1.2 “Company Records” means company/business entity information as may be identified in an Order
1.3 “Contact Records” means information related to certain employees of certain companies/business entities as may be identified in an Order.
1.5 “Content” means all materials displayed or provided by ARSENAL Foundation via the Services including, but not limited to information, text, graphics, news articles, photographs, images, illustrations, audio clips and video clips. Content includes Records. Content excludes Customer Data.
1.5 “Contract Year” means a 12-month period unless otherwise expressly stated otherwise in the particular Order.
1.6 “Customer Data” means proprietary data provided by You to ARSENAL Foundation in connection with the Services. Customer Data excludes the Content.
1.7 “Effective Date” means the initial start date of a particular Order which may be identified in a particular Order as the “Effective Date,” “Services Activation Date,” “Contract Start Date” or some other similar reference.
1.9 “Order(s)” means each separate online, electronic, or physical document (e.g., the ARSENAL Foundation Order Form or other format approved by ARSENAL Foundation) describing the type of Service, Term (defined below), Fees and pricing, and any other terms and conditions stated therein. Orders shall be effective only if signed or electronically authorized by You and ARSENAL Foundation.
1.11 “Records” means Contact Records or Company Records, as applicable.
1.12 “Seat” means a license for a single individual to use certain Subscription Services if and as specified in the applicable Order(s).
1.13 “Services” means Subscription Services, APIs, Professional Services and/or any other products or services identified in the applicable Order(s).
1.14 “Subscription Services” means the proprietary online, offline and/or mobile applications provided by ARSENAL Foundation via the Site or other internet-enabled mechanism as well as all Content, data, information and any other products or services that are made available to You by ARSENAL Foundation by any of the foregoing provisioning methods or other delivery methods for the recurring timeframe(s) specified in the applicable Order. For clarity, Subscription Services do not include any one-time Services.
1.15 “Subscription Term” means the Term for the Subscription Services as specified in the Order(s).
1.16 “Term” means the Subscription Term and/or any other timeframe or term identified in the Order(s), including those related to any one-time Services. For clarity, some Orders may have more than one Term for different line-itemed purchases, and each Term shall govern the applicable line-item specified in such Order.
1.17 “UoM” (if indicated on an Order) means the unit of measure (e.g., Seats, Records, etc) being licensed for the particular Service identified on the applicable Order(s).
2.1 Limited License. Subject to Your timely payment of all Fees and Your full compliance with the Agreement (including without limitation the use restrictions stated in Section 6 below), You may access and use the Services and Content obtained therefrom during the Term solely for Your own internal business purposes (and not for the use or benefit of any third party) subject to the quantities and any additional terms or conditions specified in the applicable Order(s). The Services are licensed, not sold.
2.2 Seats. Seats will be assigned to named individual users authorized by You to access and use the Subscription Services and such individuals will be assigned user identifications and passwords. You shall assign Seats to users who are Your employees, consultants, contractors and agents provided that You are responsible for their usage and may reassign Seats as required by your reasonable business requirements (e.g. reassigning seats of terminated employees). The maximum number of Seats you may use and assign is specified in the Order and the number of Seats licensed under an Order may not be decreased during the Subscription Term. Seats cannot be shared, but an individual Seat can be transferred from one of your employees to another so long as not more than one individual has access to such Seat.
2.3 Updates. ARSENAL Foundation may make modifications, including periodic upgrades or enhancements, and other changes to the Subscription Services at any time with or without notice to You. ARSENAL Foundation reserves the right to discontinue offering the Services to You at the end of the Term stated in the applicable Order(s).
2.4 Third Party Services. Certain Subscription Services may enable You to elect (at Your sole discretion) to link to third party sites or applications not provided by ARSENAL Foundation such as Your CRMs, marketing tools and/or social media sites (individually and collectively, “Third Party Services”). ARSENAL Foundation does not endorse, warrant, or control such Third Party Services and is not responsible for the legality, quality, accuracy, integrity, fitness, reliability, or availability of any Third Party Services. Your use of Third Party Services is solely between You and such Third Party Services provider(s). If You enable Third Party Services for use with the Services or access the Services from or in connection with any Third Party Services, You hereby consent for ARSENAL Foundation to access and use basic account information solely as required for provisioning of such Third Party Services with the Subscription Services, including providing Customer Data to such Third Party Services. If You do not want to permit the exchange of Customer Data or account information with Third Party Services, You may prohibit or restrict such access by not enabling such Third Party Services for use with the Services.
2.6 Corrections to Content. To the extent You elect (in Your sole discretion) to provide ARSENAL Foundation with corrections to Content via the Site or otherwise, ARSENAL Foundation shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any such corrections into the Content.
Professional Services are subject to the term stated in the applicable Order and will not automatically renew unless otherwise indicated in the Order. The Subscription Services (which may include Seats, volume-based products such as Records, and/or non-volume based recurring Services during the Subscription Term, each as identified in the applicable Order) will be subject to the term specified in the applicable Order (the “Subscription Term”) and will automatically renew for additional Subscription Terms of the same duration unless either party provides the other party with written or email notice (any such email notice to You shall be sent to the email address identified in the applicable Order; You shall send any such email notice to ARSENAL Foundation at admin@ARSENALFoundation.com) of its intention not to renew at least thirty (30) calendar days prior to expiration of the then-current Subscription Term.
4.1 You shall timely pay to ARSENAL Foundation all applicable Fees for the Services. Fees are due and payable as of the Effective Date (and any applicable Anniversary Date thereof, as defined below) unless otherwise indicated in the applicable Order(s). Payments must be made in U.S. dollars unless another currency is expressly identified in the Order. If You provide credit card information to ARSENAL Foundation, You hereby authorize ARSENAL Foundation to transmit customer identifying information in order to bill such credit card at the time You order any Services as set forth in the applicable Order(s) and at the time of any renewal for the amount charged for any Anniversary Dates (defined below) and renewal Terms. Payments other than by credit card will be invoiced by ARSENAL Foundation by any method include electronically or by email, and shall be due and payable on the Effective Date of the Order and each contract year anniversary (each, an “Anniversary Date”) unless otherwise expressly specified in the applicable Order; however, unless otherwise stated in the Order, late penalties and interest will not be imposed if payment is received within thirty (30) days from the Effective Date and any applicable Anniversary Date. Fees are exclusive of all taxes, levies, and duties imposed by taxing authorities, and You are responsible for all such taxes, excluding taxes based solely on ARSENAL Foundation’s income. All Fees paid are non-refundable and payments may not be offset. Use in excess of the quantity of pre-purchased UoM (e.g., Records) specified in an Order will be subject to overages invoiced monthly in arrears at ARSENAL Foundation’s standard rates in place at the time of use (provided that if other rates are specified in the Order, then such overage rates will instead apply). Any unused portions of volume-based purchases (e.g. Records bundles) shall expire at the end of each Contract Year and shall not roll over into subsequent contract years. ARSENAL Foundation may automatically increase by seven percent (7%) the Fees for the Subscription Services identified in the Order(s) for the duration of each renewal of a Subscription Term. Except as otherwise expressly stated in this Section 4.1, if Your account is past due, this shall be a material breach, and ARSENAL Foundation reserves the right to suspend the Services without liability until such amounts are paid in full, in addition to any of its other rights or remedies including termination and recovery of costs and expenses (including attorneys’ fees) in connection with collection efforts. Any billing disputes must be reported to ARSENAL Foundation in writing or by email to admin@ARSENALFoundation.com within 30 days of the date of the invoice or will be deemed waived.
4.2 Additional Services. If and when you purchase additional Services after Your initial Order through a supplemental Order, You will be invoiced for such additional Services, which may (if made mid-term) be pro-rated for the balance of the then-current contract year and, unless otherwise expressly stated in any such supplemental Order, such term will run alongside the full current term of Your existing Order(s) and will renew, alongside with your existing Order(s), for the full subsequent renewal periods consistent with such existing Order(s).
You are responsible for all activity occurring under Your user accounts. You will: (a) maintain the accuracy, completeness, and timeliness (within 30 days of any change) of the information You provide in Your account registration and information You provide on Your users; (b) purchase a sufficient number of Seats for Your access and usage, e.g., assigning and using only one Seat per person (You shall not use or share a Seat among multiple users); and (c) notify ARSENAL Foundation promptly of any unauthorized use of any password or account or any other known or suspected breach of security. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for Your Use of the Services. The Services and Content may not be exported or re-exported directly or indirectly in violation of any applicable export laws or used for any purposes prohibited by law.
This Section 7 shall replace and supersede any nondisclosure or other confidentiality agreement(s) that may have previously been entered into by You and ARSENAL Foundation.
7.1 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, including the terms and conditions of the Agreement (including pricing and other terms reflected in the Orders), Customer Data, the Site, the Services, Content, pricing (including pricing and rate quotes), business and marketing plans, technology and technical information, product designs, and business processes. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, except with the Disclosing Party’s prior written permission.
7.2 The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party including; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; (d) is received from a third party without breach of any obligation owed to the Disclosing Party; nor shall the obligations of confidentiality apply to any information that You, or Your users post on third party websites or applications including those accessed through or in connection with the Services. The obligation of non-disclosure shall not apply when the Receiving Party is required to disclose by applicable law, rule or regulation or required by any authorized government agency of competent jurisdiction or pursuant to federal or state judicial orders; provided, however, that the Receiving Party must first give the Disclosing Party prompt written notice of the requirement to disclose and provide reasonable assistance in the opposing or limiting of such disclosure and limit such disclosure to that portion of the information strictly required by such government agency or final judicial order.
8.1 As between ARSENAL Foundation and You, ARSENAL Foundation owns all worldwide right, title and interest in and to the Site, the Services and the Content, in any form, format, forum, medium, means, or method now known or hereafter developed, including all related intellectual property rights throughout the world, and any suggestions, ideas, enhancement requests, feedback, recommendations that may be provided by You or Your users relating to the Site, the Services and the Content. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Content or the Services. You agree to abide by all access and use restrictions contained in any Content made available through the Services.
8.2 As between ARSENAL Foundation and You, You own all rights, title and interest in and to all Customer Data in the form provided to ARSENAL Foundation; provided, however, that because there will in all cases be some overlap between Content provided by ARSENAL Foundation and Customer Data, the per-item ownership rights herein shall not apply to the extent consistent with such overlap.
9.3 Either party may terminate cost-free Services under an Order for convenience at any time.
10.1 Any Professional Services under an Order will be performed in a professional, workmanlike manner.
10.2 Clarifications. ARSENAL Foundation is not responsible for damages suffered by users for their actions taken in reliance on ARSENAL Foundation supplied Content, including losses for purchases or sales of any securities or investments or delays in removing, inaccurate, unlawful or otherwise objectionable information. Except as expressly provided, ARSENAL Foundation is not responsible or liable for the accuracy, completeness, reliability, or availability of the Services or Content. You assume sole responsibility and liability for Your use of the Services, including, without limitation, any Content that is accessed therein.
10.3 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1 ABOVE, THE SITE, SERVICES AND CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY ARSENAL FOUNDATION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT WILL ARSENAL FOUNDATION’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. ARSENAL FOUNDATION’S SUBSIDIARIES, LICENSORS, AND OTHER BUSINESS PARTNERS SHALL HAVE NO LIABILITY TO YOU UNLESS YOU HAVE AN EXPRESS WRITTEN AGREEMENT BY AND BETWEEN YOU AND SUCH THIRD PARTY (IN WHICH CASE, ARSENAL FOUNDATION HAS NO INVOLVEMENT IN, NOR LIABILITY UNDER, ANY SUCH OTHER AGREEMENT). IN NO EVENT SHALL ARSENAL FOUNDATION HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13.1 No Third Party Beneficiaries. The Agreement is intended for the sole and exclusive benefit of the Parties and are not intended to benefit any third party. If any provision is deemed unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that all other portions will otherwise remain in full force and effect and enforceable.
13.2 Assignment. The Agreement is assignable in whole or in part by You except with ARSENAL Foundation’s prior written consent. Any purported assignment in violation of the Agreement shall be null and void.
13.3 Agency, Compliance with Law. No agency, partnership, joint venture, or employment is created as a result of the Agreement. Each party must abide by all applicable laws and regulations in connection with the Services and the Agreement and any other use terms applicable as provided herein. All notices required hereunder will be in writing and are deemed given when received/delivered.
13.4 The Services are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which You use the Services, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. The Services are protected by copyright laws and international treaty provisions. You agree that the Services, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. You agree not to export or re-export the Services, directly or indirectly, to any countries that are subject to USA export restrictions. If the Services are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, You agree that the Services are delivered as a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically shall be identified as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Services and related documentation provided to U.S. Government end users is provisioned (a) only as a commercial end item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
13.6 Trademarks. All trademarks are the property of their owners. ARSENAL Foundation word and design marks are trademarks of ARSENAL ADVISORS, LLC. (collectively, the “ARSENAL Foundation Marks”). You agree not to remove any ARSENAL Foundation Marks or any copyright notices that are contained within and/or affixed to the Services (or any portion thereof). Except with respect to the foregoing, You agree not to display or use in any manner the ARSENAL Foundation Marks without ARSENAL ADVISORS prior written permission. ARSENAL Foundation shall be permitted to line-list You as a customer and use Your standard logo for ARSENAL Foundation’s promotional and marketing use during the Term.
Last Updated: December 10, 2020
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