ARTURO SUBSCRIPTION AGREEMENT
This Arturo Service Subscription Agreement (“Agreement”) is between Deep Image Analytics, Inc. D/b/a Arturo, Inc. (“Arturo”) and the customer identified on the initial Order (“Customer”). Customer agrees to be bound by all of the terms and conditions of this Agreement, entered into as of the date Arturo signs the initial Order (the “Effective Date”).
1. Definitions. Terms used in this Agreement with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
(a) “Agreement” means this Arturo Subscription Agreement, together with all applicable Orders.
(b) “Authorized User” means an individual employee or contractor of Customer, who is authorized by the Customer to use the Services for Customer’s business purposes.
(c) “Data” means all data received by Customer through its use of the Services.
(d) “Documentation” means Arturo’s written user guides for the Services as released by Arturo from time to time.
(e) “Order” means the written Order(s), signed by both parties, expressly referencing this Agreement, specifying the Services to be provided to Customer along with the pricing, term and other specific terms and conditions applicable to such Services.
(f) “Services” means the on-demand, software-as-a-service, which is subscribed for hereunder by Customer, as set forth in the “Services” section of one or more Orders.
(a) Arturo will provide Customer with non-exclusive access to the Services and Documentation, as set out in the applicable Order(s). From time to time, Customer may contract for additional Services by entering into new Orders, which, upon execution by both parties, will be subject to the terms and conditions of this Agreement.
(b) Subject to the terms and conditions of this Agreement, during the Term of this Agreement, Arturo hereby grants to Customer a non-exclusive, non-sublicensable, non-transferrable right and license to copy, display, modify and distribute Data acquired through use of the Services in accordance with an applicable Order, for Customer’s internal business purposes (which may include, for purposes of clarity, use on and in connection with Customer’s public-facing websites and mobile applications).
(c) Arturo or its licensors own all right, title and interest in and to the Services and Documentation, including all applicable patents, copyrights, trademarks and other proprietary and intellectual property rights therein, along with all enhancements, modifications, translations and derivative works. Except for the limited rights expressly granted in this section, Customer has no rights in or to the Services or Documentation, and any rights not expressly granted are reserved by Arturo and its licensors.
3. Term and Termination.
(a) Term. This Agreement will begin on the Effective Date and will, unless earlier terminated as provided herein, continue in effect so long as an Order is in effect (the “Term”). The term of each Order will begin on the Subscription Start Date set forth in the Order and continue for the Initial Term of such Order set forth in the Order, or if no Initial Term is set forth, twelve (12) months. Following the Initial Term of an Order, the Order will automatically renew for subsequent Renewal Terms as set forth in the Order, or if no Renewal Term is set forth, twelve (12) months, unless either party provides written notice no later than the beginning of the Termination Notice Period set forth in the Order of its intention that the Order not be renewed.
(b) Termination for Breach. Either party may terminate this Agreement or an Order if: (i) the other party is in material breach of this Agreement or such Order, and fails to remedy such breach within fourteen (14) days of receiving written notice to do so by the nondefaulting party; (ii) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days; (iii) the other party makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise; or (iv) Customer becomes controlled by, in control of, or under common control with, a competitor of Arturo.
(c) Termination for Convenience. Either party may terminate this Agreement for convenience by providing at least ninety (90) days’ written notice to the other.
(d) Effect of Termination. Upon termination or expiration of this Agreement or an Order for any reason, all rights of the Customer to access or use the terminated or expired Services and Data will end. Termination of individual Orders will leave other Orders unaffected. In the event the Agreement or an Order is terminated by Arturo in accordance with Section 9(a), then all payments that would otherwise have been payable for the Services during their term will become due immediately. Sections 1, 2(b), 3, 5, 8, 9, 10, 11, 12(b), and 13 will survive any termination or expiration of this Agreement or an Order.
