Terms of Service
SECTION 1 – PROJECT AUTHORIZATION AND SERVICES
These Terms of Service are incorporated by reference into any mutually agreed Service Contract, Arakÿta quotation, order form, statement of work or other document executed by Arakÿta and Customer referencing these Terms of Service (each in effect a “Service Contract”). Each Service Contract shall be governed by these Terms and Conditions. Customer warrants that the individual executing the Service Contract is a duly authorized representative of Customer and understands that these Terms and Conditions are incorporated into all agreements between Arakÿta and Customer.
SECTION 2 – CONFLICT BETWEEN THESE TERMS OF SERVICE AND A SERVICE CONTRACT
In the event of conflict or inconsistency between the general provisions of these Terms of Service and a Service Contract, the conflict or inconsistency shall be resolved in the following precedence: (i) first in favor of the these Terms of Service and (ii) second in favor of the Service Contract.
SECTION 3 – TERM AND RENEWAL OF TERMS OF SERVICE
The term of these Terms of Service shall commence upon the effective date listed on the applicable Service Contract and shall continue for an initial term listed in the Service Contract (the “Term”). This Agreement shall renew for the same specified term at the conclusion of the current contract’s term, unless either party completes the steps in Section 4.1. Fees may increase up to 10% each year, including multi-year contracts, unless otherwise communicated by Arakÿta in writing prior to renewal (the “Renewal Term”). Renewals shall continue on such terms while a Service Contract exists.
SECTION 4 – TERMINATION AND TERMINATION CHARGES
Upon termination of any applicable Service Contract, quote, service agreement, invoice, or individualized agreement, these Terms of Service are also terminated except those provisions that survive this Agreement as stated within these Terms of Service.
1. Customers who are approaching the end of their Service Contract, as described above in the Term and Renewal of Terms of Service section, and do not wish to renew their Services with Arakÿta, are to notify Arakÿta in writing to the email address “firstname.lastname@example.org” with the subject line “Cancel Arakÿta Services” at least 30 days prior to the end of the contract year. Cancellations will only be considered when notification is sent to this address. Written notification to other Arakÿta representatives is not considered an acceptable form of cancellation notification.
2. Customer may terminate a Service Contract at any time before contract end date by notifying Arakyta in writing via the email address “email@example.com” with the subject line “Cancel Arakÿta Services”. As a termination charge, Customer shall pay to Arakÿta: (i) any incurred fees and costs that are due to Arakÿta at the time of termination; (ii) the full amount of the recurring fees due for the remaining months of the Term discussed in the Section “Term and Renewal of Terms of Service”; (iii) any third-party cancellation/termination charges related to the installation or termination of service; and (iv) the non-recurring charges for the cancelled service. All termination charges shall be due immediately and no further work or data will be released until payment in full is rendered.
3. Arakÿta may, without further liability and at its sole discretion, terminate a Service Contract and these Terms of Service if Customer is past due in paying any Arakÿta invoice and has failed to cure such non-payment within fifteen (15) days of written notice.
4. Either party may immediately terminate a Service Contract and these Terms of Service upon occurrence of any of the following triggering events: (i) Either party materially breaches any of the provisions or requirements of a Service Contract or these Terms of Service and such breach is not cured within ninety (90) days after receipt of written notification (via email to firstname.lastname@example.org) from the non-breaching party; or (ii) Either party ceases to conduct business, is adjudicated bankrupt, or if a receiver or trustee is appointed for all or a substantial portion of its assets, or if any assignment for the benefit of its creditors is made. In the event of any such termination, Customer shall pay Arakÿta on or before the effective date of termination all fees due, including but not limited to any out-of pocket expenses incurred up to the date of termination, and termination charges set forth herein or in any Service Contract or any other legal or equitable remedy or relief as may be appropriate.
