IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY GENERATING AND ACCEPTING AN “ORDER FORM” THAT REFERENCES AND INCORPORATES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND PERMISISON TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES AND LICENSES PROVIDED BY ARJUNA SOLUTIONS, LLC.
You may not access the Services if You are Our direct competitor, except with our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.
This Agreement was last updated on January 19, 2018. It is effective between You and Us as of the date of You Accepting this Agreement.
1.1 Applicability. This Agreement shall govern Your acquisition and use of Services and/or
Licenses provided by Arjuna and the rights, obligations and remedies therein.
1.2.1 Accept. By clicking a box indicating Your acceptance, or by generating and accepting an Order Form referencing and incorporating this Agreement, You agree, to the terms of this Agreement.
18.104.22.168. Ancillary Agreements. This Agreement shall govern any ancillary agreement, which by its terms, references or incorporates this Agreement.
22.214.171.124. Prior Ancillary Agreements. Any ancillary agreements in effect at the time of Your acceptance of this Agreement, including but not limited to, any Statements of Work, Order Forms, Consulting Agreements and the like, which were governed by a superseded agreement shall from the date of your acceptance of this Agreement, be governed by and be incorporated into this Agreement.
126.96.36.199. Conflict. If any portion of any ancillary agreement is inconsistent or in conflict with all or any portion(s) of this Agreement, the terms of this Agreement shall take precedence over any such conflicting or inconsistent term(s) of the relevant ancillary agreement with the exception that details regarding the scope of the Purchased Services and/or Licenses, such as the length of any subscription or other Purchased Service, cancellation terms, payment terms and payment schedules, agreed upon in any such ancillary agreement, shall remain in force.
1.2.3 Modifications to the Agreement. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Agreement periodically. Such modifications shall be effective immediately upon posting the modified Agreement to Arjuna operated websites or Subscription Software. Your continued use of Arjuna Services following the posting of changes to this Agreement will mean You accept those changes.
Any capitalized term used in this Agreement which is not defined therein, shall have the
meaning ascribed to it in this Section 2 of the Agreement.
2.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct and indirect ownership or control of more than 50% of the voting interests of the subject entity.
2.3 “Arjuna”, “We”, “Us” or “Our” means Arjuna Solutions, LLC, a Delaware limited liability company with a principal business address of 2100 M St. NW, Ste. 10-316, Washington, DC 20037.
2.4 “Arjuna Intellectual Property” means any and all materials, data, information, knowledge, intellectual property, or other assets, whether tangible or otherwise, that Arjuna: (a) has any title, exclusive interest, ownership, or other property right in, and/or (b) exclusively: acquired, captured, conceptualized, conceived, created, designed, developed, discovered, employed, found, gained, generated, implemented, inspired, invented, leased, licensed, learned of, owned, paid for, produced, programmed, proposed, revealed, thought of, used or utilized by or on behalf of Arjuna, whether through Arjuna’s efforts, Affiliates, agents, contractors, directors, employees, members, officers, subsidiaries, or otherwise; and, further,
which expressly includes, but is not limited to:
2.4.1 Arjuna Confidential Information;
2.4.2 Arjuna Propriety Data Analysis and Processing Methods or any portion thereof;
2.4.5 Persanalytix® Platform;
2.4.7 Results Data;
2.4.8 Subscription Software;
2.4.9 Work Product;
2.4.10 ExactAsk and ExactForm;
2.4.11 Any patents, letters patent, patents pending, future patent applications or letters patent, trademarks, trademarks pending, future trademark applications, copyrights, works of authorship, and trade secrets; and
2.4.12 Any “Licensed Technology” licensed to Arjuna through a licensing agreement with Gatsby Technologies, LLC, which may or may not include some or all of the items aforementioned above. To be clear, Arjuna does not own any “Licensed Technology” and any right of Arjuna to said “Licensed Technology” emanates from the licensing agreement between Arjuna and Gatsby Technologies, LLC.
