Effective: December 12, 2019.
Last update: February 5, 2021.
This End User License Agreement (“EULA”) between You and Arcion Labs Inc. (“Us”) covers Your use of the Software and Cloud Services (“Arcion Labs Technology”). This document also incorporates any Product Specific Terms that may apply to the Arcion Labs Technology You acquire. Definitions of capitalized terms are in Section 14 (Definitions).
You agree to be bound by the terms of this EULA through (a) Your download, installation, or use of the Arcion Labs Technology; or (b) Your express agreement to this EULA.
If You do not have authority to enter into this EULA or You do not agree with its terms, do not use the Arcion Labs Technology.
2.1. License and Right to Use. We hereby grants You: (a) non-exclusive, non-transferable, right and license to use Arcion.io Technology and its Production and Non-Production Use, as defined below, during the Usage Term, and (b) the non-exclusive, non-sublicensable right to use, test, demonstrate, and operate Arcion Labs Technology for Non-Production Use during the Usage Term and as set out in Your Entitlement and this EULA (collectively, the “Usage Rights”).
“Production Use” means operational use of the Software’s change data capture functionality on a regular or recurring basis.
“Non-Production Use” means regular or recurring use of the Software’s data loading functionality, and internal testing.
2.2. Use by Third Parties. You may permit Authorized Third Parties to exercise the Usage Rights on Your behalf, provided that You are responsible for (a) ensuring that such Authorized Third Parties comply with this EULA and (b) any breach of this EULA by such Authorized Third Parties.
2.3. Beta and Trial Use. If We grant You Usage Rights in the applicable Arcion Labs Technology on a trial, evaluation, beta or other free-of-charge basis (“Evaluation Software and Services”), You may only use the Evaluation Software and Services on a temporary basis for the period limited by the license key or specified by Us in writing. If there is no period identified, such use is limited to 30 days after the Evaluation Software and Services are made available to You. If You fail to stop using and/or return the Evaluation Software and Services or the equipment on which it is authorized for use by the end of the trial period, You may be invoiced for its list price and agree to pay such invoice. We, in our discretion, may stop providing the Evaluation Software and Services at any time, at which point You will no longer have access to any related data, information, and files and must immediately cease using the Arcion Labs Technology. The Evaluation Software and Services may not have been subject to Our usual testing and quality assurance processes and may contain bugs, errors, or other issues. Except where agreed to in writing by Us, You will not put Evaluation Software and Services into production use. We provide Evaluation Software and Services “AS-IS” without any express or implied warranty or indemnity for any problems or issues, and We will not have any liability relating to Your use of the Evaluation Software and Services.
2.4. Upgrades or Additional Copies of Software. You may only use Upgrades or additional copies of the Software beyond Your license Entitlement if You have (a) acquired such rights under a support agreement covering the applicable Software; or (b) You have purchased the right to use Upgrades or additional copies separately.
2.5. Interoperability of Software. If required by law and upon Your request, We will provide You with the information needed to achieve interoperability between the Software and another independently created program, provided You agree to any additional terms reasonably required by Us. You will treat such information as Confidential Information.
2.6. Subscription Renewal. Usage Rights in Arcion Labs Technology acquired on a subscription basis will automatically renew for the renewal period indicated on the order You or Your Arcion Labs Partner placed with Us (“Renewal Term”) unless: (a) You notify Your Approved Source in writing at least 45 days before the end of Your then-current Usage Term of Your intention not to renew; or (b) You or Your Arcion Labs Partner elect not to auto-renew at the time of the initial order placed with Us. Your Approved Source will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You or Your Arcion Labs Partner promptly notify Us in writing, before the renewal date, that You do not accept the fee changes. In that case, Your subscription will terminate at the end of the current Usage Term.
3.1. Arcion Labs Technology Generally. Unless expressly agreed by Us, You may not, directly or indirectly: (a) transfer, sell, sublicense, monetize or make the functionality of any Arcion Labs Technology available to any third party; (b) use the Software on equipment not authorized by Us, or use Software that is licensed for a specific device on a different device (c) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks; (d) reverse engineer, decompile, decrypt, disassemble, modify, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Arcion Labs Technology, or make derivative works of the Arcion Labs Technology (except to the extent expressly permitted by Us); or (e) use Our Content other than as part of Your permitted use of the Arcion Labs Technology.
3.2. Cloud Services. You will not intentionally (a) interfere with other customers’ access to, or use of, the Cloud Service, or with its security; (b) facilitate the attack or disruption of the Cloud Service, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots); (c) cause an unusual spike or increase in Your use of the Cloud Service that negatively impacts the Cloud Service’s operation; or (d) submit any information that is not contemplated in the applicable Documentation.