5. Arakÿta reserves the right to refuse to provide the Services if Arakÿta reasonably believes that doing so would subject Arakÿta to material business or legal risks. Additionally, Arakÿta may terminate this Agreement immediately if (i) Arakÿta ceases to provide the Services; (ii) Customer breaches the terms or fails to perform its obligations of this Agreement, or (iii) Arakÿta reasonably believes that Customer abuses the Services.
6. Upon the termination or expiration of a Service Contract, Customer agrees to allow Arakÿta to remove all Arakÿta owned or leased equipment, software, or materials from the Customer’s premises. At the time of removal, such equipment, software, and materials shall be in the same condition as when delivered to Customer or installed at the Customer’s premises, normal wear and tear excepted.
7. Upon the termination or expiration of a Service Contract, Customer may request, at Customer’s sole option, that all data maintained by Arakÿta for the benefit of Customer be provided in electronic format. Upon Arakÿta’s receipt of a written request (via email at email@example.com) for such transfer, Arakÿta shall provide a full backup of such data within five (5) business days. Customer shall be charged the then-standard hourly rate for such service in addition to expenses for media or other storage medium used to conduct the transfer.
8. Any termination of a Service Contract shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
SECTION 5 – PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, Customer is prohibited from using the Services (i) for any unlawful purpose; (ii) to solicit others to perform or participate in any unlawful acts; (iii) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (iv) to infringe upon or violate Arakÿta’s intellectual property rights or the intellectual property rights of others; (v) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (vi) to submit false or misleading information; (vii) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, or the Internet; (viii) to collect or track the personal information of others; (ix) to spam, phish, pharm, pretext, spider, crawl, or scrape; (x) for any obscene or immoral purpose; or (xi) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet. Arakÿta reserves the right to terminate Customer’s use of the Services or any related website for violating any of the prohibited uses.
Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services or any contact on the website through which the Services are provided, without express written permission by Arakÿta.
SECTION 6 – USER COMMENTS, FEEDBACK, TESTIMONIALS AND OTHER SUBMISSIONS
If, at Arakÿta’s request, Customer sends certain specific submissions or without a request from Arakÿta Customer sends creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), Customer agrees that Arakÿta may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that Customer forwards to Arakÿta. Arakÿta is and shall be under no obligation to (i) maintain any comments in confidence; (ii) to pay compensation for any comments; or (iii) to respond to any comments.
SECTION 7 – PRICING, PAYMENT, AND ALTERATION OF STATEMENT OF WORK
1. Arakÿta hereby agrees to provide Customer each deliverable (collectively, the “Deliverables”) specifically set forth and described in the Service Contract. The parties agree that a Service Contract corresponding to each deliverable shall be agreed upon prior to work containing the full and complete description of the work to be performed by Arakÿta. All parties shall act to complete the work described within a reasonable time. Delivery or completion schedules denoted within each Service Contract are estimates only and are dependent upon timely receipt from Customer of all necessary information and authorizations.
2. Customer agrees to pay Arakÿta based upon the prices and billing method denoted within each Service Contract. Customer agrees to reimburse Arakÿta for reasonable travel, living, and related expenses incurred by Arakÿta. Arakÿta agrees to provide to Customer an estimate of expenses deemed as travel, living, and related expenses in advance of incurring them. In the event such an emergency does result in travel, living, or related expenses, Arakÿta shall notify the Customer as soon as is reasonably practical and these expenses will be deemed collectable. Unless otherwise stated, all pricing, price terms, invoices, payments, expenses, and reimbursements are expressed in U.S. Dollars.
3. Customer authorizes Arakÿta to electronically debit Customer’s bank account according to the terms outlined below. Customer acknowledges that electronic debits against Customer’s account must comply with United States law.
4. Customer will be provided an invoice by email on a monthly basis. The invoice for a given month will likely be sent on the twentieth (20th) day of the prior month. Terms for the invoice will be Net 15 days with payment due no later than the fifth day of the month of the Services included on the invoice.
