Terms of Service
By signing up or by otherwise exercising any rights provided below to use the Arrikto Software (as defined below) offered by Arrikto Inc., a Delaware corporation with an office at 60 E 3rd Ave, Suite 262, San Mateo, CA 94401 (“Arrikto”) including, for example, by accessing or using the Arrikto Software, this entity, individual or organization (“Customer”) consents to be bound by this Agreement, or, if applicable, by the terms of a currently effective written agreement regarding the use of the Arrikto Software and signed by an authorized agent of Customer and by Arrikto.
1.PRODUCT DESCRIPTION.
During the Free Trial Term (if applicable), the Customer shall have access to such Arrikto’s commercial Free Trial services as Arrikto determines from time to time (the “Free Trial Services”). Such Free Trial Services may include Arrikto’s “MiniKF” or “Kubeflow as a Service” branded offering. Customer may, at any time, become a paying client and receive additional services if Customer and Arrikto each execute an order form (an “Order Form”) describing the services that Customer would like to receive and the fees for such services (the “Paid Services”). For purposes of this Terms of Use, the term “Services” shall mean the Free Trial Services or the Paid Services, as applicable.
2. SOFTWARE LICENSE; PROFESSIONAL SERVICES.
2.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, Arrikto hereby grants to Customer, during the License Term (as defined below), a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license (“Subscription License”) to access and use Arrikto’s application software product (whether deployed on a software-as-a-service (“SaaS”) basis or in an on-premise installation) (collectively, the “Software”) for internal business purposes only for the number of license units as specifically designated in the Order Form (“License Units”). For purposes hereof, the “License Term” of the Order Form is the term of the Order Form as specifically designated in such Order Form (unless earlier terminated in accordance with this Agreement). For the purpose of the Free Trial Period the license term is specified as 14 days. For the avoidance of doubt, Customer’s affiliates (and employees, contractors and agents thereof) shall not use the Software without Arrikto’ prior written consent. Any references in the Order Form to an “Agreement” or other similar term shall be deemed to refer to this Agreement.
2.2 SOFTWARE ACCESS. Arrikto will make its software available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Software during the License Term. For the purposes of the Free Trial period, acceptance of this Agreement starts the availability of the software access.
2.3 RESTRICTIONS ON USE. Except as otherwise expressly provided in this Agreement, Customer shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the Service; (b) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Service, or attempt to discover any source code or underlying algorithms or other operational mechanisms of the Service (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Arrikto); (d) modify, adapt, translate or create derivative works based on all or any part of the Service; (e) use any Third Party Software (as defined below) provided with the Service other than with the Service; (f) modify any proprietary rights notices that appear in the Service or components thereof; (g) publish the results of any benchmarking tests run on any Third Party Software; (h) use the Service in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 2.1 (License Grant); (i) use the Service in support of any nuclear proliferation, chemical weapon, biological weapon or missile proliferation activity; or (j) create an account, access, or use the Service in order to (1) monitor the Service’s availability, performance, or functionality for competitive purposes, (2) copy ideas, features, functions, or graphics, (3) develop competing products or services, or (4) perform any other form of competitive analysis, as determined by Arrikto in its sole discretion. Customer shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
2.4 UNAUTHORIZED USE. Customer shall notify Arrikto promptly of any unauthorized use or access of the Service (including unauthorized users or unauthorized disclosure of any password or account), or any other known or suspected breach of security or misuse of the Service. Customer is responsible for use of the Service (and all other acts or omissions) by its employees, contractors, affiliates or other users that it allows to use or access the Service.
2.5 SUPPORT. Subject to Customer’s payment of all fees set forth in the Order Form, Arrikto will provide reasonable technical support for the Service during the Term in accordance with Arrikto’ standard practice. All fees for such support are included in the fees for the Service. Further, notwithstanding anything herein to the contrary, Customer agrees to facilitate any connections and access necessary for Arrikto to (i) deliver, deploy and provide the Service as provided hereunder and (ii) to perform its obligations hereunder (including its support obligations).
2.6 PROFESSIONAL SERVICES. Arrikto may provide the professional services set forth in the Order Form (the “Professional Services”), which such services shall be subject to the additional terms and conditions in Addendum A.
3. FEES.
3.1 PRICING. For the purposes of the Free Trial Period, there is no charge during the specified 14 day initial trial period. Customer will be invoiced for those amounts and at those prices set forth in the Order Form (an “Invoice”). All fees shall be invoiced and pre-paid on an annual basis, unless otherwise specified in the Order Form. Fees do not include any customization of the Service (nor support for any such customizations, unless otherwise agreed in writing). If Customer’s usage of the Service is in excess of the usage limitations or License Units set forth in the Order Form, Customer will be billed for those overages at a pro-rated amount for the remainder of the applicable License Term under the Order Form, based on Arrikto’s then-current standard pricing. If Arrikto believes in good faith that Customer’s usage of the Service exceeds the usage limitations set forth on the Order Form, Customer agrees to allow Arrikto to audit Customer’s use of the Service (not more frequently than twice per calendar year and at Arrikto’s sole expense), upon at least seven (7) days’ notice, for the sole purpose of determining Customer’s actual Service use, using a commercially reasonable auditing procedure. Customer acknowledges that purchases made under this Agreement are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by Arrikto regarding future functionality or features of the Service.
3.2 PAYMENTS.Payment Terms. There shall be no charge during the first 14 days of the Free Trial Service. At the end of the 14 day trial period, the trial will conclude. Arrikto at its discretion may extend the trial on a case-by-case basis. For the Paid Services, Arrikto will invoice Customer for the annual license fee set in the Order Form (the “Annual License Fee”) for the upcoming subscription year immediately prior to or in the beginning of such subscription year. Customer shall pay the Annual License Fee and any System Set-Up Services Fees or Professional Services Fees (each as defined below) set forth in an Order Form net thirty (30)-days from the invoice date.
All fees for the Paid Services will be expressed in U.S. dollars and will not include taxes unless a separate line item is added for taxes on the invoice. If Customer is a tax exempt organization, Arrikto requires a tax exempt certificate prior to Arrikto providing an invoice in order to exclude any applicable taxes from such invoice.
Customer shall pay Invoices under the Order Form within thirty (30) days of the receipt of such Invoice, unless otherwise specified in the Order Form (the “Invoice Due Date”). If Customer reasonably disputes any Invoice, (i) Customer shall provide Arrikto with written notice of such dispute, including the grounds therefor (a “Dispute Notice”) prior to the Invoice Due Date, (ii) Customer and Arrikto shall, for a period of fifteen (15) days following Arrikto’s receipt of such Dispute Notice, negotiate in good faith to resolve the dispute, and (iii) if such dispute remains unresolved at the end of such period, the parties shall retain all of their respective rights under this Agreement. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except (a) for amounts paid in error that are not actually due under this Agreement, and (b) as set forth in Sections 7.1 (Limited Warranty) and 8.1 (Indemnification by Arrikto). The fees paid by Customer are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on Arrikto’s income. Customer represents and warrants that the billing and contact information provided to Arrikto is complete and accurate, and Arrikto shall have no responsibility for any Invoices that are not received due to inaccurate or missing information provided by Customer. Customer shall pay interest on all payments not received by the Invoice Due Date at a rate of one percent (1%) per month or the maximum amount allowed by law, whichever is less. All amounts due under this Agreement and the Order Form shall be paid by Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If requested by Arrikto, Customer will obtain and furnish to Arrikto tax receipts or other certificates issued by the competent taxation office showing the payments of the withholding tax within a reasonable time after payment. Following written notice, Arrikto shall be entitled to suspend Customer’s use of and access to the Service if payments are not received within thirty (30) days of the Invoice Due Date.
4. CONFIDENTIALITY.
4.1 SCOPE AND RESTRICTIONS. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, the terms of the Order Form, the Service, any technical or other documentation relating to the Service, logins, passwords and other access codes and any and all information regarding Arrikto’ business, products and services are the Confidential Information of Arrikto. Any information disclosed by Customer, including, without limitation, any and all information regarding Customer’s business, products and services is considered the Confidential Information of Customer. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 4; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
4.2 EQUITABLE RELIEF. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information will cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
5. PROPRIETARY RIGHTS.
Arrikto owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Service (and all derivatives, improvements or enhancements thereto). Customer acknowledges that the rights granted under this Agreement do not provide Customer with title to or ownership of the Service, in whole or in part. Certain “free” or “open source” based software (the “FOSS Software”) and third party software included with the Service (the “Third Party Software”) is shipped with the Service but is not considered part of the Service hereunder. A list of the FOSS Software and Third Party Software is set forth on the webpage located at http://docs.arrikto.com/ (the “FOSS Webpage”). With respect to Third Party Software included with the Service, such Third Party Software suppliers are third party beneficiaries of this Agreement. Customer’s use of such FOSS Software is subject to the terms of the licenses set forth on the FOSS Webpage. The Service and Third Party Software may only be used and accessed by Customer as prescribed by the Arrikto documentation located at http://docs.arrikto.com/ as may be updated from time to time by Arrikto (the “Documentation”).
6. TERM AND TERMINATION.
Customer’s subscription for the Free Trial Services will begin on the Effective Date and terminate on the earlier of (a) Customer subscribing to the Paid Services and (B) the termination of this Agreement pursuant to this Section 6. Customer’s subscription for the Paid Services shall begin on the date of execution of an Order Form pursuant to Section 2 and shall terminate on the date of termination of this Agreement pursuant to this Section 2 or Section 3 (the “Paid Services Term” and, together with the Free Trial Term including any Renewal Terms, the “Term”). The Free Trial Term or the Paid Services Term, as applicable, shall automatically renew at the end of the Initial Term and each subsequent term (each a “Renewal Term”), unless at least ten (10) days before expiration either party sends the other party a written termination notice. Each Renewal Term will last for one (1) year.
Termination. During the Free Trial Term, Arrikto or Customer shall have the right to terminate the Free Trial Term at any time, upon providing the other party with at least ten (10) days written notice. In addition, Arrikto may terminate the Free Trial Term immediately by providing written notice if Customer commits a material breach of this Agreement. Upon any termination of the Free Trial Term, Customer shall immediately cease all use of the Free Trial Services and Arrikto shall revoke all passwords and access to the Free Trial Services. During the Paid Services Term, either party may terminate this Agreement before the end of the Initial Term or any subsequent Renewal Term only if the other party has breached a material term of the Agreement, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. If Arrikto commits a material breach and Customer terminates the Agreement as a result of such material breach, Arrikto will refund an amount equal to one-twelfth of the Annual License Fee paid by Customer for the subscription year in which the termination occurs, multiplied by the number of full calendar months remaining in that subscription year. Upon any termination of the Paid Services Term, Customer shall immediately cease all use of the Paid Services and Arrikto shall revoke all passwords and access to the Paid Services. In addition, if Customer fails to make any payment hereunder for the Paid Services, Arrikto may immediately suspend Customer’s access to the Paid Services; such suspension will not modify the terms and conditions set forth in this Agreement.
The term of this Agreement begins on the Effective Date and will remain in effect until the Order Form has expired or terminated, or until this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs first (the “Term”). Unless earlier terminated in accordance with this Agreement, the initial License Term of the Order Form commences on the Order Form Effective Date (as defined in such Order Form) and continues for the duration of the License Term as expressly specified therein. If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that Arrikto may immediately terminate this Agreement and/or Customer’s Subscription License(s) under Order Form to the Service upon Customer’s breach of Section 2.3 (Restrictions on Use). Either party may also terminate this Agreement upon written notice if the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event. Upon expiration or termination of this Agreement for any reason, (i) all rights granted to Customer shall terminate and Customer shall destroy any copies of the Service and Documentation within Customer’s possession and control; and (ii) each Receiving Party will, within seven (7) business days, return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. If Confidential Information is destroyed pursuant to the Disclosing Party’s request, the Receiving Party shall promptly provide written notice certifying such destruction. All fees that have accrued as of such expiration or termination, and Sections 2.2, 2.3, 2.4, 3, 4, 5, 6, 7.2 and 8 through 11, will survive any expiration or termination hereof.
7. WARRANTIES.
7.1 LIMITED WARRANTY. Arrikto warrants that during the License Term under the Order Form, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable version of the Software. Arrikto’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for a breach of this warranty shall be that Arrikto will use commercially reasonable efforts to repair or replace the Software to conform in all material respects to the Documentation, and if Arrikto is unable to materially restore such functionality within ninety (90) days from the date of written notice of breach of this warranty by Customer, Customer shall be entitled to terminate the Subscription License to the affected Service under the Order Form upon written notice to Arrikto, and Arrikto shall promptly provide a pro-rata refund of the Subscription License fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). To be eligible for the foregoing remedy, Customer must notify Arrikto in writing of any warranty breaches within such warranty period, and Customer must have installed and configured the Software in accordance with the Documentation.
7.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL SERVICES, DOCUMENTATION, MAINTENANCE AND SUPPORT ARE PROVIDED “AS IS,” AND Arrikto AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SERVICE. Arrikto EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SERVICE, DOCUMENTATION, MAINTENANCE OR SUPPORT.
8. INDEMNIFICATION.
8.1 BY Arrikto. Arrikto agrees to defend, at its expense, Customer against (or, at Arrikto’ sole option, settle), any third party claim to the extent such claim: (1) arises from, or relates to, Arrikto’s gross negligence or willful misconduct; or (2) alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Arrikto shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in Arrikto’ sole opinion is likely to become, subject to such a claim, Arrikto, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Software, or (c) terminate the applicable Subscription License and provide a pro-rata refund of the Subscription License fees under the Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). The foregoing indemnification obligation of Arrikto will not apply: (1) if the Software is or has been modified by Customer or its agent; (2) if the Software is combined with other non-Arrikto products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination, or (3) to any unauthorized use of the Software. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third-party intellectual property rights.
8.2 BY CUSTOMER. Customer agrees to defend, at its expense, Arrikto and its affiliates, its suppliers and its resellers against any third party claim to the extent such claim arises from or is made in connection with Customer’s breach of Section 1 (Software License) or Customer’s negligence or willful misconduct, and Customer shall pay all costs and damages finally awarded against Arrikto by a court of competent jurisdiction as a result of any such claim.
8.3 INDEMNIFICATION REQUIREMENTS. In connection with any claim for indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7, except to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind either party shall not be final without the other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer’s consent shall not be required when Arrikto is the indemnifying party if the settlement involves only the payment of money by Arrikto.
9. LIMITATION OF LIABILITY. The limits below will not apply to the extent prohibited by applicable law.
9.1 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2.2 (RESTRICTIONS ON USE), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2.2 (RESTRICTIONS ON USE), NEITHER PARTY’S LIABILITY FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID (PLUS FEES PAYABLE) TO Arrikto DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
10 . FORCE MAJEURE.
Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, disease, pandemics, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.
11. ACCOUNT CREATION ON ARRIKTO.COM AND ITS SUBDOMAINS
In order to use some of the products or services offered by Arrikto, the Customer must create an account. Accounts created using an e-mail address with the same domain name, such as from a school, company, institution, or other organization, will be limited to a maximum of 3 accounts, and Arrikto may, at its sole discretion, close any accounts in excess thereof.
Customer is entirely responsible for maintaining the confidentiality and security of their account, and is responsible for all changes and updates submitted through their account and all activities that occur in connection with their account.
Customer agrees to notify Arrikto immediately of any unauthorized use of their account by sending an e-mail to support@arrikto.com. Arrikto reserves the right to suspend access to or close the Customer’s account at any time for any or no reason.
When the Customer creates an account, they agree only to provide true, accurate and correct information.
Customer may:
a. not impersonate someone else;
b. not provide or use false information;
c. not use a temporary/disposable e-mail address;
d. not create or use an account for anyone other than themselves;
e. not provide an e-mail address other than their own;
f. not create multiple accounts;
Arrikto may cancel or suspend Customer’s access to their account and/or remove their access to certain features.
Use of any personal information the Customer provides to Arrikto during the account creation process is governed by Arrikto’s Privacy Policy.
12. MISCELLANEOUS.
This Agreement shall be governed by and construed under the laws of the State of Delaware, U.S.A. All disputes arising under or in connection with this Agreement shall be submitted to JAMS or a successor organization for binding arbitration by a single arbitrator in New York County, New York, provided that a party may also seek injunctive relief as provided in Section 3.2 in a court of competent jurisdiction. The arbitrator shall be selected by JAMS in an impartial manner determined by it. The arbitration hearing will be commenced within one hundred eighty (180) days of the filing of an arbitration demand with JAMS by any party hereto, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing. The arbitrator shall have complete authority to render any and all relief, legal and equitable, appropriate under this Agreement. The arbitrator shall award costs of the proceeding, including reasonable attorney’s fees, to the party determined to have substantially prevailed. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving New York County, New York for the enforcement of arbitral awards or injunctive relief in accordance with Section 3.2. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement, together with the Order Form and any statements of work incorporating or referencing this Agreement, if applicable, represent the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. The person signing or otherwise accepting this Agreement for Customer represents that s/he is duly authorized by all necessary and appropriate corporate action to enter this Agreement on behalf of Customer. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice, statement of work or similar document (other than the Order Form, which will take precedence), even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. For purposes of this Agreement, “including” means “including without limitation”. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. Arrikto reserves the right to perform its obligations from locations and/or through use of affiliates, contractors and subcontractors, worldwide, provided that Arrikto will be responsible for such parties. Customer may not assign this Agreement without the prior written consent of Arrikto, and any purported assignment in violation of this Section 11 shall be void, provided, however, that Customer may assign this Agreement without Arrikto’s written consent to any entity with which Customer merges or consolidates or to which Customer sells all or substantially all of its assets. Arrikto may assign, transfer or subcontract this Agreement in whole or in part without Customer’s consent. Upon any assignment of this Agreement by Customer that is approved by Arrikto, if the Order Form contains a Subscription License for an “unlimited” amount of Licensee Units, such Subscription License will, with respect to Customer or the successor entity, as applicable, be capped at the number of authorized Licensee Units in use immediately prior to such assignment.
Arrikto may give notice to Customer by electronic mail to Customer’s email address as provided by Customer on the Order Form or on record in Customer’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address as provided by Customer on the Order Form or on record in Customer’s account information. Customer may give notice to Arrikto at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Arrikto at the following address or such other address as may be notified to Customer from time to time: Arrikto, 60 E. 3rd Ave, Suite 262 San Mateo, CA 94401, Attn.: Legal Department. Notice under this Agreement shall be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next-day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.