Terms of Service
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. THEY ARE PART OF AND INCORPORATED INTO THE ORDER AND GOVERN YOUR ACCESS TO AND USE OF THE ARCORO SERVICES PROVIDED BY ARCORO HOLDINGS CORP AND ITS AFFILIATES (THE “COMPANY” OR “LICENSOR”).
By accessing or using the hosted services, products, content, data or other features and functionality available on or through the Company’s website or associated software (together, the “Services”), person or entity subscribing to, using or otherwise accessing the Services (the “Customer”) is agreeing to comply with these terms of service and all policies and guidelines the Company makes available to users of the Services from time to time, including without limitation our Privacy Policy (together, the “Terms of Service”). The Terms of Service are a binding agreement between Company and Customer. If Customer has entered into a signed order form, service order, subscription agreement, trial agreement or other ordering document that specifies its purchase of Services, pricing and related terms (each an “Order”), that Order together with these Terms of Service governs Customer’s access to and use of the Services and supersedes any separate discussions or representations on this topic, including any separate terms Customer may propose in connection with a purchase order or otherwise. The Order will be deemed to apply in case of any conflict between these Terms of Service and the Order.
1. DEFINITIONS.
Unless otherwise defined below, the capitalized terms used in this Agreement shall be defined in the context in which they are used.
1.1. “Agreement” means: (i) the terms and conditions set forth below (the “Terms and Conditions”); (ii) the Order Form and any follow-on Order Forms; and (iii) any addenda signed by both Licensor and Customer.
1.2. “Business Day” means Monday through Friday, 9:00 a.m. to 6:00 p.m., eastern U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
1.3. “Customer” includes the Customer whose name is set forth in the Agreement and Order Form and any affiliated entity which controls, is controlled by, or is under common control with Customer, provided all such entities ordering or using the Service have agreed to be bound by these Terms and Conditions.
1.4. “Customer Data” means all text, files, data, output, programs, information, or other information or material provided by or on behalf of Customer and/or uploaded to, transmitted through, or otherwise used by Customer (including any of its Users) in conjunction with the Service.
1.5. “Customer Equipment” means Customer’s computer hardware, software and network infrastructure used to access the Service.
1.6. “Documentation” means all information, materials, instructions, user guides, manuals, help files, and other descriptive product information, whether in electronic, paper or other equivalent form, provided by Licensor in connection with the Service.
1.7. “Intellectual Property Rights” means collectively, rights under patent, trademark, copyright, and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including moral rights and similar rights.
1.8. “Order Form” means Licensor’s standard Order Form substantially in the for attached hereto as Addendum A that, among other things: (i) specifies the Term, the Service licensed to Customer and applicable pricing; (ii) references this Agreement and includes any additional Customer-specific terms and conditions; and (iii) is signed by authorized representatives of the of both parties and deemed incorporated into the Agreement.
1.9. “Service Level Agreement” means the published Service Level Agreement applicable to the Services, as may be updated from time to time by Licensor.
1.10. “Software” means the object code version of the Licensor software (and any third-party products (if any)), made available through the Service under this Agreement.
1.11. “Software Service, Service, Software as a Service, Hosted or On Demand Service” means collectively (i) the network infrastructure, computer hardware, Software (including any related updates or upgrades), Documentation and any Support or other services that Licensor provides its customers; and (ii) the access Licensor provides its customers to use the Services through its data center.
1.12. “Subscription Fees” mean the fees paid by Customer for the right to use the Service and receive Support during the applicable Term.
1.13. “Support” means the support services provided by Licensor in accordance with the Service Level Agreement and Licensor’s applicable support policies.
1.14. “Term” means the applicable period of time specified in the Order Form for which Customer has contracted to receive the Service together with any Renewal Term.
1.15. “Trademarks” means collectively, the trademarks, service marks, logos, and other source identifiers, together with any and all goodwill associated therewith, owned by Licensor (or any of its affiliates). All other trademarks and trade names are the property of their respective owners, and shall be treated as their proprietary property.
1.16. “User(s)” means Customer, and Customer's employees, consultants, contractors or agents who are authorized to use the Service for Customer’s internal use in the ordinary course of Customer’s business, and not for redistribution, re-marketing, time-sharing, or service bureau use and (i) have been supplied user identifications and passwords to the Service or (ii) have been given direct access to the Service (End-User has system log-in access).
2. SERVICES
2.1. License Grant. Subject to the terms of this Agreement, Licensor hereby grants Customer during the applicable Term, a limited, revocable, non-sublicensable, non-transferable, and non-exclusive license to access and use the Software as a Service in accordance with the Documentation solely for Customer’s internal business purposes. The license granted hereunder is limited to the Services described in Order Form. All rights not expressly granted to Licensee herein are hereby reserved by Licensor.
2.2. Use Limitations. Customer and its Users shall not, and shall not permit third party to, modify, copy, transmit, reproduce, publish, sell, transfer, license, lease, provide as a service bureau or otherwise provide, or create derivative works from, any information, products, or services obtained from or available as part of or in conjunction with the Service. In addition, Customer shall not, directly or indirectly, attempt to or actually reverse engineer, decompile, disassemble, alter, or otherwise attempt to discover any programming code or any source code associated with, or gain unauthorized access to, any part of the Service (including the Software). Customer represents, warrants, and covenants to Licensor that Customer shall access and use the Service in accordance with all of the terms of this Agreement, and in compliance with all applicable laws, rules, regulations, and notices. Customer acknowledges that, in connection with providing the Service, Licensor may use the communications, hosting, data processing and/or fulfillment services of third parties in accordance with the agreements in place between Licensor and such third parties.
2.3. Updates. Licensor may provide software updates and new releases to the Service, including correction of "bugs," certain improvements to existing functionality, and new features at no additional charge to its customers who are current in payment of subscription fees and in full compliance with their agreements with Licensor. For the avoidance of doubt, the subscription to the Service does not include the right to receive updates that are designated by Licensor as new products, versions, services, modules or options for which Licensor charges a separate fee. Licensor, at its sole discretion, may determine the time that any upgrade, reissue or new software release will be made generally available to existing Customers. For the avoidance of doubt, once any such update is provided by Licensor to Customer, such update shall be deemed part of the Software and/or Service for purposes of this Agreement.
3. USE OF THE SERVICE AND USE GUIDELINES.
3.1. Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts except for a security breach directly caused by a deficiency in the Service or the Support. Customer is responsible for safeguarding any and all passwords and credentials associated with User accounts, and will immediately notify Licensor in writing if Customer becomes aware of or suspects a breach of the security of such information. Customer shall be responsible for the availability, accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
3.2. Customer Equipment. Customer shall be solely responsible for providing and maintaining at its own expense, all Internet access, networks, equipment, hardware and software located at Customer’s facilities which may be required to access and use Service. For clarity, Licensor is not responsible for (i) obtaining and maintaining any Customer Equipment or any ancillary services needed to connect to, access or otherwise use the Service; (ii) paying third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service; and (iii) ensuring that the Customer Equipment and any ancillary services are compatible with the Service and comply with any and all configuration requirements set forth in the Documentation.
4. PROPRIETARY RIGHTS.
4.1. Ownership. As between the Parties, the Service (including but not limited to the Software, Documentation, and related hardware, products, services, processes, algorithms, user interfaces, drawings, manuals, specifications, research and development, know-how, trade secrets and other Confidential Information, techniques, designs, discoveries, inventions and other tangible or intangible technical material or information, improvements/enhancements, updates, versions, and derivatives works based on any of the foregoing, and all copies and parts thereof, whether any of the foregoing are pre-existing, developed in the course of this Agreement, or otherwise), and all rights, titles, and interest (including all Intellectual Property Rights) embodied therein or appurtenant thereto, shall at all times remain the sole and exclusive property of Licensor. There are no implied rights and all other rights not expressly granted herein are reserved. Customer shall not alter, remove or conceal any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Service.
4.2. Customer Data. As between the Parties all Customer Data is owned exclusively by the Customer, and Licensor shall not have any responsibility or liability in connection with any Customer Data. Licensor may access Customer’s User accounts, including Customer Data, solely to deliver services, respond to technical problems, to otherwise perform its obligations under this Agreement, or at the Customer’s request. Customer retains all copyright, trademark and other Intellectual Property Rights in Customer Data. Customer is solely responsible for obtaining and maintaining all necessary third-party agreements and consents with respect to any Customer Data. Licensor shall not be liable for any interruption or unavailability of the Service or any damages resulting from Customer’s failure to obtain or maintain such agreements/consents.
4.3. Service Suggestions. Licensor shall have, and Customer agrees to grant and does hereby grant to Licensor, a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use or incorporate into the Service (or any successor product/service) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service (collectively, “Customer Feedback”). Licensor shall have the right (but not the obligation) to incorporate or use any such Customer Feedback.
5. CONFIDENTIALITY
5.1. Confidentiality. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, 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. For the avoidance of doubt, Licensor’s Confidential Information shall include the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Service (including the Software), Licensor technology, business and marketing plans, technology and technical information, product designs, and business processes. As between the parties, Customer Data shall constitute Customer’s Confidential Information. The Receiving Party shall not disclose to anyone except those employees or contractors of the Receiving Party who have a need to know under this Agreement or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.2. “Non-Confidential Information.” Notwithstanding any provision contained in this Agreement, neither Party shall be required to maintain in confidence any of the following: (i) information that, at the time or after disclosure, becomes publicly known or generally known in the industry, except by breach of this Agreement; (ii) information that the Receiving Party can demonstrate resulted from its own research and development, independent of and without reference to disclosure of Confidential Information of the Disclosing Party; (iii) information that the Receiving Party receives from third parties, provided such information was not obtained by such third parties from the Disclosing Party on a confidential basis; or (iv) information that is produced in compliance with applicable law or a court order, provided the other Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
5.3. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate. Further, in the event of any Customer breach related to or violation of Licensor’s Intellectual Property Rights, Customer also specifically acknowledges that any other available remedies may be inadequate and Licensor shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
6. FEES & PAYMENT.
6.1. Subscription Fees and Payment. Customer shall pay all fees specified in all executed Order Form(s) hereunder. Except as otherwise provided in an applicable Order Form, all fees are quoted and due in US dollars. Except as otherwise provided in an applicable Order Form, fees are non-refundable, and subscription(s) purchased cannot be decreased or shortened during the relevant subscription term specified in the Order Form. Fees for Service shall be invoiced in advance and otherwise addressed in accordance with the payment terms set forth in the relevant Order Form. Licensor may change or increase the prices it charges the Customer for the Service, upon providing notice at least thirty (30) days prior to such increase. Any increase or change in prices for the Service shall only occur upon such notice and on any subsequent anniversary of the date set forth on the Order Form.
6.2. Other Direct Fees. Unless otherwise stated in writing, Customer shall reimburse Licensor for all reasonable travel and other related expenses pre-authorized by Customer and incurred by Licensor in the performance of any Service or Ancillary Services.
6.3. Suspension of Service. In the event: (i) Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute); (ii) of breach or suspected breach by Customer of these Terms and Conditions; or (iii) of breach or suspected/threatened breach of security of the Service or any related data, databases, or systems, network, or infrastructure, then in addition to any of its other rights or remedies, Licensor reserves the right to suspend the Service, without notice and without liability to Customer, until such amounts are paid in full or the breach or related incidents are addressed in full to Licensor’s reasonable satisfaction.
6.4. Taxes. Unless otherwise stated, Licensor’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Licensor may be required to charge sales tax pursuant to certain state and local tax laws. Any applicable sales tax charges for the FIRST YEAR ONLY are listed in the sales invoice. The appropriate amount shall be invoiced to and paid by Customer EACH YEAR on the contract anniversary date, unless Customer provides Licensor with a valid Tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for ascertaining if Customer’s state and/or local government requires reporting this purchase and paying appropriate sales and/or use tax amount to the appropriate taxing authority directly.
