GENERAL TERMS AND CONDITIONS
1. Scope. These General Terms and Conditions (these “General Terms”) govern any services (“Services”) provided by Arcane LLC d/b/a Arcane Strategies, a Delaware limited liability company (“Arcane Strategies” or “we” or “us”), to the purchaser of such services (“Client” or “you”) pursuant to (any of the following, as applicable, an “Order”): (a) any written order form referencing these General Terms that is executed from time to time by both parties (an “Order Form”); (b) any “click-through” or other electronic ordering or purchasing processes or capabilities provided on Arcane Strategies’s customer portal or website (www.arcanestrategies.com, or any replacement or successor site, the “Site”); or (c) any request for additional Services (a “Services Request”) which (i) your designated authorized representatives (as further described in Section 7.2, below, the “Client Representatives”) submit via email to firstname.lastname@example.org or through electronic processes or capabilities provided on the Site or otherwise made available by Arcane Strategies from time to time, and (ii) is accepted by Arcane Strategies, either by written confirmation (via email or other means) or by provisioning or beginning to provide the requested additional Services. Any Order may contain or incorporate by reference additional terms and conditions applicable to the particular Services to be provided thereunder. Arcane Strategies’s acceptance of, or commencement of Services under, any Order may, in Arcane Strategies’s sole discretion, be subject to Client meeting Arcane Strategies’s credit approval criteria.
2. Agreement. As used in these General Terms, the “Agreement” means, collectively, any Orders, as described above, the then-current version of these General Terms which is posted on the Site (except as otherwise provided below), and any additional terms and conditions incorporated by reference into these General Terms or included or incorporated into any Order. Arcane Strategies may update these General Terms from time to time, upon providing written notice of the updated terms (which notice may be given by posting an updated version of these General Terms on the Site or via other reasonable means, including notice via email). You must notify Arcane Strategies in writing within thirty (30) days after the date of any such notice of any objections to the updated General Terms (in which case the parties will confer and negotiate in good faith to agree upon a reasonable resolution, and if the parties fail to mutually agree upon a resolution within a reasonable time, then the version of these General Terms which was in effect when Client’s then-most recent Order was submitted or executed shall continue to apply and govern), or you will be deemed to have agreed to the updated General Terms.
3. Services. The Services available from Arcane Strategies include: (a) systems administration or systems operations and management Services (“Managed Services,” as further described below, inclusive of “Managed Cloud Services”) which (as specified or described in the applicable Order) are provided by Arcane Strategies remotely, via the Internet, for specified servers or other devices or resources (“Covered Devices”) either being hosted by Client itself or being hosted for Client by an Arcane Strategies-approved third-party hosting platform or provider (a “Hosting Provider”) pursuant to a contractual arrangement between Client and the Hosting Provider; (b) hosting, support, and maintenance Services (“Hosting Services”) with respect to Covered Devices for which Arcane Strategies is also providing Managed Services and which Arcane Strategies, as Client’s limited agent, arranges for a Hosting Provider to provide; and (c) any technical, consulting, support, or other professional services which are outside of the scope of any Managed Services and Hosting Services (e.g., database administration (or “DBA”) services, or one-time or non-recurring support for a software application operating on the servers for which Managed Services are being provided) and which are described and agreed upon in any Order or otherwise in writing by the parties (“Additional Services”). Arcane Strategies may modify, enhance, upgrade, improve, or otherwise change any Services, and Arcane Strategies may establish new policies and procedures regarding the provision or use of any Services, as it deems necessary or appropriate from time to time, provided that the functionality and features of any Services being provided under any Order are not materially and significantly reduced or decreased thereby.
4. Managed Services
4.1 Scope. Arcane Strategies will provide the Managed Services described in any Order for the numbers and types of Covered Devices, environments, and platforms specified in the Order (or otherwise applicable in accordance with Arcane Strategies’s standard policies and procedures), in return for a recurring monthly fee. Additional Covered Devices, environments, and platforms, and other changes to the scope of the Managed Services, may be made at any time pursuant to an additional Order, with the applicable fees charged at Arcane Strategies’s then-current rates for the additional or changed items.
4.2 Client-Hosted Devices. If Client is hosting the Covered Devices itself, then unless otherwise provided in any Order, then except for any services which are expressly specified in these General Terms or any Order as being within the scope of the Managed Services, Client, at its sole expense, is solely and exclusively responsible for: (a) procuring, installing, configuring (in a manner consistent with Arcane Strategies’s applicable policies and procedures, which Arcane Strategies will provide or make available upon request), maintaining, and updating the Covered Devices and any infrastructure, storage, and network resources required for their operation, any application software (including all necessary or required licenses thereto) which Client desires to operate or execute on the Covered Devices, as specified in the applicable Order or as otherwise mutually agreed to by the parties (the “Application Software”), and any systems software (e.g., operating systems, database management systems, etc.) necessary for the operation of the Covered Devices and the application software; (b) procuring and maintaining an Internet connection of sufficient and appropriate bandwidth through which Arcane Strategies may remotely access the Covered Devices and perform the Managed Services; and (c) configuring the Covered Devices and Client’s network appropriately so that Arcane Strategies is granted the necessary and appropriate rights for it to access the Covered Devices and perform the Managed Services.
4.3 Hosting Providers. If Client is not hosting the Covered Devices itself, as described above, then except in the case in which, pursuant to an applicable Order, Arcane Strategies is also providing Hosting Services for the Covered Devices, Client is solely responsible for maintaining an appropriate contractual arrangement with an Arcane Strategies-approved Hosting Provider (currently, any of those specified in the table below) pursuant to which the respective platform services and ancillary services specified in the table below are provided or made available, the other requirements specified in the table below are met or satisfied (all such platform services, ancillary services, and requirements, collectively, the “Supported Technologies”), and Arcane Strategies is granted the necessary and appropriate rights for it to access the Covered Devices and perform the Managed Services. Arcane Strategies’s ability to provide the Managed Services is subject to any limitations or restrictions imposed by the Hosting Provider or the services and capabilities it offers or provides (e.g., the Hosting Provider may only support specific services and may limit or restrict the scope of its services, as Microsoft Azure currently does with respect to its “Web + Mobile” ancillary service). The table below is subject to change from time to time by Arcane Strategies, as necessary to reflect changes to Hosting Providers, the services and capabilities they offer or provide, and the limitations, restrictions, and requirements they impose. Client acknowledges and agrees that Arcane Strategies may (including in its role as, with respect to Amazon AWS, a certified “AWS Partner”) disclose any Client Representative’s contact information to the Hosting Provider, for the purposes of verifying Arcane Strategies as a servicing contractor of Client’s.
