOT IN ANY EVENT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR YOUR LOSS OF PROFITS, GOODWILL, USE, OR DATA, EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OFFERINGS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE LAW, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR USER CONTENT OR OTHER DATA. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY LIABILITY INCURRED BY OUR LICENSORS) WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. User Content
Although ArpatechOps will make reasonable efforts to store and preserve the material residing on the UI, ArpatechOps is not responsible or liable in any way for the failure to store, preserve or access User Content or other materials you transmit or archive on the UI. Although the Service Offerings may offer mechanisms for the creation of back-ups of the User Content, you are solely responsible for creating copies of any data, material, or information transmitted, posted, or uploaded to the Service Offerings. All User Content is User’s property and is for User’s exclusive use subject to the rights given to ArpatechOps in Section 3.3. In the event of data corruption, hardware failure or other data loss, ArpatechOps will make reasonable efforts to restore lost or corrupted data from server backups. Web server raw log files are not included in the backups and cannot be recovered during server restoration. ArpatechOps shall not be responsible for lost data or site content. User shall maintain a local copy of all data uploaded or stored on ArpatechOps servers. ARPATECHOPS SHALL NOT RESTORE USER CONTENT UPON YOUR REQUEST. ARPATECHOPS SHALL NOT RETAIN ANY OF YOUR USER CONTENT AFTER ACCOUNT TERMINATION. ALL USER CONTENT IS DELETED (A) FROM THE SERVERS AT THE TIME THE ACCOUNT IS TERMINATED AND (B) FROM BACK-UPS DURING SCHEDULED BACK UP ROTATION. ARPATECHOPS SHALL NOT RESTORE, “BURN” TO CD, OR SEND OUT ANY USER CONTENT PERTAINING TO TERMINATED ACCOUNTS. UNDER NO CIRCUMSTANCE SHALL ARPATECHOPS BE LIABLE FOR ANY LOSS OF USER CONTENT.
9. Fees and Payments
9.1 Payment of Service Fees.
Some of the Service Offerings require payment of fees. All fees are stated in U.S. dollars. Subscriber shall pay all applicable fees, as described on the Web Site in connection with such Service Offerings selected by Subscriber, and any related taxes or additional charges. All fees are non-refundable unless expressly stated otherwise on the Web Site. Subscriber represents to ArpatechOps that Subscriber is the authorized account holder or an authorized user of the chosen method of payment used to pay for the paid aspects of the Service Offerings. ArpatechOps may modify and/or eliminate such fee-based Service Offerings at its discretion. Subscriber understands and agrees that the payment for virtual goods grants Subscriber a limited license to use the virtual goods as specified on the UI. All payments are made without the right of setoff or chargeback. Subscriber will pay interest, at a rate equal to one percent (1%) per month on any undisputed amount that remains unpaid after it is due. If Subscriber fails to pay fees in accordance with this Section, ArpatechOps may suspend fulfilling its obligations under this Agreement until such payment is received by ArpatechOps. Subscriber will pay directly any taxes arising out of this Agreement or ArpatechOps’s performance under this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on ArpatechOps’s net income and all employer reporting and payment obligations with respect to ArpatechOps’s personnel. If any applicable law requires Subscriber to withhold amounts from any payments to ArpatechOps under this Agreement, (a) Subscriber will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish ArpatechOps with tax receipts evidencing the payments of such amounts and (b) the sum payable by Subscriber upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, ArpatechOps receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount ArpatechOps would have received and retained absent the required deduction or withholding. ArpatechOps reserves the right to contract with a third party for the purpose of processing payments. Such third party may impose additional terms and conditions governing payment processing.
9.2 Modification of Service Fees.
ArpatechOps may change its prices at any time but will provide you reasonable notice of any such changes by posting the new prices on the UI with or without notice. If you do not wish to pay the new prices, you may cancel the services prior to the change going into effect.
The Term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and remains in full force and effect while you use the UI and the Services, unless terminated earlier in accordance with this Agreement or any other agreement you may have with ArpatechOps. The term of any Subscription Plan or Service Offering shall commence on the date when the Subscription Plan or Service Offering commences and remains in full force and effect for the term of the Subscription Plan or Service Offering, unless terminated earlier in accordance with this Agreement.