3.3. Evolving Arcion Labs Technology. We may: (a) enhance or refine a Cloud Service, although in doing so, we will not materially reduce the core functionality of that Cloud Service, except as contemplated in this Section; and (b) perform scheduled maintenance of the infrastructure and software used to provide a Cloud Service, during which time You may experience some disruption to that Cloud Service. Whenever reasonably practicable, We will provide You with advance notice of such maintenance. You acknowledge that, from time to time, We may need to perform emergency maintenance without providing You advance notice, during which time We may temporarily suspend Your access to, and use of, the Cloud Service.
3.4. Equipment And Protecting Account Access. You are responsible for obtaining and maintaining any equipment and ancillary product needed to connect to, access or otherwise use the Arcion Labs Technology, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are also responsible for maintaining the security of the Equipment, Your account, passwords (including but not limited to administrative and user passwords) and files, and for all authorized uses of Your account or the Equipment. You will keep all account information up to date, use reasonable means to protect Your account information, passwords and other login credentials, and promptly notify Us of any known or suspected unauthorized use of or access to Your account.
3.6. Open Source Software. Open source software not owned by Us is subject to separate license terms. The applicable open source software licences will not materially or adversely affect Your ability to exercise Usage Rights in applicable Arcion Labs Technology.
To the extent permitted by law, orders for the Arcion Labs Technology are non-cancellable unless expressly permitted by the terms of Your Agreement or Sales Order. Fees for Your use of Arcion.io Technology are set out in Your purchase terms with Your Approved Source. If You use Arcion Labs Technology beyond Your Entitlement (“Overage”), the Approved Source may invoice You, and You agree to pay, for such Overage.
If You believe that We have billed You incorrectly, You must contact Us after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Our customer support department. You shall be responsible for all taxes associated with product other than U.S. taxes based on Our net income.
5.1. Confidentiality. Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.
5.2. How We Use Data. Arcion Labs will access, process and use data in connection with Your use of the Arcion Labs Technology in accordance with applicable privacy and data protection laws.
5.3. Notice and Consent. To the extent Your use of the Our Technology requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the Our Technology.
Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights. You retain any ownership of Your content and We retains ownership of the Arcion Labs Technology and Arcion Labs Content. We may use any feedback You provide in connection with Your use of the Arcion Labs Technology as part of its business operations.
7.1. Indemnification by Us. Subject to the limitations in this Section 7, we will (a) defend and indemnify You against any third-party claim alleging that the Products infringe or misappropriate a third-party intellectual property right.
7.2. Exclusion. We have no obligation to indemnify You and accept no responsibility or liability for any third party infringement claims arising out of: (a) any use of the Products in a manner that is not permitted under this Agreement or the applicable Documentation; (b) any modification of the Products by anyone other than Us, except a third party acting on Our behalf; (c) the combination or use of the Products, as applicable, with any other product, service, software, data, content or method; (d) Your continued use of Products that are no longer supported by Us; or (e) any failure by You to implement Updates or Upgrades provided under Support (“Excluded Claims”).
7.3. Indemnification Claims. If an infringement claim is made or appears likely to be made, We may, at our own expense and discretion, do any of the following: (a) modify the Products so that it is no longer infringing without substantially limiting its functionality; (b) obtain a license for you to continue to use the Products; or (c) terminate this Agreement.
7.4. Indemnification by You. You will defend and indemnify Us against any claim brought against Us by a third party arising out of or relating to any Excluded Claim or Your Content including any third-party claim alleging that any of Your Content infringes or misappropriates that third-party intellectual property or violates Your obligations to any third party and You agree to pay any settlement amount, or the damages and losses finally awarded against Us by a court of competent jurisdiction as a result of the claim.
7.5. Process. Each party’s defense and indemnity obligations in this Section 7 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any admission of wrong doing or acceptance of a material obligation by the other party without the prior written consent of the other party.
7.6. Entire liability and remedies. The remedies in this Section 7 represent Our entire liability and obligation and Your sole and exclusive remedy with respect to third-party intellectual property rights infringement claims related to the Products.
8.1. Performance. We warrant that: (a) for a period of 90 days from the Delivery Date or longer as stated in Documentation, the Software substantially complies with the Documentation; and (b) during the Usage Term, it provides the Cloud Services with commercially reasonable skill and care in accordance with the Documentation and Product Specific Terms.
8.2. Malicious Code. We will use commercially reasonable efforts to deliver the Arcion Labs Technology free of Malicious Code.
8.3. Qualifications. Sections 8.1 and 8.2 do not apply if the Arcion Labs Technology: (a) has been altered, except by Us or Our authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or Our instructions; (c) is acquired on a no charge, beta or evaluation basis; (d) is not a Arcion Labs-branded product or service; or (e) has not been provided by an Approved Source. Upon Your prompt written notification to the Approved Source during the warranty period of Our breach of this Section 8, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at Our option, either (i) repair or replacement of the applicable Arcion Labs Technology or (ii) a refund of the (a) license or subscription fees paid or due for the non-conforming Software, or (b) the fees paid for the period in which the Cloud Service did not comply, excluding any amounts paid under a service level agreement/objective, if applicable.
Where We provide a refund of license fees paid for Software, You must return or destroy all copies of the applicable Software. Except as expressly stated in this Section, to the extent allowed by applicable law, We expressly disclaim all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that Our Technology will be secure, uninterrupted or error free.
9.1. Liability Exclusions. Regardless of the basis of the claim or theory of liability, neither You nor Us will be liable for: (a) any special, indirect, incidental, consequential, or punitive damages, (b) damages arising from the loss of use, loss or corruption of data, lost profits, lost revenue, business interruption or cost of procuring substitute Products, or (c) unavailability of the Cloud Services.
9.2. Damages Cap. Neither Your nor Our aggregate liability shall exceed the greater of five hundred thousand United States dollars (US$ 500,000) or the amount received by Us for the applicable Products in the twelve (12) months prior to the event giving rise to this liability.
9.3. Exceptions. Sections 9.1 and 9.2 do not apply to usage in excess of an Entitlement, a breach of our intellectual property rights, an indemnification claim under Section 8, a breach of the confidentiality obligations set forth in Section 5, in case of gross negligence, willful misconduct, fraud, personal injury, or to any liability pursuant to an applicable legislation that does not permit to limit or exclude any liability.
10.1. Suspension. We may immediately suspend Your Usage Rights if You breach Sections 2.1 (License and Right to Use), 3.1 (Arcion Labs Technology Generally), 3.2 (Cloud Services) or 11.3 (Export).
10.2. Termination. If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. We may immediately terminate this EULA if You breach Sections 2.1 (License and Right to Use), 3.1 (Arcion Labs Technology Generally), 3.2 (Cloud Services) or 11.3 (Export). Upon termination of the EULA, You must stop using the Arcion Labs Technology and destroy any copies of Software and Confidential Information within Your control. If this EULA is terminated due to Our material breach, We will refund You or Your Approved Source, the prorated portion of fees You have prepaid for the Usage Rights beyond the date of termination. Upon Our termination of this EULA for Your material breach, You will pay Us or the Approved Source any unpaid fees through to the end of the then-current Usage Term. If You continue to use or access any Arcion Labs Technology after termination, We or the Approved Source may invoice You, and You agree to pay, for such continued use.
11.1. Compliance with Documentation. You agree that You will comply with all instructions and requirements in any Product specification sheets, user guides, security best practices and policies, and other documentation that We provide or make available to You in connection with the use of the Products.
11.2. Compliance with Anti-Corruption Laws. We and You shall comply with all applicable laws and regulations including but not limited to those relating to anti-corruption or anti-bribery e.g. the U.S. Foreign Corrupt Practices Act, as amended, the U.K. Bribery Act and legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
11.3. Export Control. The Products are subject to export restriction in the U.S. and other jurisdictions. You are responsible to fully comply with all applicable export laws and regulations that apply to the download, installation and use of the Products in Your jurisdiction. You represent and warrant that You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
11.4. US Government Restrictions. You acknowledge that the Products were developed entirely at private expense and no part of the Products were first produced in the context of a government contract. The Products are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Products. If You are using the Products on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, You will immediately discontinue Your use of the Products. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
The terms of the agreement between You and a Partner or Authorized Source for the procurement of the Arcion Labs Products applies solely between You and that Partner or Authorized Source.
13.1. Survival. Sections 4, 5, 6, 8, 9, 10, 11 and 12 survive termination or expiration of this EULA.
13.2. Third Party Beneficiaries. This EULA does not grant any right or cause of action to any third party.
13.3. Assignment and Subcontracting. Except as set out below, neither party may assign or novate this EULA in whole or in part without the other party’s express written consent. We may (a) by written notice to You, assign or novate this EULA in whole or in part to an Affiliate of Us, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Arcion Labs Technology to third parties, provided that such subcontract does not relieve Us of any of its obligations under this EULA.
13.4. U.S. Government End Users. The Software, Cloud Services and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFARS 227.7202. All U.S. Government end users acquire the Software, Cloud Services and Documentation with only those rights set forth in this EULA. Any provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
13.5. Arcion Labs Partner Transactions. If You purchase Arcion Labs Technology from Our Partner, the terms of this EULA apply to Your use of Our Technology and prevail over any inconsistent provisions in Your agreement with the Arcion Labs Partner.
13.6. Modifications to the EULA. We may change this EULA or any of its components by updating this EULA on Arcion Labs. Changes to the EULA apply to any Entitlements acquired or renewed after the date of modification.
13.7. Compliance with Laws. Each party will comply with all laws and regulations applicable to their respective obligations under this EULA. We may restrict the availability of the Arcion Labs Technology in any particular location or modify or discontinue features to comply with applicable laws and regulations.
If You use the Arcion Labs Technology in a location with local laws requiring a designated entity to be responsible for collection of data about individual end users and transfer of data outside of that jurisdiction (e.g. Russia and China), You acknowledge that You are the entity responsible for complying with such laws.
13.8. Governing Law and Venue. This EULA, and any disputes arising from it, will be governed exclusively by the State of California, United States of America. The Superior Court of California, County of Santa Clara and Federal Courts of the Northern District of California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the EULA or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Regardless of the governing law, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of Our intellectual property or proprietary rights.
If You are a United States public sector agency or government institution located in the United States, the laws of the primary jurisdiction in which You are located will govern the EULA and any disputes arising from it. For U.S. Federal Government customers, this EULA will be controlled and construed under the laws of the United States of America.
13.9. Notice. Any notice delivered by Us to You under this EULA will be delivered via email, regular mail or postings on Arcion Labs. Notices to Us should be sent to Arcion Labs Inc, Legal Counsel, 16 N. San Mateo Dr., San Mateo, CA 94401 unless this EULA, applicable Product Specific Terms or an order specifically allows other means of notice.
13.10. Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.
13.11. NoWaiver. Failure by either party to enforce any right under this EULA will not waive that right.
13.12. Severability. If any portion of this EULA is not enforceable, it will not affect any other terms.
13.13. Entire agreement. This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).
13.14. Translations. We may provide local language translations of this EULA in some locations. You agree that those translations are provided for informational purposes only and if there is any inconsistency, the English version of this EULA will prevail.
13.15. Order of Precedence. If there is any conflict between this EULA and any Product Specific Terms expressly referenced in this EULA, the order of precedence is: (a) such Product Specific Terms; (b) this EULA (excluding the Product Specific Terms and any Arcion Labs policies); then (c) any applicable Arcion Labs policy expressly referenced in this EULA.
“Affiliate” means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).
“Approved Source” means Arcion Labs or Arcion Labs Partner.
“Authorized Third Parties” means Your Users, Your Affiliates, Your third-party service providers, and each of their respective Users permitted to access and use the Arcion Labs Technology on Your behalf as part of Your Entitlement.
“Arcion Labs” “we” “our” or “us” means Arcion Labs, Inc. or its applicable Affiliate(s).
“Arcion Labs Content” means any (a) content or data provided by Arcion Labs to You as part of Your use of the Arcion Labs Technology and (b) content or data that the Arcion Labs Technology generates or derives in connection with Your use.
“Arcion Labs Partner” means a Arcion Labs authorized reseller, distributor or systems integrator authorized by Arcion Labs to sell Arcion Labs Technology.
“Cloud Service” means the Arcion Labs hosted software-as-a-service offering or other Arcion Labs cloud-enabled feature described in the applicable Product Specific Terms. Cloud Service includes applicable Documentation and may also include Software.
“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.
“Delivery Date” means the date agreed in Your Entitlement, or where no date is agreed: (a) where Usage Rights in Software or Cloud Services are granted separately: (i) for Software, the earlier of the date Software is made available for download or installation, or the date that Arcion Labs ships the tangible media containing the Software, and (ii) for Cloud Services, the date on which the Cloud Service is made available for Your use; or (b) where Usage Rights in Software and Cloud Services are granted together, the earlier of the date Software is made available for download, or the date on which the Cloud Service is made available for Your use.
“Documentation” means the technical specifications and usage materials officially published by Arcion Labs specifying the functionalities and capabilities of the applicable Arcion Labs Technology.
“Entitlement” means the specific metrics, duration, and quantity of Arcion Labs Technology that You commit to acquire from an Approved Source through individual acquisitions or Your participation in a Arcion Labs buying program.
“Malicious Code” means code that is designed or intended to disable or impede the normal operation of, or provide unauthorizedaccess to, networks, systems, Software or Cloud Services other than as intended by the Arcion Labs Technology (for example, as part of some of Arcion Labs’ security products).
“Product Specific Terms” means additional product related terms applicable to the Arcion Labs Technology You acquire.
“Software” means the Arcion Labs computer programs including Upgrades, firmware and applicable Documentation.
“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.
“Usage Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable Arcion Labs Technology.
“User” means the individuals (including contractors or employees) permitted to access and use the Arcion Labs Technology on Your behalf as part of Your Entitlement.
“You” means the individual or legal entity purchasing the Arcion Labs Technology.