(e) Suspension. In addition to Arturo’s other rights or remedies which may be available under this Agreement or at law or in equity, if Customer commits a breach of this Agreement (including failure to pay any amounts when due under this Agreement), then Arturo will also be entitled to suspend performance of any of its obligations under this Agreement, including access to the Services, upon ten (10) days’ notice to Customer. Any suspension by Arturo will not excuse Customer from its obligation to make payments under this Agreement. If, however, Arturo elects to continue to provide any of the Services despite any such breach, its action will not constitute a waiver of any breach by Customer or in any way preclude Arturo’s right to exercise any other rights or remedies available to it, including termination.
4. Price and Payment.
(a) Fees. In consideration for the provision of the Services, Customer will pay to Arturo the amounts set forth in the “Price and Payment” section of each Order. However, in the event that the Customer requests a change in the nature, quantities, duration or scope of Services, Arturo may charge different fees reflecting such change. Pricing is subject to change in any Renewal Term.
(b) Invoices. All fees for Services will be invoiced and all invoices are due payable within thirty (30) days of the date of the invoice unless otherwise specified in the “Price and Payment” section of the Order. Interest will accrue on overdue amounts at the rate of 1.5% per month, or the greatest amount permitted by law, whichever is less. All prices set forth in this Agreement are in the currency specified on the Order, and payments to Arturo under this Agreement are to be made in such currency.
(c) Payment Methods. By providing a form of payment to Arturo, including but not limited to debit card, credit card or ACH information, Customer agrees to: (i) fulfill its obligations to pay for the Services by the date on which payment is due; (ii) provide payment information that is and will remain complete and accurate; and (iii) authorize Arturo charge the payment method to be paid for the Services. Arturo may retain the payment information, including all submitted debit and credit card information, submitted by Customer. Customer will be responsible for any credit card chargeback fees as well as any reasonable collection costs Arturo incurs in connection with payment under this Agreement.
(d) Taxes. The amounts specified in any Order do not include any taxes, levies, duties, or similar charges assessed against or payable in connection with this Agreement, exclusive only of taxes based on Arturo’s net income (“Taxes”). Customer will be responsible for and pay all Taxes, and will reimburse Arturo should Customer fall to do so. If Customer claims to be exempt from any Taxes, then Customer will deliver to Arturo appropriate evidence of such tax exemption status.
5. Restrictions. Customer will abide by all requirements, guidelines, limitations and parameters set forth in the “Restrictions” section in each applicable Order. Additionally, Customer agrees to: (a) use the Services and Data only in accordance with the Documentation and any additional instructions provided by Arturo (including, without limitation, use in accordance with data provider agreements between Arturo and third parties) and solely for Customer’s own internal business operations (which may include, for purposes of clarity, display of Data within Customer’s public facing website or mobile applications); (b) only allow Authorized Users to access the Services; (c) maintain commercially reasonable security standards for its and its Authorized Users’ use of the Services; (d) not reverse engineer, disassemble, decompile, unlock, recreate, modify, copy, license, sublicense, create derivative software from the Services or any portion thereof; (e) not sell, rent, lease, loan, distribute or reproduce any of the Services or any part thereof (including Data) except as elsewhere expressly permitted under this Agreement; (f) not send or store viruses, malicious code, infringing or unlawful material to or on the Services; (g) not attempt to gain unauthorized access to, or disrupt the integrity or performance of, any part of the Services or any data contained therein or any systems, equipment or networks connected to the Services; (h) not permit access to the Services by a competitor of Arturo; (i) not use the Services to provide any service to a third party, the operation of a service bureau, outsourcing or timesharing service; (j) not attempt to circumvent or disclose the user authentication or security of the Services or any host, network, or account related thereto; (k) and not make any use of the Services or Customer Data that violates any applicable law or regulation. In the event of any breach or attempted breath of this section, Arturo reserves the right to immediately suspend Customer’s access to the Services, without liability, in addition to its other rights and remedies.
6. Customer Responsibilities.
(a) Customer will be solely responsible for: (i) the provision of its own reliable, high speed internet connectivity to and from the Services, for each location that needs access to the Services; (ii) its own equipment, including but not limited to administrator and end user workstations and compatible web browsers; (iii) configuration, use and operation of the Services to suit Customer’s environment; (iv) all activities of Authorized Users conducted under their logins, and for their compliance with this Agreement; and (v) providing up to date contact information for Customer’s primary contacts (collectively, “Customer Responsibilities”).
(b) Customer acknowledges and agrees that: (i) the Customer Responsibilities may change from time to time in conjunction with changes to the Services; and (ii) a failure of Customer to comply with this provision may mean that the Customer is unable to access or use the Services, or that Arturo is unable to comply with its support obligations, and Arturo will have no liability in such situations.
(c) Customer is responsible for monitoring its use of the Services, and will promptly report to Arturo any actual use in excess of the scope of use authorized in the applicable Order(s). Arturo also has the right to monitor the number of Authorized Users and Customer’s use of the Services, to ensure Customer’s compliance with this Agreement, and to assist in managing the Services. In addition to other rights or remedies available, Arturo may invoice Customer at any time for any usage in excess of the scope of use authorized in the applicable Order(s).
7. Storage and Security. Arturo and Customer agree to use commercially reasonable efforts to establish connectivity between their respective systems using security methods and protocols that would not be expected to be readily disabled or circumvented without the application of professional tools not readily or commercially available to consumers, or to implement technology which the parties agree is comparable to the aforementioned.
(a) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ARTURO DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM ARTURO OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(b) ARTURO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(c) ARTURO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(d) HARM TO CUSTOMER COMPUTER. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’ PROPERTY (INCLUDING CUSTOMER’ COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
(a) Definition; Restrictions; Return. The parties acknowledge that one party (the “Receiving Party”) may receive confidential and/or proprietary information relating to the other party (the “Disclosing Party”) (collectively, “Confidential Information”). Arturo Confidential Information will be deemed to include, regardless of marking, the Services and Documentation. A Receiving Party will use Confidential Information only for the performance of this Agreement, using the same or greater degree of care in safeguarding Confidential Information as it uses for its own Confidential Information of like importance, but no less than reasonable care. A Receiving Party is permitted to disclose Confidential Information to its employees and agents, in each case, have need to know to perform its obligations or exercise its rights under this Agreement, and provided that the Receiving Party is liable for such employees’ and agents’ compliance with the terms of this section. Upon request, all copies and excerpts of Confidential Information will be promptly returned to Disclosing Party, or at the Receiving Party’s option, instead securely erased, excepting any archived copies, which will remain subject to these confidentiality provisions.
(b) Exclusions. A Receiving Party’s obligation of confidentiality and restriction on use will not apply to Confidential Information if, and then only to the extent that it is: (i) known to Receiving Party before receipt from Disclosing Party; (ii) generally available to the public (or becomes so) without the fault or negligence of Receiving Party; (iii) rightfully received by Receiving Party from a third party without a duty of confidentiality; or (iv) independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information.
(c) Required Disclosures. Receiving Party is permitted to disclose Confidential Information as required by law provided, however, that the Receiving Party will: (i) where permitted by law, give Disclosing Party written notice promptly upon receipt of a disclosure requirement and before the disclosure is made, (ii) take reasonable actions and provide reasonable assistance to Disclosing Party, to secure confidential treatment of the Confidential Information at the cost of Disclosing Party, and (iii) disclose only such Confidential Information as is required by law.
10. Indemnification. Customer agree to defend, indemnify and hold harmless Arturo and its subsidiaries, affiliates, officers, agents, partners, and employees from any claim or demand, including reasonable attorneys' fees, arising out of (a) Customer's use of the Services; (b) Customer's violation of this Agreement, and (c) any use of the Services authorized or permitted by Customer.