10.2 Right to Terminate.
Either party may terminate the Service Offerings at any time by notifying the other party by any means. ArpatechOps may also terminate or suspend any and all Services and access to the UI immediately, including any Subscription Plan, at its sole discretion and without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account or any Subscription Plan or Service Offering, your right to use the Services, access the UI, and any User Content or Third Party Content will immediately cease.
10.3 Obligations of Subscriber after Termination.
Sections 2.5, 2.8.5, 2.12, 3.1, 3.3, 4.3, 5, 6, 7, 8, 9, 10.3,11,12,13 and 14 shall survive termination of this Agreement. Termination of your access to and use of the UI and the Services, or any Subscription Plan, shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to ArpatechOps, including without limitation any indemnification obligations contained herein.
11. Confidentiality and Privacy
Each party expressly recognizes that the Confidential Information of the other party is being disclosed under conditions of confidentiality. Each party shall not disclose Confidential Information to any third party; provided that it may, however, disclose Confidential Information to its employees and agents who need to know Confidential Information in order to assure its compliance with the other terms and conditions of this Agreement. Each party shall liable for all violations of this Section 11 by its employees and agents. In the event that a party is required to disclose Confidential Information pursuant to any applicable statute, regulation or order of a court of competent jurisdiction, that party may do so provided that it uses commercially reasonable efforts to notify the other party of the required disclosure.
12. Copyright Policy
ArpatechOps has adopted the following policy toward copyright infringement with respect to the UI in accordance with the Digital Millennium Copyright Act, a copy of which is located at http://www.loc.gov/copyright/legislation/dmca.pdf.
The address of ArpatechOps’s designated agent for copyright takedown notices (“Designated Agent”) is listed below.
12.2 Reporting Copyright Infringements.
If you believe that Content residing or accessible on the UI infringes a copyright, you (the “Notifying Party”) are asked to send a notice of copyright infringement containing the following information to the Designated Agent at the address below: (a) description of the copyrighted work or material that the Notifying Party claims has been infringed; (b) a description of the location on the Web Site or any other Site of the material that the Notifying Party claims is infringing; (c) contact information about the Notifying Party, including address, telephone number and e-mail address; (d) a written statement that the Notifying Party has a good faith belief that the disputed use is not authorized by the copyright owner, its agent or law; (e) a statement by the Notifying Party, made under penalty of perjury, that the information provided in the notice is accurate and that the Notifying Party is either the copyright owner or is authorized to make the complaint on behalf of the copyright owner; and (f) an electronic or physical signature of the Notifying Party.
ArpatechOps’s designated agent for service of process is: Gary Dylina, Copyright Agent, ArpatechOps Systems, Inc., 717 California Street, 3rd Floor, San Francisco, CA 94108, 415-780-9765, abus[email protected]
13.1 Complete Agreement.
13.2 Export Control.
User acknowledges that the Service Offerings and Additional UI Functionality are subject to export restrictions by the U.S. Government and import restrictions by certain foreign governments. User may not export or re-export the Service Offerings or Additional UI Functionality except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. User shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any Service Offerings or Additional UI Functionality or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. User agrees to the foregoing and warrants that it, its Authorized Users are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Service Offerings and Additional UI Functionality are further restricted from being used for: (i) terrorist activity, or (ii) the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. The Service Offerings and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Service Offerings and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
13.3 Enforceability of Agreement.
User certifies to ArpatechOps that if User is an individual (i.e., not a corporate entity), User is at least 13 years of age. No one under the age of 13 may provide any personal information to ArpatechOps (including, for example, a name, address, telephone number or e-mail address). User also certifies that it is legally permitted to use the Services and access the UI, and takes full responsibility for the selection and use of the Services and access of the UI. This Agreement is void where prohibited by law, and the right to access the Service Offerings and the Additional UI Functionality is revoked in such jurisdictions. ArpatechOps makes no claim that the UI may be lawfully viewed or that Service Offerings and the Additional UI Functionality may be downloaded outside of the United States. Access to the Service Offerings and the Additional UI Functionality may not be legal by certain persons or in certain countries. If you access the UI from outside the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.