|Hosting Provider||Platform Service
> Ancillary Services
|Required OS/Kernel, Configuration, and Services|
|Amazon Web Services (“AWS”)||EC2
> EBS, Snapshots, AMI
> Container Registry
– Linux RHEL or Debian (RedHat/CentOs, Debian/Ubuntu/Raspbian)
– PHP/Python/Perl (service-only)
> Web + Mobile
> Azure Container Service
|Rackspace||Dedicated Private Cloud Cloud Site|
4.4 Support Requests. The Client Representatives may submit support requests regarding the Managed Services and Covered Devices through the incident management system made available by Arcane Strategies on or through the Site (the “Ticketing System”) or via telephone, email, or other methods described in the Agreement or in Arcane Strategies’s applicable policies (any such request so submitted, a “Support Request”). Arcane Strategies will use commercially reasonable efforts to respond to any Support Request within the response time specified in the table below (the “Response Time”) with respect to the service level agreement (“SLA”) to which Client has subscribed for the Managed Services, as specified in the applicable Order. Arcane Strategies will only contact and provide support to the Client Representatives, and not to any other individual, unless Arcane Strategies, in its discretion, deems it necessary or appropriate to do so. Arcane Strategies’s standard hours of support (“Support Hours”) are from 9:00 a.m. through 5:00 p.m., U.S. Eastern time, each Monday through Friday, excluding nationally recognized holidays. Arcane Strategies is not responsible for supporting, or for responding to Support Requests for, any devices that are maintained or supported by anyone other than Arcane Strategies. Arcane Strategies will respond to Support Requests in the order submitted by Client. However, if Client submits multiple Support Requests at or about the same time, Client may indicate its desired priority of each such Support Request, and Arcane Strategies will give consideration to such desired priority. Arcane Strategies cannot guarantee that such Client’s desired priority will be followed. Arcane Strategies will use commercially reasonable efforts to prioritize Support Requests from all of its customers (including Client) in accordance with the applicable SLA, with Support Requests subject to the same SLA then handled on a first-submitted, first-served basis, unless Arcane Strategies otherwise deems it necessary or appropriate. Arcane Strategies reserves the right to charge additional fees, in accordance with Arcane Strategies’s then-current applicable rates and policies, for services outside of the scope of the Managed Services which Arcane Strategies is required to provide to appropriately remediate issues that are the subject of a Support Request or that relate to events that Arcane Strategies is not obligated to provide support for (with additional fees, or higher rates, applying to services provided on an emergency or urgent basis or outside of Support Hours). For the avoidance of doubt, the SLA to which Client has subscribed shall not apply to, and Arcane Strategies disclaims all responsibility and liability with respect to any devices, resources, or items which are not part of the Covered Devices, environments, and platforms specified in, or otherwise applicable to, any relevant Order, that do not conform to the Supported Technologies, or that otherwise are outside of the scope of the Managed Services.
|Selected SLA||Timeframes for Submitting Support Requests||Response Time Objective||Eligible for Emergency Support Requests?|
|Standard||Via telephone during Support Hours, and on a “24×7” basis (i.e., 24 hours a day, every day) via email or the Ticketing System||From 4 to 6 hours, during Support Hours, after receipt of the Support Request||No|
|Premium||On a 24×7 basis, whether submitted via phone, email, or the Ticketing System||From 2 to 4 hours after receipt of the Support Request||Yes|
4.5 Emergency Support Requests. If Client has subscribed to the Premium SLA, the Client Representatives will be entitled to submit emergency Support Requests (each an “Emergency Support Request”) for the following issues: (i) downtime based on Client’s applicable website homepage generating 40x and 50x errors; and (ii) any outage of any of the Covered Devices for which Arcane Strategies is providing Managed Services. Client must clearly designate any Support Request as an Emergency Support Request by including one of the following terms in the requests when submitted: “emergency,” “urgency,” or “urgent.” Any Support Request that does not include one of such terms when submitted, and any Support Request submitted by Client if Client is not then subscribed to the Premium SLA, shall not be considered an Emergency Support Request, and Arcane Strategies will use commercially reasonable efforts to respond to any such Support Request in accordance with the applicable SLA, as described above. Arcane Strategies will use commercially reasonable efforts to promptly and diligently address Emergency Support Requests upon receipt thereof, on a 24×7 basis.
4.6 Access and Administration. Unless otherwise specified in an Order or otherwise mutually agreed by the parties (whether through telephone or email communications or through Client’s submission of, and Arcane Strategies’s response to, a Support Request, as described above), Arcane Strategies shall solely and exclusively have administrative access to, and authority and control over, the Covered Devices. IF CLIENT OR ANY THIRD PARTY IS PERMITTED TO HAVE ADMINISTRATIVE ACCESS TO, OR AUTHORITY OR CONTROL OVER, ANY COVERED DEVICES, THEN: (A) NO SLA SHALL APPLY; (B) ARCANE STRATEGIES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY UNAVAILABILITY, OUTAGES, ERRORS, OR OTHER ISSUES THAT ARISE AND RESERVES THE RIGHT TO CHARGE ADDITIONAL FEES OR HIGHER RATES, IN ACCORDANCE WITH ARCANE STRATEGIES’S THEN-CURRENT APPLICABLE RATES AND POLICIES TO APPROPRIATELY INVESTIGATE CAUSALITY OF AND REMEDIATE SAID OCCURRENCES; AND (C) ARCANE STRATEGIES SHALL BE EXCUSED FROM ANY FAILURES OR DELAYS WITH RESPECT TO THE MANAGED SERVICES.
4.7 Services Management Agents. Client shall not interfere with any software agents or monitors that Arcane Strategies installs on any Covered Devices (collectively, “Agents,” and including, but not limited to, agents to more efficiently manage the Covered Devices, to identify unusual circumstances, and to identify security issues and vulnerabilities). Arcane Strategies will use commercially reasonable efforts to use Agents which use only a reasonable amount of computing resources and do not materially interfere with use or operation of the Covered Devices. Arcane Strategies will not use any Agents for the purpose of inappropriately viewing or capturing Client’s data or content. Arcane Strategies will not be liable or responsible for any delay or failure in the provision of any Services, and Client will be responsible for reimbursing Arcane Strategies for any costs and expenses incurred, as a result of Client disabling or interfering with any Agents.
5. Hosting Services
5.1 Scope. Arcane Strategies will, as Client’s limited agent, contractually arrange for a Hosting Provider to provide the Hosting Services described in any Order for the numbers and types of Covered Devices, instances, environments, and platforms specified in the Order (or otherwise applicable in accordance with Arcane Strategies’s standard policies and procedures) and for which Arcane Strategies is also providing Managed Services, in return for a recurring monthly fee. Additional Covered Devices, instances, environments, and platforms, and other changes to the scope of the Hosting Services, may be made at any time pursuant to an additional Order, with the applicable fees charged at Arcane Strategies’s then-current rates for the additional or changed items. Unless otherwise provided in any Order, as part of the Hosting Services, the Hosting Provider will provide Client with a single “instance” of virtual hosting space at its hosting center or location, in accordance with the resource specifications (e.g., the RAM and disk space allocations, dedicated IP address(es), virtual private servers (“VPS”), virtual cpus, and virtual gpus) specified in the applicable Order or selected by Client through the capabilities of the Site in a manner consistent with the applicable Order or by Arcane Strategies configuration of Client’s Hosting Services instance, as described below. Arcane Strategies is merely acting as Client’s agent with respect to arranging for Hosting Services to be provided. The Hosting Provider’s provision of any Hosting Services, and Client’s use of and access to any Hosting Services, is subject to the terms and conditions of the contractual arrangement with the Hosting Provider pursuant to which the Hosting Services are provided and the capabilities and processes offered and supported by the Hosting Provider. In return for the fees for the Hosting Services applicable under any Order, Arcane Strategies will make payments to the Hosting Provider on Client’s behalf, and Arcane Strategies will use commercially reasonable efforts to enforce the terms of the contractual arrangement with the Hosting Provider. HOWEVER, CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT ARCANE STRATEGIES IS NOT RESPONSIBLE OR LIABLE FOR THE HOSTING PROVIDER OR FOR ANY DELAY, FAILURE, OR BREACH OF CONTRACT BY THE HOSTING PROVIDER. Client shall not use any Hosting Services for any purposes not contemplated by, and consistent with, the Agreement.
5.2 Configuration. As part of the Hosting Services, Arcane Strategies will, unless otherwise provided in an applicable Order, perform the initial, one-time set-up and configuration of Client’s instance of the Hosting Services in accordance with Arcane Strategies’s default configuration, which may include Arcane Strategies’ standard images on either Linux or Windows or the Hosting Provider’s standard images and default configuration. Unless otherwise specified in an Order or otherwise mutually agreed by the parties (whether through telephone or email communications or through Client’s submission of, and Arcane Strategies’s response to, a Support Request, as described above with respect to the Managed Services) within twenty-four (24) hours after the execution or submission of the applicable Order, Client authorizes Arcane Strategies to select the applicable default configuration of Client’s Hosting Services instance. Any changes to the configuration of Client’s Hosting Services instance after the initial configuration thereof, as described above, shall be performed pursuant to an additional Order and shall be subject to additional fees, at Arcane Strategies’s then-current standard rates.
5.3 Application Software. As part of the Hosting Services, Arcane Strategies will, unless otherwise provided in an applicable Order, perform the initial, one-time installation of the Application Software to be provided by Client, as specified in the applicable Order or as otherwise mutually agreed to by the parties, in Client’s instance of the Hosting Services, in accordance with Arcane Strategies’s standard processes and procedures. If the Application Software is not compatible with Arcane Strategies’s standard processes and procedures (whether with regard to initial installation or subsequent activities), then an Order for Additional Services, and Client’s payment of additional fees, may be required. Client is solely responsible for obtaining any necessary and appropriate licenses to the Application Software, and unless otherwise directed by Arcane Strategies, for providing a copy of the object code of the Application Software to Arcane Strategies, either electronically or on electronic media provided by the applicable software licensor or provider (the “Licensor”), both initially and as otherwise required thereafter from time to time. Any reinstallation of the Application Software, and any installation of any new releases, versions, patches, and fixes of or to the Application Software after the initial installation, as described above, shall be performed pursuant to an additional Order and shall be subject to additional fees, at Arcane Strategies’s then-current standard rates. Client is responsible for, at its sole cost and expense, maintaining in force and effect throughout any applicable Order Term (as defined in Section 9.2) a support and maintenance contract for the Application Software with the applicable Licensor and for providing Arcane Strategies with the necessary power and authority to contact and obtain support and materials (e.g., as applicable, patches, fixes, and new releases and versions of the Application Software) from the Licensor. Upon Arcane Strategies’s written request from time to time, Client shall promptly provide written evidence of its compliance with the terms of this paragraph. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT ARCANE STRATEGIES IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURES, DEFFECTS, OR ERRORS IN THE APPLICATION SOFTWARE, FOR ANY DELAY, FAILURE, OR BREACH OF CONTRACT BY THE LICENSOR OF THE APPLICATION SOFTWARE, OR FOR ANY FAILURE OR DELAY RESULTING FROM CLIENT’S FAILING TO FULFILL ITS OBLIGATIONS UNDER THIS SECTION IN A TIMELY MANNER.
5.4 Access and Administration. Unless otherwise specified in an Order or otherwise mutually agreed by the parties (whether through telephone or email communications or through Client’s submission of, and Arcane Strategies’s response to, a Support Request, as described above with respect to the Managed Services), Arcane Strategies shall solely and exclusively have administrative access to, and authority and control over, Client’s Hosting Services instance. If Client or any third party is permitted to have administrative access to, or authority or control over, Client’s Hosting Services instance, then: (a) no SLA shall apply; (b) Arcane Strategies shall not be responsible or liable for any unavailability, outages, errors, or issues that may arise and reserves the right to charge additional fees or higher rates, in accordance with Arcane Strategies’s then-current applicable rates and policies to appropriately investigate causality of and remediate said occurrences; and (c) Arcane Strategies shall be excused from any failures or delays with respect to the Hosting Services.
5.5 Support. Arcane Strategies will manage the Hosting Services on behalf of Client in accordance with Arcane Strategies’s standard policies and procedures, as Arcane Strategies deems necessary and appropriate from time to time. The Client Representatives may submit, and Arcane Strategies will respond to, Support Requests with respect to the Hosting Services in the same manner as described above with respect to the Managed Services. Client acknowledges and agrees that Arcane Strategies may (including in its role as, with respect to Amazon AWS, a certified “AWS Partner”) disclose any Client Representative’s contact information to the Hosting Provider, for the purposes of verifying Arcane Strategies as a servicing contractor of Client’s.
5.6 Authorized Users. Client is responsible for designating any individuals which it desires to be authorized users of the Covered Devices and/or Application Software and for establishing the appropriate rights, permissions, and authority of such authorized users within the Covered Devices and/or Application Software. Client shall inform its authorized users of the terms of the Agreement, and Client shall be responsible for its authorized users’ compliance with the terms of the Agreement. As between the parties, Client is solely and exclusively responsible and liable for any access to, and use or alteration of, any Application Software, Covered Devices, Client Data (as defined below), or other relevant systems, networks, data, or other resources through Client’s account or any user IDs or logins associated with Client’s account, or otherwise as a result of Client’s or any third party’s actions, omissions, or negligence (including, but not limited to, any failure to use reasonable security precautions), even if such access, use, actions, or omissions were not authorized by Client, except for unauthorized access and use by Arcane Strategies or third parties under its direction or control.
5.7 Client Data. Arcane Strategies does not have knowledge of or access to (except with Client’s prior written permission or engagement in services which require permission) any data processed, stored, or maintained by Client and its authorized users in or through the Application Software (“Client Data”). Therefore, as between the parties, Client is solely and exclusively responsible for taking all reasonable steps to reduce and mitigate any risks relating to the Client Data or any unauthorized access to, or unauthorized use, disclosure, loss, or alteration of, any Client Data, and for compliance with any laws, rules, regulations, and industry standards (e.g., the Payment Card Industry-Data Security Standard with respect to “cardholder data”).
5.8 Backups. Client expressly acknowledges and agrees that, unless expressly otherwise agreed in any Order, Arcane Strategies is not responsible for backing up, or for maintaining any backups of, any Client Data or any other data relating to any Hosting Services. Any backup services that Client desires Arcane Strategies to provide with exception to those provided in Managed Services must be specified and described in an Order for Additional Services and will be subject to additional fees, at Arcane Strategies’s then-current standard rates for the applicable types of Additional Services.
5.9 Acceptable Use. Client shall not use, or permit the use of, any Hosting Services: (a) to send unsolicited messages (via fax, email, or otherwise) in violation of applicable law; (b) to store, send, or provide access to obscene or otherwise illegal materials; (c) to store, send, or provide access to materials that would infringe any intellectual property right or violate any privacy right of any third party; or (d) in any manner that violates or does not comply with applicable laws and regulations of any relevant jurisdiction.
6. Additional Services. Client may request services that are outside of the scope of the Managed Services or Hosting Services by submitting a Support Request or an additional Order to Arcane Strategies, but Arcane Strategies does not guarantee that it can or will provide any Additional Services. Arcane Strategies, in its sole discretion, will determine whether to accept any request for any Additional Services, and any Additional Services which are provided must be described in an Order and will be subject to additional fees, at Arcane Strategies’s then-current standard rates, unless expressly otherwise provided in the applicable Order or otherwise mutually agreed to by the parties in writing. In addition, Client shall pay or reimburse Arcane Strategies for any out-of-scope materials and resources which Arcane Strategies agrees to purchase for or on behalf of, or otherwise provide to, Client. Alternatively, Client may choose to purchase any such materials or resources itself and provide them to Arcane Strategies for use in providing Services to Client, with any additional fees applicable in such a case being as mutually agreed to by the parties in an additional Order or otherwise in writing. Arcane Strategies will use commercially reasonable efforts to perform any Additional Services in a professional, competent and workmanlike manner, in material accordance with standards common and prevalent in the industry.
7. Client Responsibilities
7.1 General. Client is solely responsible for procuring and maintaining any hardware, software, equipment, infrastructure, and other resources and technology that are necessary or appropriate for it to access and use the Services or the systems hosted for it through the Hosting Services or otherwise by a Hosting Provider, including, but not limited to, Internet connectivity of appropriate bandwidth. Client shall provide such information and documentation to Arcane Strategies as are necessary and appropriate for Arcane Strategies to provide and support the Services, and Client shall ensure that all information and documentation it provides to Arcane Strategies is accurate and current. Client is responsible for keeping its Services account information (including, but not limited to, billing information and information on the authority and permissions of users) up-to-date and accurate using the capabilities of the Site or other processes made available by Arcane Strategies, and through other reasonable methods (e.g., Support Requests). Client shall reasonably cooperate with Arcane Strategies with respect to any issues concerning the Services, including, but not limited to, investigation of Services outages, security issues, and any suspected breach of security or of the Agreement. Client acknowledges that it is solely and exclusively responsible for its compliance with any legal and regulatory requirements applicable to it or its business operations and for determining whether the Services will allow it to comply with such requirements or are otherwise appropriate for Client’s particular needs, use, or purpose.
7.2 Client Representatives. Client shall designate two (2) appropriately qualified, authorized representatives, either as specified in the applicable Order or as otherwise designated by Client to Arcane Strategies in writing from time to time (the “Client Representatives”), who will serve as Client’s primary liaisons for communicating and interacting with Arcane Strategies regarding the Services and reporting and addressing any related issues or concerns. The Client Representatives shall have the authority to make any necessary decisions for, and to bind, Client. Services Requests and Support Requests may be submitted only by the Client Representatives and only through the Ticketing System or other methods described in the Agreement or in Arcane Strategies’s applicable policies. Arcane Strategies will only provide support for the Services to the Client Representatives, not to Client’s users, unless expressly otherwise agreed by Arcane Strategies in writing. If Client replaces either of its designated Client Representatives, Client shall promptly notify Arcane Strategies thereof in writing, and all actions and approvals by any replaced Client Representative through the date Arcane Strategies receives such a notification shall remain valid.
7.3 Necessary Rights and Resources. Client represents and warrants that it has, and shall at all applicable time have, all rights and licenses necessary and appropriate for Arcane Strategies to perform the Services in accordance with the Agreement and the applicable Order without breaching any agreement or violating any third party’s rights. Client is responsible for obtaining any consents or permissions of third parties that are necessary or appropriate for Arcane Strategies to perform any Services. As between the parties, Client is solely and exclusively responsible for contracting with, and compensating, any applicable third-party service providers of Client’s (including, but not limited to, any Hosting Providers (unless Arcane Strategies is providing the associated Hosting Services) and Licensors) and for procuring and providing or making available to Arcane Strategies any applicable materials and resources that are necessary or appropriate for Arcane Strategies to perform the Services in accordance with this Agreement.
7.4 Security. Client shall use reasonable security practices and precautions in connection with its and its authorized users’ access to and use of any Services, in accordance with any security policies or practices provided or made available by Arcane Strategies or on the Site or included or referenced in any Order (collectively, the “Security Policies”). Unless otherwise specified in the Agreement or the Security Policies or with respect to the Managed Service, Client is solely responsible for ensuring the security and confidentiality of any of Client’s data. Responsible parties or Client will use commercially reasonable efforts to prevent unauthorized access to or use of any Services, and Client shall contact Arcane Strategies immediately (but, in any event, within one (1) business day) if: (a) any of Client’s data, or any user login or identification or any associated password for Client’s authorized users to access and use any Services, is lost, stolen or disclosed to an unauthorized person; or (b) Client reasonably believes that any Services, or any systems or data relating to any Services, have otherwise been breached or compromised.
7.5 Suspension of Services. Client expressly acknowledges and agrees that, without limiting any other remedy which Arcane Strategies may have under the Agreement, Arcane Strategies may suspend the provision of any Services (or any component thereof), without penalty or incurring liability, if any of the following have occurred or are then occurring: (a) Arcane Strategies reasonably believes that any Services are being accessed or used in breach of the Agreement or in a manner which impairs or impedes the provision or normal use or operation of the Services, or interferes with, jeopardizes, or creates risk to the security, confidentiality, integrity, operation, or use of any Services, Arcane Strategies’s or Client’s networks or systems, any data of Client, Arcane Strategies, or any third party, or any third-party systems with which the Services are interconnected; (b) Client fails to reasonably cooperate with Arcane Strategies in a reasonable investigation of any suspected breach or violation of the Agreement within a reasonable time after Arcane Strategies has notified Client of the investigation and requested such cooperation; (c) there is an attack (whether in the form of hacking, exploitation of a security vulnerability, malicious code or infection, or otherwise) on any Covered Devices or other relevant resources, or any Covered Devices or other relevant resources have been accessed or manipulated in an unauthorized manner; (d) Arcane Strategies is required by law or a regulatory or governmental authority to cease providing or suspend the Services; or (e) any other event occurs or circumstances arise for which we reasonably believe that the suspension of Services is necessary to protect Arcane Strategies, its systems and networks, or its other customers or other third parties, inclusive of failure to remit payment as defined below. Arcane Strategies will promptly notify Client of any such suspension (via email or telephone, and in advance, except in urgent or emergency situations), explaining the reasons for the suspension, and the parties shall diligently cooperate and work together in good faith to resolve the issue and restore the Services and Client’s and the users’ use thereof in accordance with the Agreement, as soon as reasonably practicable in the circumstances. If out-of-scope services are required to resolve any issues and Client does not, or is not able to, perform such services, then to the extent Arcane Strategies can or is willing to provide such services, such services will be provided pursuant to an additional Order, with the applicable fees charged at Arcane Strategies’s then-current rates for the applicable services and in accordance Arcane Strategies applicable policies and procedures.
7.6 Third-Party Products and Services. Client acknowledges that it will be utilizing third-party products and services (collectively, “Third-Party Services”) in connection with the Services provided by Arcane Strategies under the Agreement (e.g., the Third-Party Services of a Hosting Provider or a Licensor) and that Arcane Strategies’s ability to perform and provide the Services may depend upon, and be limited or restricted by, those Third-Party Services and the manner in which they are provided by the relevant third party. In addition, Arcane Strategies personnel may from time to time suggest certain Third-Party Services for Client’s consideration. Notwithstanding the foregoing, Client expressly acknowledges and agrees that Arcane Strategies is not responsible or liable for any Third-Party Services, their performance, features, interoperability, defects, or failures, or the third parties respectively providing and responsible for them. ARCANE STRATEGIES MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING ANY THIRD-PARTY SERVICES OR ANY SUCH THIRD PARTIES. Client’s use of any Third-Party Services is governed by the terms and conditions imposed by the applicable third party and is at Client’s sole risk.
8. Fees and Payment
8.1 Invoicing. In consideration for the provision of the Services, Client shall pay Arcane Strategies the fees specified in or otherwise applicable to any Order. Unless expressly otherwise provided in the applicable Order, the fees for any Managed Services and Hosting Services for any given month are due and payable by no later than the first (1st) day of such month, with the fees for partial months of Managed Services and Hosting Services appropriately prorated. Any fees for Additional Services shall be due and payable as specified and described in the applicable Order, except that, if not otherwise specified in the applicable Order, the fees for any Additional Services shall be charged at Arcane Strategies’s then-current standard rates for the applicable Services and will be invoiced monthly in arrears, as incurred. Similarly, the fees for any out-of-scope services shall be charged at Arcane Strategies’s then-current standard rates for the applicable services and will be invoiced monthly in arrears, as incurred. In each case, except as otherwise provided above, payment is due within thirty (30) days after the date of the applicable invoice. Payment may be made by any method specified in the relevant Order or otherwise agreed to in writing by the parties. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND THE RELEVANT CREDIT CARD COMPANY, IF PAYMENT IS MADE BY CREDIT CARD, ARCANE STRATEGIES SHALL PASS THROUGH TO CLIENT, AND CLIENT SHALL PAY IN A TIMELY MANNER, ANY CREDIT CARD PROCESSING FEES INCURRED BY ARCANE STRATEGIES THAT ARE ATTRIBUTABLE TO SUCH PAYMENT.
8.2 Late Charges. Any amount due and not received by Arcane Strategies by the applicable due date shall bear a late charge of five percent (5%) per month (or the maximum rate permissible under applicable law, if less than the foregoing) from the date due until paid. If Client fails to pay any undisputed, past-due amount within five (5) business days after receiving written notice of the delinquency from Arcane Strategies, Arcane Strategies may suspend the provision and Client’s use of any Services until all unpaid, past-due amounts are paid in full. TIME IS OF THE ESSENCE WITH REGARD TO CLIENT MAKING PAYMENT BY THE APPLICABLE DUE DATE. Arcane Strategies shall be entitled to reimbursement of reasonable collection costs, attorney fees, and other expenses of collection in the event it retains a collection firm or legal counsel due to Client’s failure to make payment in a timely manner. Except as expressly provided in this Agreement, all fees are nonrefundable and shall be paid without right of setoff, and payment obligations cannot be canceled, regardless of actual usage of the Services.
8.3 Taxes. The fees exclude, and unless Client provides Arcane Strategies with a valid tax exemption certificate, Client shall pay, any value-added, goods, services, sales, use, excise, and similar taxes, duties, and levies imposed at any time (now or in the future) by any relevant jurisdiction (whether federal, state, or local in the United States or any applicable jurisdiction of any other country) in connection with the Agreement or the purchase, sale, performance, or provision of any Services (collectively, “Taxes”), excluding taxes based on Arcane Strategies’s income. Client may not withhold or deduct any applicable Taxes from any payment. Client shall provide Arcane Strategies with such accurate and adequate information and documentation as are necessary for Arcane Strategies to determine if any Taxes are payable.
8.4 Expenses. Unless expressly otherwise provided in an applicable Order, Arcane Strategies shall invoice Client for, and Client shall pay, any pre-approved out-of-pocket expenses, including reasonable travel and transportation, lodging, and meal expenses, and any applicable communications, shipping, and other third-party charges.
8.5 Changes to Fees. Arcane Strategies reserves the right to charge additional fees for any changes to any Services, or to the specifications for any Services, that are made after the date of the applicable Order at Client’s written request or that are otherwise necessary for the Services to be properly provided. Arcane Strategies reserves the right to change its fees as it deems appropriate from time to time as a result of industry changes, changes to fees charged by third parties, changes in technology or to access methods, changes in applicable law, or for any other reason, in its sole discretion. In addition, Arcane Strategies may charge additional fees for Services performed outside of Arcane Strategies’s Support Hours.
9.1 Initial Term. The initial term of any Order (the “Initial Order Term”) shall be as specified or described in such Order. Arcane Strategies may require that Orders for Managed Services or Hosting Services be of at least a specified minimum duration. The term of any subsequently executed Order modifying or expanding the scope of any Managed Services or Hosting Services already being provided shall be coterminous with that of the initial Order for such Services, with the applicable initial fees payable under the subsequently executed Order being appropriately prorated for the then-remaining portion of the then-current term of the previously existing Order. Orders for Additional Services may specify a term for which the Additional Services will be provided or may describe a project or set of Services to be completed.
9.2 Renewal Terms. Unless either party provides written notice of non-renewal to the other at least thirty (30) days prior to the expiration of the Initial Term of the Order, any Order for Managed Services or (subject to the terms of the contractual arrangement with the applicable Hosting Provider) Hosting Services, and any Order for Additional Services being provided on an ongoing, recurring, or continuing basis, whether in connection with any Managed Services or Hosting Services or otherwise, shall automatically renew and be extended, on a month-to-month basis, upon expiration of the Initial Term of the Order. If Client wishes to renew an Order for a period longer than one (1) month, Client may notify Arcane Strategies thereof, and the parties may mutually agree in writing to a longer renewal term. The Initial Term and any renewal terms of any Order are collectively referred to herein as the “Order Term.” Except as otherwise provided in the applicable Order or these General Terms, or as otherwise mutually agreed to by the parties in writing, the fees for any Services provided during the renewal term of any Order shall be charged at Arcane Strategies’s then-current standard rates for the corresponding Term and applicable Services.
10.1 Termination for Breach. Either party may terminate the Agreement and all Orders (or any one or more affected Orders), upon providing written notice to the other party, if the other party materially breaches the Agreement (or any Order) and fails to cure such breach within thirty (30) days after receiving written notice reasonably describing the breach from the non-breaching party (except that the applicable cure period shall be only fifteen (15) days with respect to a breach by Client of its payment obligations hereunder).
10.2 Effects of Termination. Upon any termination of the Agreement or any expiration of any Order: (a) Arcane Strategies shall cease providing, and, if applicable, shall disable Client’s access to, any terminated or expired Services; (b) Client shall, if applicable, immediately cease access to and use of the terminated or expired Services; and (c) Client shall promptly pay to Arcane Strategies any amounts payable pursuant to any terminated or expired Order or these General Terms. If the Agreement or any Order is terminated by Arcane Strategies pursuant to the immediately preceding paragraph, then Arcane Strategies shall not be liable for any loss or damages Client incurs as a result of such termination, and in addition to any other amounts that have accrued and become due and payable through the effective date of termination, Client shall promptly pay to Arcane Strategies: (i) any fees which would have become due and payable with respect to the unexpired portion of the Order Term of any terminated Order for Managed Services or Hosting Services, as such Order Term had been scheduled immediately prior to the termination; and (ii) any actual out-of-pocket expenses incurred by Arcane Strategies as a result of the early termination (e.g., third-party charges incurred as a result of early termination of any leases, licenses, or other agreements). Any termination of the Agreement or any Order is in addition to, and not in lieu of, any other available rights or remedies of either party. Any termination of the Agreement shall simultaneously any Orders then in force and effect.
11.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THESE GENERAL TERMS OR IN ANY ORDER: (A) ARCANE STRATEGIES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT OR ANY SERVICES; (B) ARCANE STRATEGIES EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, NOT EXPRESSLY SET FORTH HEREIN (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES WHICH MIGHT ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING, OR COURSE OF PERFORMANCE); AND (C) THE SERVICES ARE PROVIDED “AS-IS,” WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES OF ANY KIND. ARCANE STRATEGIES DOES NOT REPRESENT, WARRANT, OR COVENANT THAT ANY SERVICES ARE OR WILL NECESSARILY BE CONTINUOUSLY AVAILABLE, ERROR-FREE, COMPLETELY SECURE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CLIENT OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM. ARCANE STRATEGIES DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY PARTICULAR RESULT, BE COMPATIBLE OR INTEROPERABLE WITH ANY PARTICULAR SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED THROUGH THE USE OF INTERNET CONNECTIVITY AND THAT TRANSMISSIONS VIA THE INTERNET OR OTHER THIRD-PARTY NETWOKS MAY NOT BE SECURE AND INVOLVE INHERENT RISKS WHICH COULD RESULT IN LOSS OF INFORMATION OR THE CONFIDENTIALITY OR PRIVACY THEREOF.
11.2 Other Disclaimers. ARCANE STRATEGIES SHALL NOT BE DEEMED IN BREACH OF THE AGREEMENT OR ANY ORDER, OR OTHERWISE RESPONSIBLE OR LIABLE, TO THE EXTENT THAT ANY DELAY OR FAILURE IN ARCANE STRATEGIES’S PERFORMANCE UNDER THE AGREEMENT IS CAUSED, DIRECTLY OR INDIRECTLY, BY ANY ACTION OR OMISSION OF CLIENT, ANY HOSTING PROVIDER OR LICENSOR (OR THEIR PRODUCTS OR SERVICES), OR ANY THIRD PARTY NOT UNDER THE DIRECTION OR CONTROL OF ARCANE STRATEGIES, OR BY ANY FAILURE, DELAY, OR BREACH OF THIS OR ANY OTHER AGREEMENT BY CLIENT, ANY HOSTING PROVIDER OR LICENSOR, OR ANY OTHER THIRD PARTY NOT UNDER ARCANE STRATEGIES’S DIRECTION OR CONTROL. AS CLIENT (AND NOT ARCANE STRATEGIES) IS RESPONSIBLE FOR MAINTAINING THE ACCESS RIGHTS, PERMISSIONS, AND CREDENTIALS WITH RESPECT TO THE COVERED DEVICES, ARCANE STRATEGIES IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY AND DAMAGES RESULTING FROM, ANY ACCESS OR CHANGES TO, OR ANY USE OF, THE COVERED DEVICES OR ANY OTHER RELEVANT RESOURCES BY ANYONE OTHER THAN ARCANE STRATEGIES OR THIRD PARTIES UNDER ITS DIRECTION OR CONTROL (EXCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY HOSTING PROVIDER OR LICENSOR). CLIENT ACKNOWLEDGES AND AGREES THAT, AS BETWEEN THE PARTIES, CLIENT IS SOLELY AND EXCLUSIVELY REPONSIBLE FOR, AND CLIENT SHALL INDEMNIFY, DEFEND, AND HOLD ARCANE STRATEGIES, AND IT’S OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST, ANY CLAIMS, SUITS, AND ACTIONS, AND ANY LOSSES, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES), ARISING OR RESULTING FROM: (A) ANY ACCESS OR CHANGES TO, USE OF, OR FAILURES OF, ANY COVERED DEVICES OR OTHER RELEVANT RESOURCES BY ANYONE OTHER THAN ARCANE STRATEGIES OR THIRD PARTIES UNDER ITS DIRECTION OR CONTROL; (B) ANY THIRD-PARTY PRODUCTS OR SERVICES; (C) ANY CLIENT DATA; OR (D) ANY ACTIONS OR OMISSIONS OF ANYONE OTHER THAN ARCANE STRATEGIES OR THIRD PARTIES UNDER ITS DIRECTION OR CONTROL.
12. EXPORT MATTERS. The Services may utilize or include software and technology that are subject to export control laws and regulations of the United States and other countries, including, but not limited to, the United States Export Administration Act and its associated regulations. Client shall not possess, use, import, export, release, or resell (and Client shall not permit the possession, use, importation, exportation, or resale of) any Services, or any information or technical data (either directly or indirectly) provided by Arcane Strategies to Client under the Agreement, in any manner which would cause Arcane Strategies to breach any applicable export control laws, rules, or regulations of the United States or any other jurisdiction. Client shall not provide administrative access to, or permit the use of, any Services by any person or entity that is located in, or a national of, any country to which imports or exports are then embargoed or highly restricted under United States export control laws, rules, or regulations. Client shall comply with all applicable export control laws, regulations, and rules, and shall promptly take any legally required actions (including, but not limited to, obtaining any necessary export licenses or other governmental approvals), prior to exporting, re-exporting, releasing, or otherwise making the Services, or any software, technology, information, or technical data, available outside of the United States.
13. CONFIDENTIAL INFORMATION
13.1 Definition. As used herein, “Confidential Information” means, with respect to either party, any nonpublic information (in any form or medium) of such party which is disclosed to the other party in connection with the Agreement and which either is marked or labelled as “confidential” or “proprietary” or would, given its nature or the circumstances of disclosure, reasonably be understood or expected to be confidential or proprietary. Without limiting the foregoing, Confidential Information includes, but is not limited to: (a) with respect to either party, the terms of the Agreement and any nonpublic information pertaining to such party or its business operations, products, services, plans, software, systems, data, processes, methods, trade secrets, financials, customers, personnel, or suppliers; (b) with respect to Client, any Client Data; (c) with respect to Arcane Strategies, the Services, any unpublished pricing or rates, and any audit and security reports. Notwithstanding the foregoing, Confidential Information shall not include any information which: (i) is or becomes publicly known or in the public domain through no act, omission, or breach of the Agreement by the receiving Party; (ii) is in the receiving party’s lawful possession, without obligations of confidentiality, prior to disclosure hereunder; (iii) is rightfully disclosed to the receiving party, without obligations of confidentiality, by a third party entitled to make such disclosure; or (iv) is independently developed by the receiving party, without use of or reference to any of the other party’s Confidential Information.
13.2 Restrictions. Neither party shall use any of the other party’s Confidential Information except as necessary and appropriate in connection with its performance under the Agreement, the exercise of its rights under the Agreement, or as required by law. Each party shall maintain the confidentiality of the other party’s Confidential Information using at least the same measures and degree of care such party uses to protect its own information of similar nature, but not less than reasonable care. Except as expressly permitted herein, neither party may disclose any Confidential Information of the other party to any third party, except to its affiliates, personnel, third-party contractors and suppliers, professional advisors, agents, and representatives that: (a) reasonably need access to such Confidential Information to fulfill their duties and obligations to such party; and (b) are subject to legally binding obligations of confidentiality at least as stringent as those set forth herein. Each party may disclose Confidential Information of the other party: (i) to a law enforcement or government agency, if such party reasonably believes that the other party’s conduct may violate applicable criminal law; and (ii) to the extent that such disclosure is required or compelled by a governmental authority or an order of a court of competent jurisdiction, provided that such party, unless prohibited by law, promptly notifies the other party in writing and in advance of the required disclosure and, at the other party’s written request and expense, reasonably cooperates with and assists the other party in seeking to contest, protect, or limit such disclosure (e.g., in obtaining a protective order or confidentiality agreement). As between the parties, each party’s Confidential Information shall be and remain solely and exclusively the property of such party. Each party acknowledges and agrees that monetary damages may be an inadequate remedy for any breach by it of this section, and that the other party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting bond or proving damages, in addition to any other available remedies. Upon expiration or termination of this Agreement or any Order, and upon either party’s written request from time to time, each party shall promptly and securely destroy or return to other party all Confidential Information of the other party then in such party’s possession or control, except that each party may retain any Confidential Information of the other party: (1) as necessary for such party’s continued performance under the Agreement; (2) as required by law; and (3) that is stored or held in such party’s archival or back-up systems, until deleted or destroyed in accordance with such party’s reasonable data retention, archival, or backup policies that are consistent with industry standards. The obligations of this section shall survive any termination of the Agreement, and any termination or expiration of any Order, for the longest period of time permitted under applicable law.
13.3 Data Protection. Each party shall, in performance in connection with the Agreement, comply with any laws, rules, and regulations of any relevant jurisdiction which are applicable to such party, its business operations, or its performance under the Agreement, including, but not limited to, any applicable laws, rules, and regulations regarding the protection of personal or individually-identifiable information (“Personal Data”) in such party’s possession or control, or that it processes or transmits, in connection with the Agreement. Specifically, but without limiting the foregoing, Client shall comply with any applicable laws, rules, and regulations as they relate to Personal Data which Client or any of its users store, process, or transfer in connection with any Services. Client acknowledges and agrees that, subject to applicable law and the requirements of this paragraph and the rest of the Agreement, Arcane Strategies may provide its affiliates, personnel, and subcontractors located outside of the United States with access to Personal Data and Client Data which Client or its users store in connection with any Services, to the extent such access is required for such third parties to fulfill their respective obligations to Arcane Strategies in connection with the Agreement. For example, Arcane Strategies may provide its affiliates, personnel, and subcontractors located outside of the United States with access to Personal Data or Client Data as necessary for them to provide Services and support to Client outside of Arcane Strategies’s Support Hours in the United States.
14. LIMITATIONS OF LIABILITY
14.1 Cap on Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, WITHOUT PREJUDICE TO ARCANE STRATEGIES’S RIGHT TO FEES OR AMOUNTS PAYABLE FOR SERVICES RENDERED OR AS PROVIDED IN SECTION 10.2 (EFFECTS OF TERMINATION), EACH PARTY’S CUMULATIVE AND AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF CAUSE OF ACTION (WHETHER IN TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF CONTRACT OR WARRANTY, OR OTHERWISE), IS LIMITED TO AND SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT PAID BY CLIENT TO ARCANE STRATEGIES FOR OR WITH RESPECT TO THE APPLICABLE SERVICES OR ORDER(S) DIRECTLY GIVING RISE TO ANY SUCH LIABILITY DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE LAST EVENT GIVING RISE TO SUCH LIABLITY; AND (B) $1,000.
14.2 No Indirect Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR OR RELATING TO LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS, LOSS OF OPPORTUNITY, DIMINUTION IN VALUE, COSTS OF COVER OR DELAY, OR INCREASED COSTS OR EXPENSES), WHATSOEVER AND HOWSOEVER ARISING (WHETHER IN CONNECTION WITH THE PERFORMANCE, NON-PERFORMANCE, OR DELAYED PERFORMANCE OF ANY SERVICES OR OTHERWISE), IN CONNECTION WITH THIS AGREEMENT, EVEN IF THAT PARTY KNEW, WAS ADVISED OF, OR REASONABLY SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 Exclusions. NOTHING IN THE AGREEMENT LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR ANY CLAIMS AND DAMAGES TO THE EXTENT ARISING OR RESULTING FROM: (A) DEATH OR PERSONAL INJURY CAUSED BY THE ACTS OR OMISSIONS OF EITHER PARTY OR ANY THIRD PARTIES UNDER ITS DIRECTION OR CONTROL, TO THE EXTENT SUCH LIABILITY CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (B) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR VIOLATION OF APPLICABLE LAW.
14.4 Failure of Essential Purpose. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN TYPES OF DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. 14.5 Basis of the Bargain. THE PROVISIONS OF THIS SECTION 14 OF THESE GENERAL TERMS ARE ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN ARCANE STRATEGIES AND CLIENT, AND ARCANE STRATEGIES WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON THE TERMS OF THE AGREEMENT WITHOUT EACH SUCH PROVISION.
15.1 Indemnity. Client shall indemnify, defend, and hold harmless Arcane Strategies and its affiliates, and their respective directors, officers, members, managers, personnel, subcontractors, agents, and representatives, from and against all claims, suits, and actions (“Claims”), and any associated liabilities, damages, losses, judgments, settlements, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and court costs), arising out of or related to: (a) any alleged breach by Client (or any third party under the direction or control of Client) of the Agreement or of any contract with any third party (e.g., a Hosting Provider, Licensor, other third-party supplier of Client’s, or an employee of Client’s); (b) Client’s or any user’s use of any Services, or any acts or omissions of Client, any user, or any other third party not under the direction or control of Arcane Strategies in connection with the provision of any Services, even if such acts or omissions were not authorized by Client; (c) any negligence, willful misconduct, fraud, or violation of applicable laws or regulations by Client or any third party under its direction or control; or (d) any alleged violation, infringement, or misappropriation of any intellectual property or proprietary rights, or any other rights, of any third party by Client or any materials or resources provided or made available by Client to Arcane Strategies under the Agreement (including, but not limited to, any Covered Devices and Application Software).
15.2 Procedures. With regard to any Claim subject to indemnification pursuant to the immediately preceding paragraph, Arcane Strategies will: (a) promptly notify Client upon becoming aware of the Claim (except that any failure or delay in providing such notification shall reduce Arcane Strategies’s and the other indemnitees’ rights to, and Client’s obligations of, defense and indemnification only to the extent Client is legally prejudiced thereby); (b) allow Client to solely control the defense and settlement of the Claim (except that if Client fails to do so in a timely manner, Arcane Strategies may defend and settle the Claim, at Client’s expense); and (c) reasonably cooperate with Client regarding such Claim, at Client’s reasonable written request and expense. Arcane Strategies may participate in (but not control, except as otherwise provided above) the defense of any Claim, at its expense, with counsel of its choice. Client shall not settle or compromise any Claim in any manner that imposes any obligations upon Arcane Strategies or any other indemnitee, or that does not fully release Arcane Strategies and the other indemnitees from liability, without the prior written consent of Arcane Strategies.
15.3 Infringement Claims. If Arcane Strategies or Client becomes subject to a third-party claim that any Services, when used in accordance with the Agreement, violate, infringe, or constitute a misappropriation of any intellectual property rights of any third party, and Arcane Strategies is not reasonably able to, on commercially reasonable terms, replace or modify the Services to making them non-infringing or obtain a license or rights to permit continued use the allegedly infringing materials in the provision and use of the Services, then Arcane Strategies may, in its discretion, terminate the applicable Services or Order(s) upon providing written notice thereof to Client, and Arcane Strategies shall not have any liability on account of such termination, except that Arcane Strategies shall refund to Client, on an appropriately prorated basis where applicable, any amounts prepaid by Client for periods of time after, or Services not yet performed through, the effective date of termination. This paragraph provides Client’s sole and exclusive remedies, and Arcane Strategies’s sole and exclusive obligations and liability, for and with respect to any claims that any Services or any other materials provided by Arcane Strategies under the Agreement violate, infringe, or constitute a misappropriation of any intellectual property rights of any third party.
15.4 Insurance. As the terms of the Agreement express the agreed upon allocation of risk between the parties, each party shall, throughout the term of the Agreement, at its sole expense, maintain such insurance coverage as it reasonably deems appropriate to protect against risks and potential liability arising in connection with the Agreement and any Services. Each party is responsible for making its own arrangements in obtaining such insurance and protecting itself from potential liability.
16. INTELLECTUAL PROPERTY
16.1 Services. Subject to Client’s payment of the applicable fees and Client’s compliance with all other terms and conditions of the Agreement, Arcane Strategies hereby grants Client a non-exclusive, non-transferable right to access and use the Services during any applicable Order Term, in accordance with the Agreement, solely for Client’s internal business purposes. Except for the rights expressly granted to Client in the Agreement, as between the parties, Arcane Strategies owns and shall retain all right, title, and interest (including, but not limited to, all intellectual property rights) in and to the Services, any related documentation, any other materials and deliverables provided by Arcane Strategies under the Agreement, and any modifications, customizations, enhancements, and other derivative works to any of the foregoing. Arcane Strategies may use and provide to third parties products and services that are similar to the Services provided to Client hereunder, and Arcane Strategies may use in its engagements with others any knowledge, skills, experience, ideas, concepts, know-how, code, materials, techniques, and processes developed, used, or gained in the provision of the Services under the Agreement, provided that, in each case, no Confidential Information of Client is thereby disclosed.
16.2 Client Data. Arcane Strategies acknowledges that, as between the parties, Client owns and shall retain all right, title, and interest (including, but not limited to, all intellectual property rights) in and to the Client Data. Client hereby grants Arcane Strategies a non-exclusive, royalty-free, worldwide license to access, reproduce, distribute, use, and display Client Data, and to perform any other acts with respect to Client Data, as are necessary or appropriate for Arcane Strategies to provide the Services and other fulfill its obligations, and exercise its rights, under the Agreement.
16.3 Feedback. Client hereby grants to Arcane Strategies an irrevocable, worldwide, fully-paid, royalty-free, perpetual license and right to use, as Arcane Strategies deems appropriate from time to time, any suggestions, enhancement requests, recommendations or other feedback provided in any form or medium (and regardless whether communicated in writing, orally, electronically, or otherwise) by Client or any users or other third parties relating to any Services (“Feedback”), to incorporate any such Feedback in any form into any existing or future Services or other materials, and to exercise any other rights with respect to any such Feedback, without restriction or obligation to Client, provided that Arcane Strategies removes from any Feedback any non-anonymized Client Data and any other information that identifies, or that would provide a reasonable basis to identify, Client, any of its products or services, or any individual.
16.4 Reservation of Rights. Except for any rights expressly granted in the Agreement or as expressly otherwise agreed by the parties in writing: (a) as between the parties, each party shall retain ownership of all property and materials of such party (including, but not limited to, with respect to Arcane Strategies, the Services, and with respect to Client, the Client Data) and all related intellectual property and proprietary rights; (b) neither party acquires any ownership rights or interests in or to any property or materials of the other party; (c) any intellectual property and other deliverables and materials developed by Arcane Strategies, alone or jointly with others, in connection with performance under the Agreement (excluding any Client Data), and all related intellectual property and proprietary rights, shall solely and exclusively be owned by Arcane Strategies.
17.1 Governing Law and Forum. The Agreement shall be governed by and construed in accordance with the substantive laws of the United States of America and the State of Georgia, without regard to conflicts of laws provisions. The exclusive forum and venue for any claim or action brought in connection with the Agreement shall be the state and federal courts situated in Chatham County, Georgia, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Neither party may bring or assert any claim under the Agreement more than two (2) years after the last event giving rise to the claim occurred.
17.2 Entire Agreement. The Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter of the Agreement and supersedes and replaces any prior understanding or communication, written or oral. Client acknowledges and agrees that, in entering into the Agreement or any Order, it has not relied on any statement, promise, commitment, or representation not expressly set forth in the Agreement.
17.3 Amendments. Except as expressly otherwise provided in this Agreement, the Agreement and any Order may be amended only by a writing signed by duly authorized representatives of both parties. A then-existing Order may be amended and supplemented by a subsequently executed Order or by the exchange of written correspondence by duly authorized representatives of each of the parties (including, but not limited to with respect to Client, any Client Representative), including exchanges via electronic mail or the Ticketing System. The pre-printed terms on any Client purchase order or other Client business forms shall not constitute part of this Agreement.
17.4 Assignment; Subcontracting. Neither party may assign or transfer the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld), except that Arcane Strategies may assign this Agreement, without Client’s consent: (a) to a corporate affiliate of Arcane Strategies (b) to the successor in a merger, corporate reorganization, or business consolidation; or (c) in the event of a sale of all or substantially all of Arcane Strategies’s assets or equity interests. Arcane Strategies may transfer any Client Data and Confidential Information of Client’s to the assignee of Arcane Strategies in connection with a permitted assignment or transfer of the Agreement by Arcane Strategies. The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Arcane Strategies may use subcontractors and third-party service providers to perform all or any part of the Services, as it deems appropriate from time to time, but Arcane Strategies shall be and remain responsible for fulfilling all of its obligations under the Agreement and for any such subcontractors and third-party service providers, to the same extent as if Arcane Strategies performed the Services itself.
17.5 Order of Precedence. In the event and to the extent of any conflict or inconsistency between these General Terms and any Order, these General Terms shall prevail and control, unless the Order expressly references and modifies these General Terms with respect to such Order, in which case the modified provision shall control only with respect to the Order.
17.6 Severability. If any provision of the Agreement is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, it shall be reformed to the extent necessary to make it valid and enforceable but still consistent with the business and financial objectives of the parties reasonably inferable from the Agreement, and the rest of the Agreement shall remain in force and effect.
17.7 No Waiver. Any waiver of any breach or provision of this Agreement must be in a writing signed by the waiving party and shall be valid only with respect to the specific instance referenced therein. No waiver of any provision or breach of the Agreement shall be deemed or construed to be a waiver of any other provision or any subsequent breach.
17.8 Independent Contractors. The parties are independent contractors with respect to each other and the Agreement, and the Agreement does not create any partnership, joint venture, agency, fiduciary, or employment relationship between the parties. Except as expressly otherwise provided in the Agreement, neither party is an agent of the other party, and neither party has the right to bind the other party to any agreement with any third party.
17.9 Survival. The provisions of these General Terms, and the rights, duties, and obligations of the parties hereunder, which by their nature or terms may be reasonably inferred to have been intended to survive termination, cancellation, completion, or expiration of the Agreement or an applicable Order (including, but not necessarily limited to, those of Sections 8, 10.2, 11, 13, 14, 15, 16, and 17) shall so survive.
17.10 Execution. Any Order, and any amendment to the Agreement, may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute the same instrument. Each party agrees to be bound by its digital or electronic signature, whether transmitted in the form of an electronically scanned image (e.g., in .pdf form) or effected through means of e-signature technology, and each party agrees that it shall accept as valid any digital or electronic signature of the other party.
17.11 Publicity. Unless otherwise stated in this Agreement, Client agrees that Arcane Strategies may publish or publicly disclose the fact that it is providing Services to Client, and Arcane Strategies may use Client’s name and logo to identify Client as a customer of Arcane Strategies in promotional materials, including, but not limited to, press releases.
17.12 No Third-Party Beneficiaries. The provisions of the Agreement are for the sole benefit of Client and Arcane Strategies. Except as expressly provided herein, the Agreement neither confers any rights, benefits, or claims upon any person or entity not a party hereto nor precludes any actions against, or rights of recovery from, any persons or entities not parties hereto.
17.13 Force Majeure. Except for payment obligations, neither party shall be liable, or in breach of the Agreement, to the extent that any delay or failure in its performance under this Agreement results from causes beyond the party’s reasonable control (e.g., acts or omissions of the other party or third parties not under the direction or control of such party, fire, flood, and other natural disasters, terrorism, war, insurrection, strikes or labor interruptions, or Internet or third-party telecommunications or utility failures or interruptions).
17.14 Notices. Arcane Strategies’s routine communications regarding the Services may be posted on the Site or sent to the Client Representatives by electronic mail. Other routine administrative and operational communications may be exchanged by the parties via the Ticketing System, Service Requests, Support Requests, email, and other reasonable means. Except for the foregoing and as otherwise specified elsewhere in these General Terms, all notices, consents, and approvals required or desired to be given under the Agreement shall be in writing and shall be deemed to have been given (i) when delivered in person, (ii) upon delivery, or refusal of delivery, when mailed via registered or certified U.S. mail, return receipt requested, postage prepaid, or (iii) upon delivery by a nationally recognized overnight or express carrier with a reliable system for tracking delivery (with delivery charges prepaid), at, with respect to Arcane Strategies, the addresses set forth below and, with respect to Client, the address(es) of Client specified in an applicable Order, or such other addresses as are designated by a party in a notice sent in accordance with this section from time to time.
Attention: Legal and Receivables
7 E Congress St. #804 Savannah, GA 31401
With a copy via electronic mail to: email@example.com