5. Customer agrees to provide Arakÿta with valid bank ACH information. Customer agrees to promptly update Customer’s account and other information, including Customer’s email address and account and routing numbers, so that Arakÿta can complete Customer’s transactions and contact Customer as needed. In the event that Arakÿta has not received payment for an invoice by the due date of that invoice, Customer gives permission to Arakÿta to submit payment via Customer’s Electronic Payment Information. In effect, this allows Customer to pay any invoice by check or manual ACH from the Customer’s bank account if desired or allow any invoice to automatically be submitted for payment via Customer’s Electronic Payment Information.
6. Customer agrees that Arakÿta may submit electronically, as an electronic ACH payment, any check received from Customer.
7. Incidental charges, including but not limited to Professional Services Work performed beyond what is included in Customer’s Service Contract, will be invoiced on the next regular monthly invoice or in a separate invoice at the discretion of Arakÿta. The terms of this invoice will be Net 15 days and will be subject to the same payment terms listed above.
8. The Service may be suspended if payment is not received within five (5) days following date due. In the event of Service suspension, Arakÿta will resume the Service within four (4) hours of receipt of payment from Customer with an additional reconnect fee of $500 added to the previous unpaid invoice(s).
9. In the event that Customer is placed on Credit Hold for non-payment, Customer remains liable for all monthly fees that may accrue. A late payment interest charge of 1.5% per month (or the highest rate permitted by law, if less) will be assessed on invoices not paid within 30 days. If Customer fails to make any payments due, in addition to any other rights Arakÿta may have, Arakÿta may defer or delay any further work until such payments are made. If Customer fails to pay an invoice when it is due, Customer agrees to pay all costs, expenses, or damages we incur as a result of Customer’s failure to pay, including, without limitation, reasonable attorneys’ fees and other costs of collection. If available, in lieu of paying sales taxes, Customer may provide Arakÿta with a tax exemption certificate acceptable to any applicable taxing authorities.
10. If an invoice remains unpaid, Arakÿta may, reserving all other legal remedies and rights, terminate these Terms of Service upon five (5) business days’ notice to Customer. In the event of termination or expiration of the Terms of Service, all other relevant Sections shall survive any such termination or expiration.
11. Customer will review project progression with Arakÿta no less frequently than monthly. All changes requested by Customer will be in writing. Arakÿta will notify Customer if a requested change would either require additional time or affect Arakÿta’s charges other than those set forth in the applicable Service Contract. Arakÿta will perform the change only if Arakÿta and Customer agree in writing on equitable adjustments to scheduled pricing and charges.
12. These Terms and Conditions and applicable Service Contract, contain the entire agreement of the parties and supersedes all prior negotiations, agreements, and understandings. Arakÿta reserves the right, at our sole discretion, to update, change or replace any part of these Terms and Conditions by posting updates and changes to this website. It is the Customer’s responsibility to check the website periodically for changes. Your continued use of our Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes. Customer acknowledges that no representation, promise, inducement, or statement of intention has been made by Arakÿta except those which are expressly included herein and in the documents referenced herein.
SECTION 8 – INTELLECTUAL PROPERTY, DATA LICENSING, AND DATA USAGE RIGHTS
1. In the event that Arakÿta develops or improves materials, software, or data for the Customer, it is agreed that Customer will have a non-exclusive, perpetual, royalty-free license to use such materials, software, or data. Intellectual Property rights, title, and ownership of any materials, software, or data developed shall remain exclusively with Arakÿta unless otherwise provided in the Service Contract.
2. Software furnished by Customer for use by Arakÿta shall be in good and usable condition. Customer will be solely responsible for ensuring the correctness and completeness of the software and will also provide any technical support necessary in Arakÿta’s use of such software in performance of the Service Contract. Customer will retain copies of all software provided to Arakÿta and will be solely liable for acquiring and furnishing any necessary licenses. In the event Arakÿta requires additional copies of the software, Customer agrees to furnish them at no additional charge. All software, and copies of software, provided by the Customer shall remain the property of Customer. Within ninety (90) days of completion of a project or service, Arakÿta shall return all Customer software and software licenses to Customer or shall dispose of them in accordance with Customer’s instructions.