13.4 No Waiver of Rights.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
13.5 Force Majeure.
We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, mechanical, telecommunications, or other utility failures or degradation, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.6 Severability of Provisions.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
13.7 Assignment and Transferability of Agreement.
This Agreement is not assignable, transferable or sublicensable by User except with ArpatechOps’s prior written consent. ArpatechOps may assign this Agreement in whole or in part at any time without User’s consent.
13.8 Informal Dispute Resolution.
Before either party may file an action in court seeking relief, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ArpatechOps should be sent to: C/O GlobalServe Inc. 200 Summit Lake Drive, Valhalla, NY 10595 After the Notice is received, you and ArpatechOps shall attempt to resolve the claim or dispute informally. Notice to you shall be sent to the last e-mail address you provided pursuant to this Agreement. If you and ArpatechOps do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party file a court action. The amount of any settlement offer made by any party may not be disclosed in any court action or otherwise.
13.9 Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regards to the conflict of laws provisions thereof. Each party agrees that any claim or cause of action arising under or related to this Agreement will be brought in a court of competent jurisdiction located in the state of Delaware and each party irrevocably consents to such personal jurisdiction and waives all objections thereto.
13.10 Scope of Agreement.
User’s relationship to ArpatechOps is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that you have, any authority to act on behalf of ArpatechOps and further indemnifies and holds ArpatechOps harmless for any claims or lawsuits resulting from such action.
13.11 No Waiver.
No provision of this Agreement, unless such provision otherwise provides, will be waived by any act, omission or knowledge of ArpatechOps or its agents or employoees, except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of ArpatechOps.
13.12 Notice and Contact Information.
Any notice to ArpatechOps that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to http://www.ArpatechOps.com
or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to ArpatechOps Systems, Inc., 717 California St., Third Floor, San Francisco, CA, 94108. Except as otherwise set forth herein, any notice to you shall be in writing and shall be deemed effective when sent by e-mail to the last e-mail address you provided pursuant to this Agreement.
14. Terms and Definitions
14.1 "Additional UI Functionality"
has the meaning set forth in Section 2.7, and includes the master control panel with granular permissions, role-based permissions, SAML integration for the ArpatechOps platform, and the ArpatechOps enterprise gateway.
Means a developer that builds websites for third parties.
14.3 "Confidential Information"
Means all nonpublic information disclosed by us, our business partners or our or their respective employees, contractors or agents, or disclosed by you, that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to us or our business partners’ technology, customers, business plans, promotional and marketing activities, finances, business metrics (e.g., growth rates), business methodologies, our intellectual property, pricing, product roadmaps and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us. Notwithstanding the foregoing, Confidential Information does not include User Content or any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party without reference to the Confidential Information.
Means, without limitation, software or source code, audio, video, animations, text, graphics, logos, tools, photographs, images, illustrations, third party programming code and API, dashboard, administration tools, and graphical interface.
Means an individual or entity that builds websites.
Means the user guides and operations manuals provided with the Service Offerings.
Means each of the web services described in Section 1 of this Agreement, but may not include certain other web services which ArpatechOps may offer now or in the future, including but not limited to ArpatechOps’s Elite subscription plan.
14.8 "Service Offerings"
Means the Services (including associated APIs and ArpatechOps programming code), the Documentation, the Software, the Marks, the UI, and any other product or service provided by us under this Agreement other than the Additional UI Functionality. Service Offerings do not include Third Party Content or User Content.
Means the software used to provide the Services.
14.10 "User Content"
Means Content you or any Authorized User (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account or otherwise transfer, process, use or store in connection with your account.
14.11 "Third Party Content"
Means Content made available to you by any third party on the UI or in conjunction with the Services.
14.12 "UI" or "User Interface"
Means all ArpatechOps-created Content provided to users of the Services, including but not limited to software or source code, audio, video, animations, text, graphics, logos, tools, photographs, images, illustrations, the ArpatechOps programming code and API, dashboard, administration tools, and graphical interface, but excluding the Additional UI Functionality.
14.13 "Web Site"
and any successor website of ArpatechOps.