This Access Agreement (the “Agreement” ) is entered into by and between We Are Arthur, Inc., a Delaware corporation ( “Provider” ) and the individual or entity now electronically assenting to these terms through account creation, reference from a Purchase Order (as defined herein) or otherwise ( “Client” ) (each a “Party” , collectively, the “Parties” ). This Agreement is made as of the date which Client electronically assents or otherwise enters into the Agreement (the “Effective Date” ).
- Subject to the terms and conditions of this Agreement, Provider grants to Client during the Term, a non-transferable, non-exclusive right, without right to sublicense, to access and use the Endear Platform (the “Platform” ) made available to the Client by Provider, as updated or revised by Provider from time to time. All rights not expressly granted herein are retained by Provider.
- Provider does not guarantee, represent or warrant that access to the Platform will be uninterrupted or error-free, and Provider does not guarantee that Client will be able to access or use all or any of the system features at all times. Provider may suspend the Platform, in whole or in part, at any time.
- Fees, if any, are due and payable as set forth below and in a purchase order for the access to the Platform (the “ Purchase Order ”) that sets forth, among other things, the Platform access scope, the length of the access, the fees associated therewith (the “ Fees ”), and certain additional terms applicable to the Platform. Fees and other charges, if any, do not include federal, local, foreign, sales, transaction, use or value added taxes (“ Taxes ”) now or hereafter levied, all of which shall be Client’s responsibility. If Provider is required to pay Taxes on Client’s behalf, Provider shall invoice Client for such Taxes, and Client shall reimburse Provider for such amounts in accordance with this Agreement.
- Provider will invoice or automatically charge Client for Fees, if any. Unless otherwise specified in a Purchase Order, Provider will invoice Client monthly or automatically charge Client, with invoice payment being no later than thirty (30) days after issuance by Provider. Late payment charges may be assessed on overdue amounts at the lesser of five percent (5%) per month, or the highest rate allowed by law.
- Except as otherwise specifically permitted in this Agreement, neither the Client nor any of its users may: (1) modify or create any derivative works of the Platform, including translation or localization; (2) access or copy the Platform except as provided in this Agreement or elsewhere in writing by Provider; (3) sublicense or permit use of the Platform by any persons not associated with the Client and authorized as a user; (4) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Platform; (5) redistribute, encumber, publicly display, sell, rent, lease, sublicense, use the Platform in a timesharing or service bureau arrangement, or otherwise transfer rights to the Platform; or (6) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform.
- Notwithstanding the foregoing, Client shall be permitted to use reports, documents or other materials generated by Client through the Platform outside of the Platform, for Provider’s general business purposes.
- Neither Client nor its users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Platform any information or materials provided or submitted by Client or any of its users in the course of utilizing the Platform ( “Client Content” ) that: (1) is unlawful or encourages another to engage in anything unlawful; (2) contains a virus or any other similar programs or software which may damage the operation of Provider’s or another’s system; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (4) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Client understands and agrees that Provider reserves the right to edit, modify or remove content being hosted by Provider, for reasons including but not limited to violations of the above standards.
- Client and its users may not use the Platform in any way that (i) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or (ii) would be in violation of applicable law or cause damage or harm to Provider or any third-parties.
- Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Platform. Without limiting the foregoing, Client warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Client shall not use, export or re-export the Platform in violation of any U.S. export embargo, prohibition or restriction.
- Provider retains all right, title and interest in and to the Platform and any and all updates, upgrades or new modules now or hereafter included or made available to Client through the Platform. Title to and ownership of any modifications, suggestions, feedback or customizations of the Platform shall be held exclusively by Provider, and to the extent necessary, is hereby assigned by Client to Provider. Client agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Provider set forth in this Section.
- All Client Content is and shall remain the property of Client or the applicable third party; however, in order to use the functionality of the Platform, Client may provide Client Content to Provider through the Platform or otherwise, and Provider requires a license to such Client Content in order for the Platform to perform its tasks. Client therefore grants to Provider, during the Term, and thereafter if Client shares its Client Content with third-parties on the Platform, a nonexclusive, worldwide, royalty-free license to use, reproduce, modify, transmit, display, prepare derivative works from and otherwise utilize the Client Content in and through the Platform as instructed by Client and to facilitate Client’s instructions.
It is anticipated that the Parties may exchange certain proprietary information necessary to carry out obligations set forth hereunder, which may be collected during the use of the Platform, and which may be otherwise discussed between the Parties. In order for each Party to access, use and track the other Party’s proprietary information, the Parties agree as follows:
- Definition. “Confidential Information” as used in this Agreement means any and all information disclosed by a Party (each a “Discloser” ) to the other Party (each a “Recipient” ) relating to the Platform or each others’ business. Notwithstanding the foregoing, as between Provider and Client, the Platform is deemed to be Provider’s Confidential Information. Confidential Information shall not include information that: (i) was generally known or available at the time it was disclosed or has subsequently become generally known or available through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) is independently developed by Recipient without use of Discloser’s Confidential Information as documented by competent records; or (iv) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.
- Use Limitations; Nondisclosure Obligation; Duty of Care. Each Party agrees as a Recipient: (i) not to use Confidential Information of the other Party for any purpose except in furtherance of its rights or obligations hereunder; (ii) that it shall disclose the other Party’s Confidential Information only to its employees, advisors, contractors or consultants who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of the other Party, to be bound by terms and conditions at least as restrictive as those of this Section, provided that any act or omission by such a third party that would be a violation of this Agreement if committed by a Party hereto shall be deemed a breach by the Party that provided the information to such third party; and (iii) to treat all Confidential Information of the other Party with the same degree of care as it accords its own confidential information of a similar nature, but in no case less than with a reasonable degree of care. A breach of these obligations may result in irreparable and continuing damage to the Discloser for which there may be no adequate remedy at law, and, in the event thereof, Discloser shall be entitled to seek injunctive or other equitable relief as may be appropriate.
- Required Disclosures. Recipient may disclose Confidential Information of the other Party as and to the extent required by a valid order of a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either Party under this Agreement. For disclosures required by law, a Party shall first, where permitted by law, notify the other Party of the disclosure and grant such other Party a reasonable opportunity to contest or otherwise limit such disclosure.
- Data Collection. Client agrees that Provider may, but is not required to, monitor Client’s and its users’ use of the Platform and collect and use data and related information regarding such use which may be gathered periodically to ensure compliance with this Agreement, to facilitate the provision of updates, product support and other services (if any), and for Provider’s general business internal purposes. Subject to the foregoing use exceptions, other than in aggregate, non-identifiable form, all such data shall be considered Client’s Confidential Information. Information included in an aggregate, non-identifiable data set (“ Anonymous Data ”) shall not be considered Client’s Confidential Information, and Provider may use such Anonymous Data for Provider’s general business purposes.
Client will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising from any third party claim, suit, action, or proceeding (i) arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that Client Content or other data, information or instructions supplied by Client infringes or caused Provider to infringe on the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) to the extent arising out of claims relating to Client or its users’ use of the Platform in violation of the law, or (iii) to the extent arising out of or relating to an actual or alleged breach of this Agreement by Client.
7. DISCLAIMER; LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PLATFORM AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS AND/OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY RELATED TO INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED \$1,000 IN THE AGGREGATE.
8. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and remain in force for the length of time identified in the Purchase Order, unless terminated early, which either Party may do at any time upon notice to the other (the “Term” ). Either Party may terminate by providing notice to the other Party. In the event this Agreement is terminated for any reason, all rights to access the Platform shall immediately cease. Sections 2-8 will survive any termination or expiration of this Agreement.
This Agreement constitutes the Parties’ entire understanding and agreement with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations and understandings between the Parties regarding the subject matter hereof. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the Parties hereto. This Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the Party to be bound. This Agreement shall be governed by the laws of the State of New York without application of its conflicts of laws principles. In any proceeding relating hereto, the Parties agree and hereby submit to the exclusive jurisdiction of the state and federal courts of New York. Client may not assign this Agreement, and any assignments shall be null and void. Provider may assign or transfer this Agreement at any time.
10. ADDITIONAL LIMITS ON USE OF YOUR GOOGLE USER DATA.
Notwithstanding anything elsein this Agreement, if you provide the App access to the following types of your Google data, the App's use of that data will be subject to these additional restrictions:
- The App will only use access to read, write, modify or control Gmail message bodies (including attachments), metadata, headers, and settings to provide a web email client that allows users to compose, send, read,and process emails and will not transfer this Gmail data to others unless doing so is necessary to provide and improve these features, comply with applicable law, or as part of a merger, acquisition, or sale of assets.
- The App will not use this Gmail data for serving advertisements.
- The App will not allow humans to read this data unless we have your affirmative agreement for specific messages, doing so is necessary for security purposes such as investigating abuse, to comply with applicable law, or for the App's internal operations and even then only when the data have been aggregated and anonymized.