2.5 “Arjuna Proprietary Data Analysis and Processing Methods” means any and all applications, programs, software, source code, know-how, trade secret, hardware, formulae, algorithms, systems, methods, techniques, processes, designs, concepts and graphical user interfaces, or any portion or combination thereof, and all new versions, updates, revisions, improvements and modifications of the foregoing that are owned, produced, developed, discovered, acquired, conceived, created, generated, gained, conceptualized, licensed or leased by or on behalf of Arjuna Solutions, LLC, for:
2.5.1 the provision of any and all Services or Licenses; or
2.5.2 for the purpose of finding, discovering, revealing, capturing, collecting, acquiring,
harvesting, aggregating, compiling, conceiving, creating, generating, extracting, transferring, loading, importing, migrating, transitioning, replicating, reproducing, normalizing, standardizing, mapping, matching, grouping, clustering, scaling, formatting, cleaning-up, fixing, unifying, organizing, computing, analyzing (whether mathematically, statistically,
computationally, quantitatively, qualitatively, subjectively, objectively, or otherwise), processing, weighting, reducing, examining, evaluating, comparing, conceptualizing, interpreting, translating, converting, explaining, modifying, hosting, managing, storing, securing, visualizing, accessing, presenting (whether orally, graphically, pictorially, interactively, or in writing or through one or more computer programs or interfaces) and/or manipulating data.
2.6 “Authorized User” means an individual person authorized to access the Subscription Software which shall be any individual person who is (a) a full-time employee of You; (b) is not a Third Party; (c) has been authorized and invited by Your Authorized Representative(s) to access the Subscription Software; and (d) has registered with the Subscription Software and created a unique Personal Identification Number (“PIN”), which shall not be shared with any other individual whatsoever.
2.7 “Disclosing Party” has the meaning ascribed to it in Section 8.1 of this Agreement.
2.8 “Documentation” means any written material or other works of authorship produced,
written or otherwise created by Arjuna or on behalf of Arjuna, such as training, support, and marketing manuals, guides, brochures, videos, or other materials related, directly or indirectly, to a Service.
2.9 “Fees” means any compensation, Reimbursable Expenses, or other amounts, whether in the form of cash, goods, services, or otherwise, owed to Arjuna by You for the purchase of Services and/or Licenses as is prescribed in the applicable Order Form.
2.10 “Invention” or “Inventions” means any idea, design, concept, technique, method, process, source code, software, know-how, trade secret, improvement, or discovery proposed, owned, developed, created, discovered, utilized, or licensed by, or on behalf of, Arjuna.
2.11 “Laws” mean any and all federal, state and local laws, codes, regulations and ordinances (including, but not limited to, all Laws related to privacy, data collection, and data protection).
2.13 “Malicious Code” means code, files, scripts, agents, software or programs intended to do harm, including, but not limited to, for example, viruses, worms, time bombs and Trojan horses.
2.14 “Order Form” means an ordering document specifying the Services purchased by You from Us and the Licenses to be granted under the terms of the Agreement, including the payment terms and obligations for the Purchased Services and/or Licenses. By generating
and accepting an Order Form incorporating the terms hereunder, You agree to be bound by the terms of this Agreement and to have the Order Form be governed by this Agreement. The definition of Order Form shall include Statements of Work incorporated into this Agreement by the terms of Section 1.2 herein.
2.15 “Prediction” means any result or output of the Subscription Software.
2.16 “Receiving Party” has the meaning ascribed to it in Section 8.1 of this Agreement.
2.17 “Reimbursable Expenses” means expenses for which Arjuna is entitled to reimbursement from You pursuant to the terms of this Agreement.
2.18 “Report” means the visualization or presentation to You, through the Subscription Software, Documentation or otherwise, of Your Data, Results Data and/or changes, modifications or updates to the foregoing.
2.19 “Results Data” means the results and output of the application of Arjuna Proprietary Data Analysis and Processing Methods on Your Data.
2.20 “Run” or “Predictive Run” means the intake and processing or re-intake and reprocessing of Your Data through the application of Arjuna Proprietary Data Analysis and Processing Methods for the purpose of creating or updating Results Data.
2.21 “Services” means access to the Subscription Software and/or any other particular service or set of services offered, rendered or provided by Arjuna.
2.21.1 “Consulting Services” means the provision of advice, information and guidance regarding the building of, deployment and/or use of data processing, data analysis and analytics strategies, systems and methods relating to Client specified needs on an ongoing, as requested basis.
2.21.2. “Purchased Services” means the Services purchased by You.