3. Software furnished by Arakÿta may be subject to other third-party Licensing and Usage Agreement(s). Customer will be solely liable for complying with all third-party licensing agreements for any and all software used, provided, or installed as part of the Service Contract.
SECTION 9 – DISCLAIMER OF AGENCY RELATIONSHIP, NON SOLICITATION OF EMPLOYEES, AND PERSONNEL STANDARDS OF CONDUCT
1. Neither party, nor its employees or officers, are, or shall be deemed to be, employees of the other party. Each party will be solely responsible for the payment of its employees’ compensation and benefits, including employment taxes, workers’ compensation, unemployment insurance, and any similar taxes or assessments arising out of or associated with their employment as well as any and all other responsibilities, obligations, and liabilities employers have toward their employees.
2. These Terms of Service shall not create any partnership or joint venture between the parties. Nothing contained in these Terms of Service shall be construed as creating an agency or representative relationship between the parties for any purpose. No provision of these Terms of Service grants either party any express or implied right of authority to assume or create any obligation or responsibility on behalf of, or in the name of, the other party, or to bind the other party in any manner or thing whatsoever.
3. Customer agrees that, without expressed written consent, at all times while Customer is employing the services of Arakÿta and for twelve months after the contract period terminates, Customer will not, directly or indirectly, hire, retain (including as a consultant or otherwise) or encourage any employee or contractor of Arakÿta to leave the employment of or contract with Arakÿta or hire or retain (including as a consultant or otherwise) any former employee or contractor of Arakÿta who has left the employment of or contract with Arakÿta. Arakÿta expressly reserves the right to file legal action and seek preliminary injunctive relief for the violation of this section, and the court shall award attorney fees to the prevailing party. The parties expressly consent to the jurisdiction of the state and federal courts in Lucas County, Ohio for the filing of any such action.
4. While on Customer’s premises in connection with the performance of these Terms of Service and Service Contract, Arakÿta personnel will comply with the same rules of conduct as apply to Customer’s own personnel and for which Arakÿta is given reasonable notice. On notice from Customer, Arakÿta will remove any of its personnel assigned to perform work under these Terms of Service who do not comply with these rules of conduct.
5. Customer agrees to provide a safe working environment for Arakÿta personnel under the work requested by Customer and to make commercially reasonable adjustments if such workplace conditions change and Customer has been made aware of such changes. Customer agrees to provide to Arakÿta such office facilities, equipment, Internet access, telephone access, and other resources necessary and appropriate to perform the work described in the Service Contract(s).
SECTION 10 – CONFIDENTIALITY OF INFORMATION
1. Arakÿta and Customer acknowledge that material and information may come into the possession or knowledge of each other in the course of providing services consisting of confidential and proprietary data. Arakÿta and Customer agree that such information shall be treated as confidential information (“Confidential Information”) on condition that it is in documentary form and marked “confidential” at the time of disclosure. If not in documentary form at the time of disclosure, the disclosing party agrees to reduce such to writing and to forward to the receiving party within ten (10) days from the date of initial disclosure. Arakÿta and Customer agree to hold such Information in strictest confidence, not to make use thereof other than for the performance of the contract, to release it only to employees requiring such information, and not to release or disclose it to any other party. No obligation of confidentiality applies to any Information that the receiving party (i) already possesses without obligation of confidentiality, (ii) develops independently, (iii) rightly receives without obligation of the confidentiality from a third party; or (iv) receives after prior disclosure by the disclosing party to a non-Customer third party without similar restrictions. This obligation shall survive the termination of these Terms of Service.