7. DISCLAIMER.
EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SERVICE (INCLUDING THE SOFTWARE), THE DOCUMENTATION, AND ALL OTHER INFORMATION AND MATERIALS PROVIDED BY OR ON BEHALF OF LICENSOR UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT OF THE APPLICABLE LAW, LICENSOR AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN AN APPLICABLE SERVICE LEVEL AGREEMENT, LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE (INCLUDING THE SOFTWARE AND ANY FUNCTIONS) WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE RELATED SERVERS OR SYSTEMS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE MATERIAL IN THIS SITE WITH REGARD TO CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CUSTOMER (AND NOT LICENSOR) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
8. INDEMNIFICATION.
8.1. Indemnification by Licensor. Subject to this Agreement, Licensor shall defend, indemnify and hold Customer harmless from and against any and all liabilities, losses, damages, claims, costs and expenses, including reasonable outside attorneys’ fees and court costs, judgments, and any amounts paid in any settlement (collectively, “Losses”) incurred as a result of or in connection with any claim, action, suit, litigation, demand or proceeding (collectively, “Claims”) made or brought against Customer by a third party alleging that the use of the Service as authorized hereunder infringes the Intellectual Property Rights of such third party.
8.2. Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Licensor and its affiliates, and their respective officers, directors, employees, representatives, agents, licensees, successors and assigns harmless from and against any Losses incurred in connection with Claims made or brought against Licensor (or its affiliates) by a third party arising out of: (i) any use of the Service except as authorized hereunder any breach; (ii) any violation of applicable laws, rules, or regulations; or (ii) any Customer Data.
8.3. Indemnification Conditions. Each Party’s indemnification obligations under this Agreement are conditioned upon: (a) the indemnified Party providing the indemnifying Party with prompt written notice of the existence of a claim; provided however, that failure to provide such notice will not relieve the indemnifying Party from its liability or obligation under this Agreement except to the extent of any material prejudice directly resulting from such failure; (b) the indemnifying Party having, as its option, sole control and authority over the defense or settlement of such action; and (c) the indemnified Party reasonably cooperating with the indemnifying Party, at the indemnifying Party’s sole cost and expense, in the defense of any claim. The indemnifying Party will not accept any settlement which does not provide the indemnified Party with a complete release or imposes liability not covered by these indemnifications or places restrictions on the indemnified Party without the indemnified Party’s prior written consent, which consent will not be unreasonably withheld or delayed. The indemnified Party may participate in the defense of any claim through its own counsel, and its own expense.
8.4. Infringement Remedy. In the event that any aspect of the Service (including the Software), the Documentation, and/or any other materials or services provided by Licensor under this Agreement is held in a suit or proceeding to infringe or violate any Intellectual Property Rights of a third party, Licensor may, at its option, either: (a) procure for Customer the right to continue using such material/services in accordance with this Agreement; (b) modify such material/services so that it becomes non-infringing or no longer constitutes a misappropriation, without affecting the basic functionality of such material/services; provided, however, that if (a) and (b) are not reasonably practicable in Licensor’s reasonable discretion, Licensor shall have the right, in its sole discretion, to terminate this Agreement (or the applicable Order Form(s) with respect to such material/services by giving Customer thirty (30) days prior written notice. The foregoing will be Customer’s sole remedy under equity and law, with respect to any such infringement or violation.
9. LIMITATION OF LIABILITY.
9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH ANY VIOLATION OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO LICENSOR FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
9.2. Exclusion of Consequential and Related Damages. EXCEPT IN CONNECTION WITH ANY VIOLATION OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, HOWEVER ARISING, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION.
10.1. Term. This Agreement commences on the Effective Date and continues for the subscription Term specified in the Order Form unless terminated earlier pursuant to the terms of this Agreement. Unless otherwise set forth on an applicable Order Form, the subscription Term shall automatically renew unless Customer gives Licensor notice of termination at least sixty (60) days prior to the end of the relevant subscription Term.
10.2. Termination for Cause. Notwithstanding the foregoing, this Agreement may be terminated by either Party immediately upon written notice if the other Party: (i) becomes insolvent or ceases doing business for a period greater than ninety (90) days; or (ii) materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days following written notice to such Party.
10.3. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Licensor prior to the effective date of termination.
10.4. Return of Customer Data. Upon request by Customer made within 90 days of the effective date of termination, Licensor shall, at its then current rate, make available to Customer for download a file of Customer Data. After such 90-day period, Licensor shall have no obligation to maintain or provide any Customer Data or materials.
10.5. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 2.2, 4, 5, 6, 7, 8, 9, 10 and 11; and, any other terms that, expressly or by implication are intended to survive its expiration or termination, will survive the expiration or termination of this Agreement.
10.6. Effect of Termination. Upon the effective date of termination of this Agreement: (i) all licenses granted hereunder shall automatically cease, and Customer shall immediately cease accessing/using the Service and delete or return to Licensor (at Licensor’s direction) any and all copies of the Service (including the Software) and Documentation in Customer’s possession or control; (ii) any and all payment obligations of Customer incurred prior to the date of termination shall immediately become due; and (iii) within thirty (30) days of such termination each Party will return all copies of Confidential Information of the other Party in its possession or control, except as required to comply with any applicable legal or accounting record keeping requirement.
10.7. ExakTime Product-Specific Terms and Conditions. In the event the customer has subscribed to the ExakTime specific product set, the product-specific terms and conditions attached hereto in Exhibit A will apply.
11. GENERAL PROVISIONS.
11.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.
11.2. Force Majeure. Neither Party shall be liable for failure to perform or for delay in performance hereunder due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, fires, floods, earthquakes, accidents, strikes, acts of war, acts of terrorism, riot, embargoes, fuel crises, acts of civil or military authorities, or intervention by governmental authority, provided that such Party gives prompt written notice thereof to the other Party. The foregoing shall not apply to any payment obligations of Customer hereunder. Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.
11.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to the Parties shall be addressed to the attention of its CEO, CFO, SVP of Finance, or signor of this Agreement with a copy to its General Counsel.
11.4. Assignment. Without the prior express written consent of Licensor (such consent not to be unreasonably withheld), Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, including in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign or transfer this Agreement without complying with the terms and conditions of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.5. Governing Law and Venue. This Agreement shall be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules. The state and federal courts located in Newcastle County, Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In the event of any suits or actions or other proceedings to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses incurred therein.
11.6. Export Control Laws. Customer shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.7. Government Use. AS DEFINED IN FAR SECTION 2.101, DFAR SECTION 252.227-7014(A)(1) AND DFAR SECTION 252.227-7014(A)(5) OR OTHERWISE, THE SERVICE, SOFTWARE, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE “COMMERCIAL ITEMS,” “COMMERCIAL COMPUTER SOFTWARE” AND/OR “COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION.” CONSISTENT WITH DFAR SECTION 227.7202, FAR SECTION 12.212 AND OTHER SECTIONS, ANY USE, MODIFICATION, REPRODUCTION, RELEASE, PERFORMANCE, DISPLAY, DISCLOSURE OR DISTRIBUTION THEREOF BY OR FOR THE U.S. GOVERNMENT SHALL BE GOVERNED SOLELY BY THE TERMS OF THIS AGREEMENT AND SHALL BE PROHIBITED EXCEPT TO THE EXTENT EXPRESSLY PERMITTED BY THE TERMS OF THIS AGREEMENT. ANY TECHNICAL DATA PROVIDED THAT IS NOT COVERED BY THE ABOVE PROVISIONS SHALL BE DEEMED “TECHNICAL DATA-COMMERCIAL ITEMS” PURSUANT TO DFAR SECTION 227.7015(A). ANY USE, MODIFICATION, REPRODUCTION, RELEASE, PERFORMANCE, DISPLAY OR DISCLOSURE OF SUCH TECHNICAL DATA SHALL BE GOVERNED BY THE TERMS OF DFAR SECTION 227.7015(B).
11.8. Publicity. With prior written approval, which shall not be unreasonably withheld, the Parties may issue one or more announcements at mutually agreed upon times concerning the relationship. Licensor may also include Customer’s name in a list of its customers provided that Customer’s name or logo are not displayed any more prominently than the name or logo of any other customer.
11.9. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.10. Severability; Interpretation. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.11. Headings; Interpretation. The section headings used in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. All references herein to sections, exhibits, addendums, and schedules shall be deemed to be references to sections of, and exhibits, addendums, and schedules to, this Agreement unless the context requires otherwise. Any and all exhibits, addendums, and schedules attached hereto shall be deemed incorporated herein as if set forth in its entirety herein. Unless the context otherwise requires, the masculine when used herein shall include the feminine and neuter and vice versa. The words “herein”, “herewith” and “hereof” and words of similar import refer to this Agreement as a whole and not to any particular section or provision. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, and “or” is disjunctive but not necessarily exclusive. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party by virtue of the authorship of this Agreement shall not apply to the construction and interpretation of this Agreement. Any ambiguities will be clarified in an equitable manner without regard to authorship and minor errors and misspellings will be corrected to give maximum effect to obvious intent.
11.12. Modifications to Agreement. No provisions of this Agreement shall be amended or modified, in whole or in part, other than by an instrument in writing signed by both Parties. Order Forms that shall be executed from time to time shall be incorporated into the Agreement.
11.13. Entire Agreement. This Agreement, including all addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict between the provisions in this Agreement or Order Form executed hereunder, the terms of such Order Form shall prevail, but only to the extent of any such conflict, and only to the Service covered by such Order Form. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Forms executed under this Agreement) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Exhibit A: ExakTime Product-Specific Terms and Conditions and Warranty
These ExakTime Product-Specific Terms and Conditions and Warranty (collectively, the “ExakTime Terms”) apply to Customer’s use or and access to certain ExakTime products and services (“ExakTime Products”) as more specifically described in an Order between Customer and Company, and are hereby attached to and a part of the Order. Capitalized terms not otherwise defined in these ExakTime Terms shall have the meanings ascribed to such terms in the Order or Terms of Service. To the extent of any inconsistency between these ExakTime Terms and the Terms of Service, these ExakTime Terms shall govern and control.
1. Provision of the Services by ExakTime
a. Company may have subsidiaries and affiliated legal entities around the world ("Subsidiaries and Affiliates"). These companies may provide the Services to you on behalf of Company itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
b. Company is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Company provides may change from time to time without prior notice to you.
c. As part of this continuing innovation, you acknowledge and agree that Company may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Company’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Company when you stop using the Services.
d. You acknowledge and agree that if Company disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
e. You acknowledge and agree that while Company may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Company at any time, at Company’s discretion.
2. Use of the Services by you
a. In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Company will always be accurate, correct and up to date.
b. You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
c. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Company, unless you have been specifically allowed to do so in a separate agreement with Company. You specifically agree not to access (or attempt to access) any of the Services through any automated means unless specifically allowed to do so in a separate agreement with Company.
d. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
e. Unless you have been specifically permitted to do so in a separate agreement with Company, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
f. You agree that you are solely responsible for (and that Company has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Company may suffer) of any such breach.
3. Your passwords and account security
a. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
b. Accordingly, you agree that you will be solely responsible to Company for all activities that occur under your account.
c. If you become aware of any unauthorized use of your password or of your account, you agree to notify Company immediately at info@exaktime.com.
4. License from Company
a. Company gives you a royalty-free, non-assignable and non-exclusive license to use the software provided to you by Company as part of the Services as provided to you by Company (referred to as the "Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Company, in the manner permitted by the Terms.
b. You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Company, in writing.
c. Unless Company has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
5. Content License from you
a. You retain copyright and any other rights you already hold in Content which you communicate or through the Services.
6. Software updates
a. The Software which you use may automatically download and install updates from time to time from Company. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Company to deliver these to you) as part of your use of the Services.
7. Ending your relationship with Company
a. The Terms will continue to apply until terminated by either you or Company as set out below.
b. If you want to terminate your legal agreement with Company, you may do so by (a) notifying Company at any time and (b) closing your accounts for all of the Services which you use, where Company has made this option available to you. Your notice should be sent, in writing, to Company’s address which is set out at the beginning of these Terms.
c. Company may at any time, terminate its legal agreement with you if:
i. you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
ii. Company is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
iii. Company is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
iv. the provision of the Services to you by Company is, in Company’s opinion, no longer commercially viable.
8. Other content
a. The Services may include hyperlinks to other web sites or content or resources. Company may have no control over any web sites or resources which are provided by companies or persons other than Company.
b. You acknowledge and agree that Company is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
c. You acknowledge and agree that Company is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
9. Hardware Warranty
a. The following products are warranted by the Company for a period of one (1) year from the date of delivery to a Customer and can be further protected under ExakCare Shield support:
i. JobClock Hornet
ii. JobClock/EX
iii. JobClock/LE
iv. Keytab Reader
b. This coverage is valid as long as you follow Company’s instructions with respect to installation, usage, cleaning and maintenance. Company will cover ground shipping costs in the U.S. for replacement items being sent out.
i. Company will replace or repair, at our option, any of the above items that fail to perform to stated specifications, including: All time and attendance recording and downloading functions
ii. Audio and visual indicators
iii. Gaskets, seals, and weatherproofing
iv. Bluetooth radio
c. Company will not cover the following:
i. Accidents, alterations, misuse, vandalism, lost keys or theft. Any modification of the hardware voids this warranty
ii. Cosmetic issues, such as color changes due to weather, salt air, or chemicals
iii. Batteries
d. Custom software development is non-refundable
e. ExakCare Shield Extended Warranty
i. The optional addon ExakCare Shield extends the original 1-year warranty for an additional year if it is purchased with each year’s renewal of services. The same coverage as is listed above applies.
f. Other Warranty Coverage
i. All mobile devices and accessories are warranted through their respective manufacturers.
g. The Fine Print
i. ExakTime Hardware Warranty and ExakCare Shield are non-transferable. Classic JobClocks are not eligible for ExakCare Shield. You are responsible for shipping the product to Arcoro. Arcoro will cover the outbound ground shipping for the replacement unit. If it is determined the problem is not covered under the terms or there is a “no problem found” diagnosis, you will be responsible for any related charges. Replacement or repair is at Arcoro’s discretion.
Exhibit B: Consent for SMS Communications
By accessing or using our services, including receiving SMS communications, you agree to comply with and be bound by these Terms and Conditions. If you do not agree with these terms, please do not engage with our services.
1. Consent for SMS Communications
By providing your consent to receive SMS communications, you acknowledge and agree to receive text messages from Arcoro Holdings Corp at the phone number you provide. Information obtained as part of the SMS consent process will not be shared with third parties.
2. Types of SMS Communications
If you have consented to receive text messages, you may receive SMS communications related to the following:
Customers and Guest: Updates regarding your orders, deliveries, or other relevant information.
Job Applicants: Information about your application status, onboarding materials, or other employment-related updates
4. Standard Messaging Disclosures
Messages and data rates may apply. Standard messaging rates will be charged by your mobile service provider.
You can opt-out of receiving SMS messages at any time by texting “STOP” to the number from which you received the message.
For assistance, text “HELP” or visit our [Privacy Policy(Add link)] and [Terms of Service URL]
5. Privacy
We respect your privacy and will only use the information you provide to communicate with you via SMS as outlined above. Your personal data will not be shared with third parties unless required by law or as necessary to deliver the requested service.
6. Modifications
We reserve the right to update or modify these Terms and Conditions at any time. Any changes will be posted on this page with an updated revision date. By continuing to engage with our services, you agree to be bound by any changes to these terms.