2.22 “Subscription Software” means the online, Web-based data management, analysis, marketing tools, application and software provided by Us, including but not limited to any graphical user interface, the Persanalytix® Platform, ExactAsk, ExactForm or any Third Party application, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Arjuna provides as a Service via remote electronic access, for use by You or Licensees, if applicable.
2.23 “Supplemental Data” means any information, data, or data set(s) that is produced, discovered, revealed, captured, acquired, transferred, owned, leased, licensed, possessed, conceived, created, generated, compiled, replicated, formatted, cleaned-up, unified, processed, hosted, managed, stored and/or secured by Arjuna independently or provided or otherwise made available to Arjuna through a Third Party. Supplemental Data does not include Your Data.
2.24 “Surcharges” means any additional Fees over and above base charges for Services and/or Licenses, including, but not limited to those Fees charged in addition to Fees for subscriptions.
2.25 “Third Party” means any party other than You, Your Affiliates or Arjuna.
2.26 "Third Party Application(s)" means any non-Arjuna application, software, software-as-
service, program, database, files, website, system or the like.
2.27 “You”, “Your” or “Client” means the individual, company and/or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2.28 “Your Data” means any and all information, data, or data set(s) provided or otherwise made available to Arjuna by You (or by or through a Third Party on behalf of You) for the purpose of Arjuna rendering Services to You and which Arjuna actually takes possession of, provided, however, that: (a) any and all information, data or data set(s) that is known by, in the possession of Arjuna prior to being made available to Arjuna by You; or (b) is subsequently discovered, acquired or otherwise becomes independently available to Arjuna; or (c) is publicly available information; shall not be “Your Data” for purposes of the Agreement, irrespective of whether Arjuna also received such data from You (or by or through a Third Party on behalf of You).
2.29 “Work Product” means any and all work product of Arjuna including all: (a) Services; (b) Arjuna Intellectual Property; and (c) any and all knowledge or information gained whatsoever, including but not limited to, any and all conclusions, insights, trends, patterns, relationships, comparisons, correlations, characteristics, forecasts, predictions, propensities, probabilities, anomalies, models, profiles, or the lack thereof, that is acquired, captured, conceptualized, conceived, created, designed, developed, discovered, employed, found, gained, generated, implemented, inspired, invented, learned of, produced, programmed, proposed revealed, thought of, used or otherwise utilized as a result of working with data. For the avoidance of doubt, “Work Product” shall include any of the foregoing that may be derived, in whole or in part, directly or indirectly, from any Client Data or Client Confidential Information.
3. Free Trial
If You register on Our website for a free trial, We will make one or more Services and/or Licenses available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s) and/or License(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s) and/or License(s). Additional trial terms may appear on the trial registration page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
NOTWITHSTANDING SECTION 11 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, LIMITS OF LIABILITY AND DISCLAIMERS) OF THIS AGREEMENT, DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY
4. Our Responsibilities
4.1 Provision of Services and Licenses. We will (a) make the Services, Licenses and Subscription Software available to You and your Licensee (as applicable) pursuant to this Agreement and the applicable Order Form; and (b) provide Our standard support for the Services to You and each such Licensee at no additional charge, and/or upgraded support if purchased.
4.2 Subscription Software. We shall, in accordance with the terms of this Agreement, host, manage, and operate the Subscription Software for remote electronic access by You and your Licensee (as applicable). We may utilize Third-Party operated infrastructure to host, manage, or operate the Subscription Software.
4.2.1 We shall use commercially reasonable efforts to make the Subscription Software available 24 hours a day, 7 days a week, except for (i) planned downtime (of which We shall provide at least 8 hours electronic notice if possible and which We shall schedule, to the extent practicable, during the weekend hours between 6:00 p.m. Friday and 3:00 a.am Monday Eastern Standard Time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, natural disaster, inclement weather, civil unrest, war, act of terror, strike or other labor problem, Internet Service Provider (“ISP”) failure or delay, a Third-Party application, or denial of service attack.
4.2.2 We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction, unauthorized use, or unauthorized access to, or alteration of, any communications or postings by any Authorized User of the Subscription Software. We are not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, tablets, software, failure of email, messaging or other communication transmission on account of technical problems or traffic congestion on the internet or at the Subscription Software (or combinations thereof), including injury or damage to any user (including You or a Licensee, as applicable) or any other person or entity’s computer, tablet, mobile phone, network or other hardware or software, related to or resulting from accessing the Subscription Software and/or the Services rendered therein, and/or using or downloading any Subscription Software content.
4.3 Protection of Your Data.
4.3.1 We will maintain safeguards for the protection of the security, confidentiality and integrity of Your Data and that of your Licensee, as applicable, in accordance with Arjuna’s policies and procedures, which may be amended from time to time in Arjuna’s sole discretion. These policies and procedures will include, but will not be limited to, measures for governing access, use, modification or disclosure of Your Data. You hereby acknowledge and agree that Our personnel may, from time to time, access, use, or modify Your Data (a) to provide the Services and Licenses purchased; (b) to prevent or address service or technical issues; (c) to upgrade and test our systems; (d) as compelled by law; or (e) as You or your Licensee, as applicable, expressly permit in writing.
4.3.2 Throughout the term of this Agreement, and at all times in connection with its performance of Services hereunder, Arjuna agrees to (a) report to You any breach of security or unauthorized access to Your Data or Your Confidential Information that Arjuna knows of, and (b) use reasonable efforts to remedy the cause of such breach or unauthorized access in a manner intended to prevent a future breach or unauthorized access of the same kind.
4.4 Our Personnel. We will be responsible for the performance of Our personnel (including Arjuna employees and contractors) and their compliance with Our obligations under this Agreement.
5. Use of Services and Licenses
5.2 Usage Restrictions. Neither you nor a Licensee (as applicable) will (a) display, distribute, publish transfer or otherwise make any Service or License available to, or use any Service or License for the benefit of, anyone other than You, Authorized Users or a Licensee (as applicable), (b) sell, resell, license, sublicense, rent or lease any Service or License, or include any Service or License in a service bureau or outsourcing offering except to a Licensee (as applicable), (c) use or access a Service or License, to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third-Party privacy rights, (d) use a Service or License to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or Third-Party data contained therein, (f) attempt to gain unauthorized access to any Service or License in a way that circumvents a contractual usage limit, (g) permit direct or indirect access to or use of any Service or License in a way that circumvents a contractual usage limit,
(h) copy a Service of License or any part, feature, function or user interface thereof, (i) access any Service or License in order to build a competitive product or service, or (j) reverse engineer any Service (to the extent such restriction is permitted by law).
5.3 Usage Limits. Services and Licenses are subject to usage limits, including, for example, the quantities specified in an Order Form. Unless otherwise specified, (a) a quantity in an Order Form refers to Authorized Users, and the Service or License may not be accessed by more than that number of Authorized Users, (b) an Authorized User’s password, personal identification number (“PIN”), and/or unique URL may not be shared with any other individual, and (c) a limited number of Licensees (as identified in the Order Form, if applicable) to whom Predictions may be sublicensed under the terms of this Agreement. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services, Predictions and Licenses promptly upon Our request, and/or pay any invoice for excessive usage in accordance with Section 10 (Fees and Payment for Services). Any Prediction sublicensed hereunder to a Licensee (as applicable) may be used only once and must be used within the 12-month period beginning on the date an Order Form is accepted by Us.
5.4 Subscriptions. Unless otherwise provided in the applicable Order Form, any purchase of a License to access or use the Subscription Software is purchased as a subscription for the time period indicated in said Order Form. You hereby understand that We may, in Our sole discretion, delay the subscription period for reasons including, but not limited to: (a) a delay by You in providing Us with access to Your Data; (b) an increase in the amount of time necessary to integrate with, or connect to, or increase the quality of Data; or (c) any other cause or issues outside Our direct control.
5.5 Your Responsibilities. You will (a) be responsible for Authorized Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access or use of the Services or Licenses and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with any Documentation provided and applicable Laws, (e) comply with the terms of service of any Third Party applications with which You use the Services or Licenses, and (f) insure that Your Licensees (as applicable) abide by the terms of this Agreement.
6. Third Party Applications
Authorization. By accessing or logging into a Third Party Application through the Subscription Software, or by providing data to Arjuna downloaded or in any other way shape or form obtained a Third Party Application, You represent that You have proper permissions and authority to provide Arjuna with such data and You are authorizing Arjuna the use of such data for the provision of Services to You.
6.1 Compliance with Third Party Application Terms. YOU ARE SOLELY RESPONSIBLE FOR COMPLYING WITH THE TERMS OF SERVICE OF ANY THIRD PARTY APPLICATIONS
WITH WHICH YOU ACCESS THROUGH THE SUBSCRIPTION SOFTWARE. Arjuna makes no representations whatsoever regarding permission or authority to access any Third Party Application through the Subscription Software or otherwise, or regarding the provision of data from a Third Party Application to Arjuna by You.
6.2Arjuna Not Responsible for Third Party Applications. We may provide links or connections to Third Party Applications solely as a convenience to You. We exercise no control whatsoever over such non-Arjuna Applications and We are not responsible or liable for the availability thereof, or of the content therein, and we make no representations whatsoever regarding those Third Party Applications. ARJUNA IS NOT RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS INCURRED OR SUFFERED BY YOU OR ANY OTHER USER IN CONNECTION TO ACCESSING OR CONNECTIONG TO A THIRD PARTY APPLICATION, WHETHER OR NOT THROUGH A CONNECTION OR LINK PROVIDED BY ARJUNA. YOUR ACCESS AND USE OF THIRD PARTY APPLICATIONS AND/OR USE OF CONNECTIONS OR LINKS TO THIRD PARTY APPLICATIONS PROVIDED BY ARJUNA IS SOLELY AT YOUR OWN RISK.
7. Licenses, Ownership & Intellectual Property
7.1 Rights to Your Data and Your Confidential Information. All right, title, interest, ownership and other property rights in and to Your Data and Your Confidential Information are and shall remain vested solely and exclusively in You, and Arjuna shall have no rights to the same except as You grant to Arjuna in this Agreement.
7.1.1 License by You to Host Your Data. Subject to the terms of the Agreement, You hereby grant Arjuna a limited, royalty-free, fully paid, non-exclusive, license to host, copy, transmit, process and display Your Data as required to provide the Services and Licenses purchased under the applicable Order Form.
7.1.2 License by You to Present Your Data. Subject to the terms of the Agreement, You hereby grant Arjuna a limited, royalty-free, fully paid, non-exclusive, license to utilize Your Data in order to present You with data trending and analysis.
7.2 Rights to Arjuna Intellectual Property. All right, title, interest, ownership and other property rights in and to Arjuna Intellectual Property are and shall remain vested solely and exclusively in Arjuna, and You shall have no rights whatsoever with respect to the same except as We expressly grant to You in the Agreement.
7.2.1 Arjuna License. Unless otherwise provided in this Agreement or in the applicable Order Form, any License granted by Arjuna to You is a revocable, limited-scope and non- exclusive license and/or right to access certain Service(s) or Arjuna Intellectual Property related to the Services purchased by You in accordance with the applicable Order Form during the Term therein. Any breach of the License granted may result in immediate revocation of the License by and at the sole discretion of Arjuna. You may only sublicense Predictions to one or more Licensees as permitted in your Order Form in accordance with the terms of this Agreement.
7.2.2 License to Use Documentation and Reports. Arjuna hereby grants You a revocable limited scope license to use any Documentation or Reports provided to You or created exclusively for You by Us in accordance with this Agreement, during and after the Term herein. You may sublicense such Documentation and Reports to one or more of Licensees as permitted in your Order Form, in accordance with the terms of this Agreement.
7.2.3 Written Consent Required to Reproduce. Except as to a Licensee under the terms of this Agreement, without Arjuna’s express written consent, You shall not display, distribute, sell, assign, sublicense, publish, transfer or otherwise make the Service(s) or Arjuna Intellectual Property available to any Third Party, or reproduce, copy, modify, or create any derivative work therefrom.
7.2.4 Authorized Users Only. Except to your Licensees to whom you sublicense one or more of your Predictions, no License grants anyone other than Your Authorized Representative and/or Authorized Users access to Services or Arjuna Intellectual Property related to the Services purchased by the You.
7.3 Protection of Arjuna Intellectual Property.
You recognize and acknowledge that Arjuna Intellectual Property constitutes a
protectable business interest of Arjuna and that any use or disclosure of any of the Arjuna Intellectual Property in a manner inconsistent with the provisions of the Agreement will cause irreparable damage to Arjuna. You further acknowledge that in the event of Your actual or threatened breach of Section 8 of this Agreement, Arjuna shall have no adequate remedy at law and shall be entitled to seek and obtain immediate injunctive and other equitable relief, without bond, without necessity of showing actual monetary damages and without notice to You.
7.4 Names, Logos and Trademarks. Except as expressly provided in the Agreement, neither You or We shall use the other’s name, logos, trademarks, service marks, trade names, seals, insignia, symbols, decorative designs, or other mark without the other’s prior written consent.
7.5 Reservation of Rights and No Implied Rights. Except for the limited rights provided in this Agreement or applicable Order Form, nothing contained in the Agreement shall be construed as granting Arjuna, You or any Third Party any right, title, license or interest whatsoever, in or to any Service, License, Confidential Information, Your Data, or Arjuna Intellectual Property, whether by implication, estoppel or otherwise.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether visually, orally, electronically or in writing, that is designated as confidential, or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure, or concerns matters of a proprietary nature to the Disclosing Party including, but not limited to, matters related, directly or indirectly, to
letters patent, patents-pending, future patent applications or letters patent, trademarks, current or future applications for trademarks, Inventions, ideas, trade secrets, know-how, methods, techniques, schematics, processes, engineering concepts and notes, products, product specifications, software (in both source code and object code form), devices, prototypes, presentations, memoranda, written descriptions, drawings, wireframes, flowcharts, diagrams, samples, compositions, demonstrations, research and development efforts, audio and visual recordings, logos, business activities and operations, business plans, financial information, pricing arrangements, marketing materials, and other offers. “Confidential Information” additionally includes any information relating to individual or groups of people (including, for instance, but not limited to prospects, customers, donors, volunteers, clients, employees, directors, investors, potential investors, etc.).
Exclusions from Definition of Confidential Information. “Confidential Information” does not include information that the recipient can establish is or was, without the fault or omission of the Receiving Party or a violation by any party to any confidentiality agreement, (a) in the public domain, (b) known by the recipient prior to disclosure by the Disclosing Party to the Receiving Party without breach of any obligation owed to the Disclosing Party, (c) is received from a Third Party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. A Receiving Party shall not disclose or allow others to disclose a Disclosing Party’s Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement to any Third Party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this Section 8.3.
8.3 Permitted Disclosure of Confidential Information. Notwithstanding Section 8.3 above, a Receiving Party may disclose a Disclosing Party’s Confidential Information (a) to a Receiving Party’s or its Affiliates employees, contractors, advisors, agents (including attorneys, accountants, bankers and investors) who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein; or (b) to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that
8.4 Remedy. The Receiving Party hereby acknowledges that disclosure of Confidential Information in violation of Section 8 of this Agreement would cause substantial harm to the Disclosing Party. In the event of an actual or threatened breach of Section 8 of this Agreement, the Disclosing Party shall be entitled to seek and obtain immediate injunctive relief and other equitable relief, without bond, as a nonexclusive remedy and without necessity of showing actual monetary damages and without notice to the Receiving Party.
9.1 Term of the Agreement. This Agreement commences on the date You first accept it and
continues as long as you have access to, and use of Arjuna provided Services and/or Licenses.
9.2 Term of Services and Licenses. The term of any Service, License or subscription shall be as specified in the applicable Order Form.
9.3 Your Right to Terminate.
9.3.1 Termination for Cause. You may terminate an Order Form for cause upon thirty (30) days written notice to Us of a material breach of the Agreement if such breach remains uncured at the expiration of such period. In no event will Termination for Cause relieve You of Your obligation to pay any Fees payable to Us for the period prior to the effective date of termination. Notwithstanding the foregoing, You may terminate an Order Form in the case of an actual or threatened breach of Section 8 of this Agreement relating to Your donor information.
9.3.2 Termination Without Cause. Subscriptions of Services and/or Licenses for one year or less are non- cancellable. For all other subscriptions, Services and/or Licenses purchased, You may terminate an Order Form without cause with ninety (90) days written notice to Arjuna. This Agreement shall be terminated ninety (90) days from receipt of the written notice (“Termination Date”).
9.3.3 Your Payment Obligations Upon Termination Without Cause. In no event will You be relieved of Your obligation to pay any Fees payable to Us for subscriptions, Services and/or Licenses of a term of one year or less. For all other subscriptions, Services and/or Licenses, following the termination of an Order Form without cause by You, You are obligated to pay any and all Fees covering the term of the Order Form pro-rated up and until the Termination Date. Additionally, You will be required to pay a Cancellation Fee amounting to twenty percent (20%) of the Fees covering the remainder of the term of the Order Form(s) cancelled.
9.4 Our Right to Terminate. Arjuna reserves the right to terminate and Order Form or this Agreement at any time for any reason upon thirty (30) days written notice to You.
9.4.1 Our Obligations Upon Termination. Following the termination of an Order Form by Us, We shall be obligated to continue to provide the Services and Licenses purchased in
accordance with the applicable Order Form up and until the Termination Date. We will refund You any prepaid Fees covering the remainder of the term of all Order Forms after the Termination Date. In no event will a Termination relieve You of Your obligation to pay any Fees payable to Us for the period prior to the Termination Date.
9.4.2 Reservation of Right to Terminate Users. We reserve the right to terminate or cancel particular Authorized Users access, subscription or authorization at any time for any reason. Such a termination of a particular user is not a Termination of an Order Form or this Agreement.
9.5 Surviving Provisions. The Sections titled “Licenses, Ownership and Intellectual Property”, “Protecting Your Data”, “Confidentiality”, “Third Party Applications”, “Fees and Payment for Services”, “Term”, "Representations, Warranties, Exclusive Remedies, Limits of Liability and Disclaimers", "Mandatory and Binding Arbitration", "Governing Law" and "Third-Party Beneficiaries" shall survive the termination or expiration of this Agreement.
10. Fees and Payment for Services
10.1 Fees. You will pay all Fees specified in the Order Form and according to the payment schedule provided therein. Except as otherwise specified herein payment obligations are non cancelable and fees paid are non-refundable.
10.2 Invoicing and Payment. You will be invoiced in advance according to the payment schedule provided in the Order Form. Unless otherwise stated in the Order Form, all invoice payment terms are Net 30 from the invoice date. If You provide credit card information to Us, You authorize Us to charge such credit card for all Fees due pursuant to the payment schedule and Services purchased as listed in the Order Form, including any automatic subscription renewal. Such charges shall be made in advance in accordance with the payment schedule listed on the Order Form. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
10.3 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full. We reserve the right to suspend access to Subscription Services or Predictions to a Licensee for Your unpaid Fee obligations to Us without notice or liability to Your Licensee.
10.4 Accounts Past Due. If any invoiced amount is not received by Us within thirty (30) days past the due date, then without limiting Our rights or remedies, those charges may be subject to a monthly charge of one percent (1.0%), or the maximum permitted by law in the District of Columbia, whichever is less, until such invoices amounts are paid in full.
10.5 Payment Disputes. We will not exercise Our rights under Section 10.3 (Suspension of Service and Acceleration) or Section 10.4 (Accounts Past Due) above if You are disputing the
applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute
10.6 Taxes. Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 10.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
10.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
11. Representations, Warranties, Exclusive Remedies, Limits of Liability and Disclaimers
11.1 Representations. Each party represents to the other party that it a) has validly entered into this Agreement and has the legal power to do so, b) its performance hereunder shall comply with all applicable Laws,
11.2 Our Warranties. We warrant to You that Services provided under the Agreement will be performed in a professional manner in compliance with the scope described in the applicable Order Form. If You are dissatisfied with the Services provided by Us, You shall immediately escalate the issue you’re your representative, and if the issue is not resolved to the reasonable satisfaction of Client; same will be further escalated by You to Our highest executives. No further warranty is granted or implied beyond the scope of this Agreement.
11.3 Disclaimer. ARJUNA HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY WARRANTY OF ANY KIND OR NATURE, EITHER IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF NON-INGRINGEMENT, ACCURACY OF RESULTS, ACCURACY OF YOUR DATA, WORKMANLIKE EFFORT, LACK OF MALICIOUS CODE, AND LACK OF NEGLIGENCE, RELATED, DIRECTLY OR INDIRECTLY, TO THE SERVICES.
11.4 Limits of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOVER (INCLUDING LOSS OF PROFITS OR BUSINESS INTERUPTION) ARISING OUT OF OR CONNECTED WITH THIS OR ANY ANCILLARY AGREEMENT, THE USE, OR THE INABLITY TO USE, ANY OF THE SERVICES, DELIVERABLES OR LICENSES, OR A BREACH OF THIS AGREEMENT, WHETHER IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY.
11.5 Indemnification and Defense. You shall indemnify, defend (at no cost or expense to Arjuna) and hold Arjuna and its officers, directors, agents, employees, members and Affiliates harmless from any and all cost, damages, losses or liability arising out of any suit, action, demand, or alleged claim brought against Arjuna claiming that any data whatsoever provided by Client to Arjuna, including but not limited to Your Data, and Your Confidential Information provided or made available by or on behalf of You to Arjuna, or Arjuna’s use of same during the course of providing, performing or rendering the Services results in an actual or alleged (a) violation, infringement, or misappropriation of any property or other legal right of a Third Party, or (b) violation of one or more Laws.
12. General Terms
12.1 Entire Agreement. In accordance with Section 1.2.2 herein, the Agreement constitutes the entire understanding between the Parties hereto, and supersedes any and all prior or contemporaneous representations, understandings and agreements between the Parties with respect to the subject matter hereof. Neither of the Parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein or as may be expressly set forth in the Agreement.
12.2 Waiver. Waiver of any provision, right, or obligation created pursuant to the Agreement shall not be effective without the express written consent of an Authorized Representative of the waiving Party. Any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The failure to enforce any right hereunder shall not alone constitute a waiver of same.
12.3 Mandatory and Binding Arbitration.
12.3.1 Any controversy, claim, or dispute arising out of or relating to the Agreement, or any actual or alleged breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. There shall be a single arbitrator appointed who shall conduct appropriate proceedings in Washington, DC if Arjuna is the complaining party and Boston, Massachusetts if You are the complaining party.
12.3.2 Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction and shall be binding on the Parties. Such judgment shall include an award of fees and costs. Arbitrations shall be sole means of resolving all such disputes.
12.4 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (a) personal delivery, (b) the second business day after mailing, (c) the second day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided that a confirmation copy is sent by First Class mail, postage prepaid and further provided that email shall not to sufficient for notices of termination, breach of this Agreement, or an indemnifiable claim). Billing related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant
Authorized Representative designated by You, with a copy addressed to General Counsel, WGBH Educational Foundation, One Guest Street, Boston, MA 02135 in the case of a notice of breach, an event that might require defense or indemnification of Arjuna or of a liability for WGBH, or a demand for arbitration. Written Notices to Arjuna should be sent to:
Arjuna Solutions, LLC
2100 M St. NW, Ste. 170-316 Washington, DC 20037
12.5 Severability. In the event that any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will be construed, limited or, if necessary, stricken to the extent necessary to eliminate such invalidity or unenforceability. The remainder of such agreement shall remain valid and enforceable according to its terms and Arjuna shall, in good faith, provide a valid, enforceable substitute provision that most nearly reflects the original intent of the original provision.
12.6 Governing Law. The validity, operation, interpretation, and construction of the Agreement shall be governed by the laws of Washington, D.C., without giving effect to its choice of laws provisions.
12.7 Assignment. Except as otherwise provided herein, You may not assign, transfer or otherwise share the benefits or obligations of the Agreement. You may not delegate any of its obligations under the Agreement without Arjuna’s express, prior written consent, which consent may be withheld in Arjuna’s sole and absolute discretion. In the event that the Agreement is duly assigned by You in accordance with the terms and conditions of this Agreement, such successor shall be substituted for You with only those modifications which are necessary to reflect the assignment. In the case You are merged or acquired by another entity or person, this Agreement is binding upon, and will inure to the benefits of, the surviving entity or new owner, which shall become “You” hereunder. You shall be considered Acquired for the purposes of this section if (a) a change in control occurs in which fifty percent or more of the equity or voting power of You changes hands; (b) a sale or transfer of substantially all of the assets of You to an Affiliated or Third Party; or (c) You legally change your name.
12.8 Third Party Beneficiaries. The Agreement is by and between You and Us. Nothing in the Agreement, express or implied, is intended to or shall confer upon any other person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.