2. Arakÿta shall treat as confidential, and shall not disclose or otherwise make available, the personal account information or other data received by Arakÿta from the Customer or its Customers to any person, other than employees, agents, subcontractors, or affiliates of Arakÿta or Customer (collectively “Employees and Agents”). Arakÿta shall instruct such Employees and Agents to keep such information confidential by using the same care and discretion that Arakÿta uses with respect to its own confidential information. Customer may provide Arakÿta with information or access to information concerning personas or entities that obtain financial products or services from Customer. Arakÿta acknowledges that its right to use and re-disclose non-public personal information concerning Customer’s Customers (the “Information”) is limited by the Gramm-Leach-Bliley Act of 1999 (Pub. L. 106-102, 113 Stat. 1138) (the “GLB Act”) and its implementing regulations and by other federal and state laws and regulations regarding privacy and the confidentiality of Customer records. To protect the privacy of Confidential Information Arakÿta shall:
a) Limit access to confidential information to those Employees and Agents who have a need to know so as to carry out the purposes for which the information was disclosed;
b) Use information solely to carry out the purposes for which the information was disclosed and for no other purpose;
c) Take reasonable steps to ensure the security and confidentiality of Customer information;
d) Immediately notify Customer in the event of any breach in security related to the information; and,
e) Establish, document, and implement reasonable measures for the proper disposal of the information.
3. Upon the termination or expiration of a Service Contract or other agreement integrating by reference these Terms of Service, both Customer and Arakÿta agree to immediately return to the other Party any and all documents, records, computer disks, and all other repositories of any Confidential Information, including copies thereof, provided to or then in that Party’s possession or control. To the extent Confidential Information is stored in electronic form on any computers or other electronic devices owned by one of the Parties, that Party further agrees to irretrievably delete all such information and to confirm the fact of deletion in writing within three (3) calendar days following termination or expiration of a Service Contract or other agreement integrating by reference these Terms of Service.
SECTION 11 – WARRANTIES, EXCLUSION OF WARRANTIES, AND LIMITATIONS OF LIABILITY
1. Provided that Customer performs its obligations to Arakÿta under these Terms and Conditions and the applicable Service Contract, Arakÿta warrants to Customer that the Services performed by Arakÿta will be performed consistent with generally accepted industry practice. Arakÿta’s warranty shall expire 30 days after the applicable Services Completion Date or earlier termination. Arakÿta’s warranty shall only be effective if Customer notifies Arakÿta of the breach of warranty within 30 days after the applicable Services Completion Date. Arakÿta’s sole and exclusive obligation for breach of warranty shall be, at Arakÿta’s option, to (i) use commercially reasonable efforts to perform the Services in a manner that conforms to the warranty, or (ii) refund to Customer the fees paid by Customer to Arakÿta for the nonconforming Services. The remedies set forth in this paragraph are Customer’s exclusive remedies for any breach of warranty.
2. Customer agrees that should any equipment or other item be covered by a separate manufacturer warranty, that Customer will pursue the manufacturer warranty to the fullest extent before looking to Arakÿta for any repair and replacement obligation. Customer waives any claim for consequential damages against Arakÿta, and any claim for monetary relief by Customer shall be limited to the extent of Arakÿta’s available insurance to cover Customer’s claim.
3. Certain parts of the Services may be provided by third parties/resellers (the “third-party services”). Customer agrees and acknowledges that such third-party Services are provided to Customer subject to the terms and conditions of the applicable third party/reseller. Customer shall comply with such terms and conditions and the applicable third party/reseller is solely responsible for the third-party Services at issue. Arakÿta is not liable for the performance or non-performance of third party/resellers, their products or their services. Arakÿta’s decision on how long to offer remote or onsite assistance services on selected non-Arakÿta products is final.
4. READ CAREFULLY: DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR CUSTOMER AT CUSTOMER’S SOLE RISK. ARAKŸTA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES, OR OTHER MATERIALS DELIVERED BY ARAKŸTA, ARAKŸTA DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY WORK IT PRODUCES ARE ACCURATE OR RELIABLE. ARAKŸTA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT CUSTOMERS USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. CUSTOMER AGREES THAT FROM TIME-TO-TIME ARAKŸTA MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICES AT ANY TIME, WITHOUT NOTICE TO CUSTOMER. EVEN IF ALL THE SERVICE REQUIREMENTS ARE MET, THE SERVICES PURCHASED BY CUSTOMER MAY NOT BE AVAILABLE AT ALL TIMES. ARAKŸTA WILL NOT BE LIABLE FOR PERFORMANCE DELAYS OR FOR NONPERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL. ARAKŸTA SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY MODIFICATION, PRICE CHANGE, SUSPENSION, OR DISCONTINUANCE OF THE SERVICES. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE.
ARAKŸTA IS NOT RESPONSIBLE IN THE EVENT THAT INFORMATION MADE AVAILABLE ON THIS SITE IS NOT ACCURATE, COMPLETE, OR CURRENT. OCCASIONALLY THERE MAY BE INFORMATION ON ARAKŸTA’S SITE OR IN THE SERVICES THAT CONTAIN TYPOGRAPHICAL ERRORS, INACCURACIES, OR OMISSIONS THAT MAY RELATE TO PRODUCT DESCRIPTIONS, PRICING, PROMOTIONS, OFFERS, PRODUCT SHIPPING CHARGES, TRANSIT TIMES, AND AVAILABILITY. THIS SITE MAY CONTAIN CERTAIN HISTORICAL INFORMATION. HISTORICAL INFORMATION, NECESSARILY, IS NOT CURRENT AND IS PROVIDED FOR CUSTOMER’S REFERENCE ONLY. THE MATERIAL ON THIS SITE IS PROVIDED FOR GENERAL INFORMATION ONLY AND SHOULD NOT BE RELIED UPON OR USED AS THE SOLE BASIS FOR MAKING DECISIONS WITHOUT CONSULTING PRIMARY, MORE ACCURATE, MORE COMPLETE, OR MORE TIMELY SOURCES OF INFORMATION. ANY RELIANCE ON THE MATERIAL ON THIS SITE IS AT CUSTOMER’S OWN RISK.
ARAKŸTA RESERVES THE RIGHT TO CORRECT ANY ERRORS, INACCURACIES, OR OMISSIONS, AND TO CHANGE OR UPDATE INFORMATION OR CANCEL ORDERS IF ANY INFORMATION IN THE SERVICES OR ON ANY RELATED WEBSITE IS INACCURATE AT ANY TIME WITHOUT PRIOR NOTICE (INCLUDING AFTER CUSTOMER HAS SIGNED THEIR SERVICE CONTRACT OR SUBMITTED THEIR ORDER).
ARAKŸTA UNDERTAKES NO OBLIGATION TO UPDATE, AMEND, OR CLARIFY INFORMATION IN THE SERVICES OR ON ANY RELATED WEBSITE, INCLUDING WITHOUT LIMITATION, PRICING INFORMATION, EXCEPT AS REQUIRED BY LAW. NO SPECIFIED UPDATE OR REFRESH DATE APPLIED IN THE SERVICES OR ON ANY RELATED WEBSITE SHOULD BE TAKEN TO INDICATE THAT ALL INFORMATION IN THE SERVICES OR ON ANY RELATED WEBSITE HAS BEEN MODIFIED OR UPDATED.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF ARAKŸTA’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD-PARTY DATA OR THIRD-PARTY PLATFORMS. ARAKŸTA MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURANCY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD-PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MAY BE DISCONTINUED AT ANY TIME BY ARAKŸTA. ARAKŸTA IS NOT LIABLE FOR ANY HARM OR DAMAGES RELATED TO THE PURCHASE OR USE OF GOODS, SERVICES, RESOURCES, CONTENT, OR ANY OTHER TRANSACTIONS MADE IN CONNECTION WITH ANY THIRD-PARTY WEBSITES. CUSTOMER AGREES THAT IT IS CUSTOMER’S RESPONSIBILITY TO CAREFULLY REVIEW ANY THIRD-PARTY’S POLICIES AND PRACTICES BEFORE ENGAGING IN ANY TRANSACTION. COMPLAINTS, CLAIMS, CONCERNS, OR QUESTIONS REGARDING THIRD-PARTY PRODUCTS SHOULD BE DIRECTED TO THE THIRD PARTY. CUSTOMER IS RESPONSIBLE FOR MAINTAINING PROPER BACKUP OF THEIR INFORMATION. ARAKŸTA IS NOT RESPONSIBLE FOR MAINTAINING THE BACKUP OF CUSTOMER’S INFORMATION, FILES, RECORDS, OR OTHER INFORMATION.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE ENTIRE LIABILITY OF ARAKYTA TO THE CUSTOMER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ARAKŸTA UNDER THE APPLICABLE SERVICE CONTRACT. IN NO EVENT SHALL ARAKYTA BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, ARAKYTA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A CYBER INCIDENT (DEFINED BELOW) SHALL BE CAPPED AT THE GREATER OF (i) $100,000, OR (ii) THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO ARAKYTA FOR THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO LIABILITY AROSE. FOR PURPOSES OF THIS SECTION, “CYBER INCIDENT” MEANS ANY MALICIOUS ACT OR SUSPICIOUS EVENT (OR ANY ATTEMPT THEREOF) THAT IMPACTS, COMPROMISES, ALTERS, COPIES, OR OTHERWISE RESULTS IN ANY UNAUTHORIZED ACCESS OR USE OF DATA INCLUDING, WITHOUT LIMITATION, ANY DATA PROVIDED BY OR OTHERWISE MADE AVAILABLE TO ARAKYTA BY CUSTOMER WHICH IS STORED, MAINTAINED, OR PROCESSED ON ANY COMPUTING DEVICE, SYSTEM, SERVER, DRIVE, DATA STORAGE MEDIA, OR PLATFORM THAT IS WITHIN THE POSSESSION, CUSTODY, OR CONTROL OF ARAKYTA OR ITS SUBCONTRACTORS. A “CYBER INCIDENT” INCLUDES, WITHOUT LIMITATION, ANY RANSOMWARE ATTACK, ACTS BY AN UNAUTHORIZED PARTY TO GAIN ACCESS TO A COMPUTING DEVICE, SYSTEM, SERVER, DRIVE, OR DATA PHISHING AND SOCIAL ENGINEERING SCHEMES, THEFT, MALWARE, VIRUS, EXPLOIT, OR VULNERABILITY WHICH IS UTILIZED, IMPLEMENTED, OR DEPLOYED AGAINST ARAKYTA OR ITS SUBCONTRACTOR TO IMPACT, COMPROMISE, ALTER, COPY, OR OTHERWISE RESULTS IN ANY UNAUTHORIZED ACCESS OR USE OF DATA THAT IS WITHIN THE POSSESSION, CUSTODY, OR CONTROL OF ARAKYTA.
SECTION 12 – INDEMNIFICATION
Customer agrees to indemnify, defend, and hold harmless Arakÿta and their parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Customer’s breach of these Terms and Conditions, the documents they incorporate by reference, Customer’s violation of any law, or the rights of a third-party.
SECTION 13 – FORCE MAJEURE
1. For purposes of these Terms of Service, “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this agreement on condition that that party uses reasonable efforts to do so.
2. If a Force Majeure Event occurs, the party that is prevented by that Force Majeure Event from performing any one or more obligations under this agreement (the “Nonperforming Party”) will be excused from performing those obligations, on condition that it complies with its obligations under this Section item number three.
3. Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this agreement.
SECTION 14 – CHOICE OF LAW AND ARBITRATION PROVISION
1. This Agreement shall in all respects be governed by, and construed and interpreted in accordance with, the Laws of the State of Ohio without giving effect to any conflicts of law principles of Ohio that might refer the governance, construction, or interpretation of this Agreement to the Laws of another jurisdiction.
2. Any controversy or claim arising out of or relating to the Terms of Service or Service Contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The parties agree and consent to the jurisdiction of the state and federal courts for Lucas County, Ohio to seek to compel arbitration and/or to confirm, modify, or vacate any judgment on the award rendered by the arbitrator. This agreement to arbitrate, however, shall not preclude the parties from applying for any preliminary or injunctive remedies available under applicable laws for any purpose. Prior to filing any arbitration, the party asserting any claim must contact the other by email and the parties are required to engage in good faith settlement negotiations to resolve this matter. If the dispute cannot be settled through negotiation, then the parties agree in good faith to attempt to settle the dispute by mediation with the use of agreed-upon mediator for a period of 60 days before filing arbitration. The parties agree to split the costs of the mediation. Both the obligation to negotiate and mediate are conditions precedent to vesting jurisdiction in the arbitration.
SECTION 15 – GENERAL PROVISIONS
1. These Terms and Conditions are for the sole benefit of the Customer, including its affiliates, and Arakÿta and not for the benefit of any other persons or legal entities.
2. Should any part of these Terms and Conditions be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion these Terms and Conditions shall not invalidate the remaining portions thereof, and they shall remain in full force and effect.
3. The headings in these Terms and Conditions are for reference purposes only and shall not be construed to affect the meaning or construction of the terms of these Terms and Conditions.
4. Neither party may assign these Terms and Conditions without the prior written consent of the other party, except that either party may, without the consent of the other, assign these Terms and Conditions to a controlled subsidiary of that party or a purchaser of all or substantially all of that party’s assets used in connection with performing these Terms and Conditions, provided the assigning party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under these Terms and Conditions. The rights and obligations of these Terms and Conditions shall bind and benefit any successors or assigns of the parties. Arakÿta’s right to sub-contract others for its projects or services shall be subject to the advance informed consent of the Customer, which consent shall not be unreasonably denied. Such consent shall be deemed given if not expressly denied within three (3) business days of any written request by Arakÿta.
5. Unless otherwise specified in the applicable Service Agreement or Service Contract, the Services will only be provided to customers located in the United States. Arakÿta does not provide Service to customers not located in the United States.
6. The export or re-export of any deliverable by Customer may require authorization by a U.S. government agency. It is Customer’s responsibility to determine and comply with any such requirement, including, if necessary, making timely application in its own name for any export license which may be required.
7. Any action of any kind by either party arising out of these Terms and Conditions must be commenced within two (2) years from the date the right, claim, or cause of action shall first arise or discovered with the exercise of reasonable diligence.
8. Nothing in these Terms and Conditions shall prevent Arakÿta from providing to other Customers services that are similar or the same as services provided to Customer.
9. Failure to give notice of default or to enforce compliance with any specific provision of these Terms and Conditions, the waiver of any provision, or the granting of an extension of time for performance shall not be deemed to constitute the permanent waiver of any term or condition of these Terms and Conditions.
SECTION 16 – ADDRESS FOR NOTICE
Any notice or report not already covered in other sections of these Terms of Service required under these Terms and Conditions will be given in writing by personal delivery, commercial express delivery service, or by certified mail and, if directed to Arakÿta, LLC, then addressed to Arakÿta, LLC, Attn: Dennis Schroder, 701 Jefferson Ave., Suite 302., Toledo, OH 43604, or if to Customer, to the address provided on the Service Contract.
SECTION 17 – CONTACT INFORMATION
Questions about the Terms and Conditions should be sent to Arakÿta at firstname.lastname@example.org.
SECTION 18 – INTEGRATED AGREEMENT
These Terms and Conditions contains the complete and integrated understanding of the parties with respect to the matters contained herein. Neither the course of conduct between the parties nor industry trade usage will act to modify or alter the express provisions of this agreement. If Customer issues a purchase order or other similar document subsequent to the execution of these Terms of Service, it shall be for Customer’s internal purposes only and will have no effect on these Terms of Service, the applicable Service Contract, or the Services. