means, in connection with an Arcion Cloud Deployment, the volume of Customer Data that actually originates from Source Database(s), and is replicated and migrated to Target Database(s) during each month of the Subscription Term;
means this Master Subscription Agreement, together with any Order Form and/or Statement of Work that references this Agreement, and any other terms referenced herein or therein;
means, in connection with an Arcion Cloud Deployment and as set forth in an Order Form, the volume of Customer Data the Parties anticipate will originate from Source Database(s), and be replicated and migrated to Target Database(s) during each year of the Subscription Term;
means the software-as-a-service offering of the Arcion Software that Arcion makes available to Customer in the Third Party Cloud Provider’s cloud-based infrastructure;
means the Arcion data replication solution that Arcion makes available to Customer pursuant to an Order Form, either in a Customer Hosted Deployment or in a Arcion Cloud Deployment;
means any electronic data or information of Customer that is ingested into the Arcion Software in accordance with this Agreement;
means the Arcion Software installed by or for Customer at either Customer’s premises or in a Customer-controlled server within a third-party hosting facility mutually agreed to by the Parties;
means privacy, data security and data protection laws and regulations applicable to Personal Data;
means the product and technical documentation, user guides and manuals made available by Arcion to Customer for the Arcion Software;
means a single configuration of the Arcion Software for use by the Customer;
means any information that identifies an individual, or is reasonably capable of being identified with an individual when combined with other information (e.g., name, social security number, account number, address), including any information that constitutes “personal data”, “personal information”, “protected health information” or an equivalent with the meaning of a Data Protection Law;
means Support and Maintenance or any professional consulting services that Arcion may perform in accordance with an Order Form and/or any Statement of Work attached thereto, including without limitation, any services related to the implementation or deployment of the Arcion Software or any training;
means the then-current service level agreement applicable to an Arcion Cloud Deployment of the Arcion Software, described at: [____________];
means each Customer source database from which Customer Data may be ingested into the Arcion Software, as identified in an Order Form or Statement of Work;
means the statement of work attached to an Order Form pursuant to which Arcion performs certain Professional Services;
has the meaning set forth in Section 9.1, unless otherwise provided in an Order Form;
means the then-current technical support and maintenance provided by Arcion to Customer in connection with the Arcion Software described at: [__________];
means each Customer target database into which Customer Data may be migrated after ingestion into the Arcion Software, as identified in an Order Form or Statement of Work; and
means, for Customer Hosted Deployments only, the hardware, software, VM/Arcion Host Access, Connectivity requirements that Customer is required to maintain, all of which are described in an Order Form or Statement of Work.
means the third party provider designated by Arcion that supplies the cloud-based infrastructure in which the Arcion Cloud Deployment of the Arcion Software will reside and operate.
During the Subscription Term, Arcion will provide the Arcion Software to Customer by:
As applicable, Arcion hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable right and license to access and use the Arcion Software and Documentation solely for the replication and migration of Customer Data from any designated Source Database(s) to any designated Target Database(s) for Customer’s own internal business purposes.
With respect to a Customer Hosted Deployment only, such license grant includes a license to install the Arcion Software solely at Customer’s premises or in a mutually agreed Customer-controlled server within a third-party hosting facility.
Customer shall not:
Arcion and/or its licensors retain all right, title and interest, including all related intellectual property rights, in and to the Arcion Software, Documentation, its Confidential Information, any technology developed from any Professional Services, and all derivative works, improvements, modifications thereto or thereof, by whomever made. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer retains all right, title and interest in and to all Customer Data. Customer represents and warrants that:
If Customer exports Customer Data from a jurisdiction outside the United States, Customer will ensure that it has all legal rights to do so (including, without limitation, in compliance with all applicable Data Protection Laws).
Customer hereby grants to Arcion a non-exclusive, worldwide, unrestricted and irrevocable right and license to use the Customer Data to the extent necessary to provide the Arcion Software (and related Professional Services) and perform its obligations in accordance with this Agreement (including calculating benchmarks and performing analyses it may use internally or provide to Customer).
In the event that Customer provides Arcion with any suggestions, ideas, improvements or other feedback with respect to the Arcion Software or any Professional Services (“Feedback”), Customer grants Arcion a non-exclusive, perpetual, irrevocable, sub-licensable, transferable, royalty-free, fully paid-up worldwide right and license to use and commercially exploit the Feedback in any manner Arcion deems fit.
Unless otherwise provided in an Order Form, Customer shall pay all fees for the Arcion Software and Professional Services as set forth in below.
Except as set forth in the next sentence, Customer shall pay all fees within thirty (30) days of receipt of Arcion’s invoice. With respect to the Difference that becomes due and payable for Customer’s Actual Data Volume of the Arcion Cloud Deployment as contemplated in item (b) above, Customer shall pay such Difference immediately on receipt of the applicable invoice; and with respect to the payment of such Difference.
If Customer’s Actual Data Volume in any month exceeds Anticipated Data Volume in such month, Customer acknowledges and agrees that it will pay the Difference as described in this Section 4.1. If Customer’s Actual Data Volume in any month is less than the Anticipated Data Volume, Customer shall not be entitled to any refund or credit with respect to fees paid for Anticipated Data Volume.
Additionally, with respect to an Arcion Cloud Deployment, Customer acknowledges that the fees for Actual Data Volume due and payable take into account costs and expenses incurred by Arcion for hosting the Arcion Cloud Deployment with the Third Party Provider. In the event that the Third Party Cloud Provider increases its fees to Arcion for such hosting services, including its fees for data computation, storage or data transfer fees, Customer acknowledges and agrees that Arcion will increase its fees for Actual Data Volume to Customer proportionately.
With respect to the performance of any Professional Services, Customer will pay actual out-of-pocket expenses incurred in connection with Professional Services, if any, for reasonable travel and other incidental expenses that Arcion shall detail in its invoices in arrears.
Any late payment shall be subject to interest that accrues at a rate of the lower of one and one half per cent (1.5%) per month or the highest rate permitted by law, plus costs of collection. Except as otherwise provided in the Order Form or herein, all fees must be paid in United State Dollars, are non-cancelable and non-refundable. The Arcion Software and Professional Services are based on products and services purchased and not on actual usage or performance; provided, however, any Arcion Cloud Deployment of the Arcion Software is based on actual usage by Customer for any Actual Data Volume that exceeds Anticipated Data Volume.
No more than once annually during the term of this Agreement and any Order Form, Arcion may increase fees for the Arcion Software by the greater for (a) five per cent (5%) or (b) the percentage increase in the U.S. consumer price index during the prior twelve (12) months upon sixty (60) days prior written notice to Customer.
Any and all payments made by Customer in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall be responsible for and pay or reimburse Arcion for:
All amounts payable to Arcion under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
If Customer’s account is ten (10) days or more overdue for an Arcion Cloud Deployment, or if Arcion in good faith believes that Customer is engaging in unauthorized conduct in its use of an Arcion Cloud Deployment, then, in addition to any of its other rights or remedies, Arcion may suspend Customer’s access to the Arcion Cloud Deployment without liability to Customer until, as applicable, such amounts are paid in full or until Customer stops engaging in such unauthorized conduct to the satisfaction of Arcion.
If Customer’s account is thirty (30) days or more overdue for a Customer Hosted Deployment, or if Arcion in good faith believes that Customer is engaging in unauthorized conduct in its use of a Customer Hosted Deployment, then, in addition to any of its other rights or remedies, Arcion reserves the right to notify Customer thereof and instruct Customer to suspend use of the Customer Hosted Deployment immediately, without liability to Customer; and Customer will immediately cease use of the Customer Hosted Deployment, until, as applicable, such amounts are paid in full or until Customer stops engaging in such unauthorized conduct to the reasonable satisfaction of Arcion.
Any and all non-public, confidential and proprietary information, including, without limitation, code, inventions or know-how, or business, technical or financial information, furnished by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), that is either marked or designated as “confidential” or “proprietary”, or that should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed or the circumstances surrounding the disclosure, shall constitute the confidential property of the Disclosing Party (“Confidential Information”). Arcion Confidential Information shall include the terms of this Agreement, the Arcion Software, any Professional Services, the Documentation and any performance information (e.g., benchmarking) of the Arcion Software. Confidential Information does not include information that the Receiving Party can document:
The Receiving Party agrees:
The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, it accords its own Confidential Information.
The Receiving Party may disclose the Confidential Information of the Disclosing Party if it is required to do so pursuant to an order or requirement of a court, administrative agency or other governmental body; provided however, that the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party the possibility to seek a protective order or otherwise prevent or restrict such disclosure, and shall use reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party shall use reasonable efforts to disclose only that portion of the Confidential Information that it is legally required to be disclosed or is the subject of such waiver, and to ensure that all Confidential Information that is so disclosed shall be accorded confidential treatment.
The Receiving Party acknowledges that any misuse or unauthorized disclosure of Confidential Information of the Disclosing Party will cause substantial harm to the Disclosing Party for which damages alone may not be a sufficient remedy. Upon any such misuse or unauthorized disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to any other remedies it might have available at law.
Arcion warrants to Customer that:
Customer’s sole and exclusive remedy, and Arcion’s sole liability, for any breach of this warranty shall be for Arcion to correct the Arcion Software in accordance with Support and Maintenance or re-perform the Professional Services, as applicable, at Arcion’s expense. The limited warranty in this Section 6.1 shall not apply until Customer notifies Arcion in writing of a breach of this warranty. The limited warranty in this Section 6.1 shall not apply if the error or failure in performance was caused by misuse, unauthorized modifications, third-party hardware, software or services, Customer’s failure to comply with Technical Requirements, Customer Data or Force Majeure Event (as defined below).
EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 6, ARCION PROVIDES THE ARCION SOFTWARE AND PROFESSIONAL SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. ARCION AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. ARCION DOES NOT WARRANT THAT THE ARCION SOFTWARE OR THE PROFESSIONAL SERVICES ARE ERROR-FREE, THAT CUSTOMER WILL BE ABLE TO ACCESS OR USE THE ARCION SOFTWARE OR PROFESSIONAL SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE ARCION SOFTWARE OR PROFESSIONAL SERVICES (OR ANY PORTION THEREOF) WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY ARCION.
EXCLUDING A BREACH OF SECTIONS 2.1 (USE), 2.2 (RESTRICTIONS), 2.3 (RESPONSIBILITIES), 4 (PAYMENT TERMS), SECTION 5 (CONFIDENTIALITY), CUSTOMER’S BREACH OF SECTION 3.2 (CUSTOMER DATA) OR EITHER PARTY’S INDEMNITY OBLIGATION IN SECTION 8 (INDEMNIFICATION):
NOTWITHSTANDING SECTION 7(A), ARCION’S TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED ONE MILLION DOLLARS (US$ 1,000,000) FOR ANY DATA BREACH ARISING FROM ARCION’S FAILURE TO COMPLY WITH ITS OBLIGATIONS IN SECTION 2.4(B) (DATA SECURITY) THAT LEADS TO THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO, ANY CUSTOMER DATA.
THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANY CONTRARY TERM HEREIN, UNDER NO CIRCUMSTANCES WILL ARCION BE LIABLE OR RESPONSIBLE FOR THE COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS OR SERVICES.
Arcion (“Indemnifying Party”) shall defend, indemnify and hold harmless Customer (“Indemnified Party”) from and against any and all third party claims asserted against an Indemnified Party (and all resulting, to the extent payable to unaffiliated third parties, damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs) (“Losses”) arising out of the alleged infringement or misappropriation of a copyright, trade secret, trademark or United States patent by Arcion Software or Documentation. If any third party claim which Arcion is obligated to defend has occurred, or in Arcion’s determination is likely to occur, Arcion may, in its sole discretion and at its option and expense:
The foregoing indemnification obligation of Arcion shall not apply if such claim arises out of:
THIS SECTION 8.1 SETS FORTH ARCION’S SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.
Customer (“Indemnifying Party”) shall defend, indemnify and hold harmless Arcion (“Indemnified Party”) from and against any and all Losses arising out of:
The Indemnifying Party’s indemnification obligation is subject to the Indemnifying Party receiving:
This Agreement commences on the Effective Date and continues until terminated in accordance with this Section 9. Each Order Form will have an initial Subscription Term set forth therein (“Initial Subscription Term”). Upon expiry of such Initial Subscription Term, the Order Form will automatically renew for additional one (1) year periods (each, a “Renewal Subscription Term”; and collectively with the Initial Subscription Term, the “Subscription Term”), unless either Party provides written notice to the other Party of non-renewal at least sixty (60) days prior to the then-current Subscription Term.
Either Party may terminate this Agreement as follows:
Upon any termination of an Order Form or this Agreement,
If an Order Form or this Agreement is terminated due to Customer breach, Customer, as applicable shall pay to Arcion all unpaid fees set forth in the Order Form(s) and Customer will not be entitled to any refund of any fees paid prior to such termination. If an Order Form or this Agreement is terminated due to Arcion’s breach, Customer, as applicable, shall pay Arcion all unpaid fees set forth in the Order Form(s) up to the date of termination; provided, however, Arcion will refund to Customer all applicable pre-paid fees, in an amount pro-rated for the portion of the Subscription Term for which the Arcion Software was not available to Customer. Upon termination of this Agreement, all Order Forms will immediately terminate. Sections 1 (Definitions), 2.2 (Restrictions), 2.3 (Responsibilities), 3 (Ownership), 4 (Payment Terms), 5 (Confidentiality), 6.2 (Disclaimers), 7 (Limitation of Liability), 8 (Indemnification), 9.3 (Effect of Termination), 10 (Export), 11 (Government Restricted Rights) and 13 (Miscellaneous) shall survive the expiration or termination of and Order Form or this Agreement.
Customer agrees to comply fully with all U.S. export laws and regulations to ensure that neither the Arcion Software nor any technical data related thereto, nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
If Customer is a branch or agency of the United States Government,
In connection with this Agreement, each Party is an independent contractor and as such will not have any authority to bind or commit the other Party. Furthermore, neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.
If Arcion permits Customer to access, use and/or install (if applicable) the Arcion Software for evaluation purposes for no fees or charges (“Pilot Project”), Customer may be presented with additional terms and conditions prior to such use, and such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding upon the Parties. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY PILOT PROJECT WILL BE MADE AVAILABLE BY ARCION TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (TO THE FULLEST EXTENT PERMITTED BY LAW) AND (II) WITHOUT ANY OBLIGATION OF ARCION TO PROVIDE SUPPORT AND MAINTENANCE, THE SLA OR ANY INDEMNITY FOR CUSTOMER’S ACCESS TO, AND USE OF, AND/OR INSTALLATION OF, THE ARCION DURING THE PILOT PROJECT.
Customer may choose to obtain products and services that are provided or supported by third parties for use with the Arcion Software or the Professional Services. Such third party products and services are provided pursuant to the terms of the applicable third party agreement between Customer and such third party, and Arcion assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products or services.
During the term of this Agreement and for a period of one (1) year thereafter, upon reasonable notice and during Customer’s normal business hours, Arcion shall have the right to audit Customer’s use of the Arcion Software to ensure Customer compliance with this Agreement and the applicable Order Form. Customer shall promptly pay the difference (plus interest) if such an audit reveals an underpayment and/or excess use of the Arcion Software. If such an audit reveals an underpayment of more than five per cent (5%), Customer shall also promptly reimburse Arcion for the reasonable costs and expenses of such audit.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the San Francisco County, California and the Parties hereby consent to personal jurisdiction and venue therein, and waive any venue jurisdiction or venue objections.
Neither Party may assign or transfer this Agreement, nor any rights granted hereunder, by operation of law or otherwise, without the other Party’s prior written consent, and any attempt to do so without such consent will be void and have no effect; provided, however, each Party may assign this Agreement without consent of the other Party in connection with a merger or acquisition or a sale of all or substantially all of such Party’s assets.
Neither Party shall be liable for failure to perform any of its obligations under this Agreement (except payment obligations) during any period in which such Party cannot perform due to fire, earthquake, flood, any other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of nature, the intervention of any government authority, any failure or delay of any transportation, power, or for any other cause beyond such Party’s control (“Force Majeure Event”). In the case of failure to perform, the failing Party shall promptly notify the other Party in writing of the reason for and the likely duration of the failure. The performance of the failing Party's obligations shall be suspended during the period that the cause persists, and each Party shall use commercially reasonable efforts to avoid the effect of that cause.
This Agreement is intended for the sole and exclusive benefit of each Party and is not intended to benefit any third party.
This Agreement, each Order Form and their terms constitute the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter, and any shrink-wrap, click-wrap, browse-wrap, online or web-posted terms (whether made available before, on or after the Effective Date), except for any URLs explicitly referenced in this Agreement or any Order Form. Purchase orders (or similar documents) issued by Customer are for administrative purposes only (e.g., setting out Services ordered and associated fees) and any additional or different terms or conditions contained in any such purchase order shall not apply (even if the order is accepted, or performed on, by Arcion). In the event of any conflict between the terms of this Agreement and any Order Form, the terms of the Order Form will prevail.
Any waiver of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both Parties.
Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both Parties.
If any court of competent jurisdiction determines that any provision of this Agreement is unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
All notices or approvals required or permitted under this Agreement will be in writing and delivered by overnight delivery service with signature required, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in this Agreement or to such other address as may be specified by either Party to the other in writing in accordance with this section.
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