11. LIMITATION OF LIABILITY.
(a) UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING NEGLIGENCE, SHALL ARTURO OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, DATA, OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM CUSTOMER'S USE OR THE INABILITY TO USE THE SERVICES, EVEN IF ARTURO OR AN ARTURO AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT SHALL THE TOTAL LIABILITY OF ARTURO OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS, OR SUPPLIERS TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100 USD) OR FEES PAID OR PAYABLE TO ARTURO IN THE TWELVE MONTH PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO LIABILITY OCCURRED.
(c) CUSTOMER AND ARTURO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATED TO ARTURO MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12. Feedback; Usage Data.
(a) Customer may provide at its discretion, or Arturo may request, input regarding the Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of a portion of the Services or another Arturo service or product (collectively “Feedback”). Customer acknowledges and agrees that any Feedback will be considered Confidential Information of Arturo and Customer hereby assigns to Arturo all right, title and interest in and to such in Feedback. Arturo will be entitled to use Feedback for any purpose without restriction or remuneration of any kind.
(b) Customer herby grants to Arturo a worldwide, perpetual, non-exclusive, royalty-free, fully paid license to copy, display distribute and modify information arising from Customer’s use of the Services, without restriction or remuneration. Such use may include, but not be limited to: (i) providing Services to Customer; (ii) improving or creating Arturo products and services; (iii) compiling statistical and performance information related to the Services, and/or (iv) developing and distributing benchmarks and similar reports and databases. In no event will Arturo’s publication of any such information include any Customer Data or be identifiable with respect to any person or entity.
13. General Provisions.
(a) Relation of the Parties. The parties agree that each is acting as an independent contractor of the other and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
(b) Force Majeure. With the exception of Customer’s payment obligations, neither party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable.
(c) Assignment. Neither party may assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the nonassigning party (which will require written consent from the nonassigning party), either party may assign this Agreement without obtaining the consent of the other party, to an affiliate or to any entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
(d) Notices. Any notice provided in accordance with this Agreement must be in writing and sent by (i) courier, or (ii) certified or registered mail with postage paid, in each case with confirmation of receipt. Any such notice will be effective on confirmation of receipt. All such notices will be addressed as set forth above with the respective party’s name as set forth on the most recent Order.
(e) Governing Law and Choice of Forum. This Agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions. Both parties agree that any claim or dispute between them must be resolved exclusively by a state or federal court located in Cook County, Illinois. Both parties agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes, and hereby waive all claims of forum non conveniens.
(f) Publication. Customer consents to publication of its name by Arturo in a factual listing of Arturo’s customers. Both parties must approve in writing all other public announcements or other promotional efforts made regarding the terms and conditions of this Agreement, such approval not to be unreasonably withheld.
(g) No High Risk Activities. Customer will not use the Services in connection with any High Risk Activity. As used in this Agreement, “High Risk Activity” means uses where the failure of the Services could lead to death, personal injury, or environmental damage.
(h) No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
(i) Severability. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
(j) No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, will not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other provision of this Agreement. All waivers must be in writing, and signed by the party waiving its rights.
(k) Captions and Headings. The captions and headings of clauses contained in this Agreement preceding the text of articles, sections, subsections and paragraphs are inserted solely for convenience and ease of reference only and will not constitute any part of this Agreement, or have any effect on its interpretation or construction.
(l) Compliance With Laws. Each party will comply with all federal, state and local laws and regulations applicable to it (“Laws”). If, after the Effective Date of this Agreement any Law becomes effective which substantially and materially alters the ability or cost of either party to perform its obligations under this Agreement in whole or part, the parties will renegotiate the provisions of this Agreement to the extent necessary to reflect the effect of such Law. If renegotiations do not result in terms agreeable to both parties, the party that would bear the altered cost due to the change in the Law will have the right to terminate this Agreement without penalty upon thirty (30) days written notice to the other party. Without limiting the generality of the foregoing, each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.
(m) Order of Precedence. If there is a conflict or ambiguity between any provision of this Agreement and any Order, the provisions of this Agreement will prevail, unless and to the extent that any Order expressly provides that any portion of that Order will prevail.
(n) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.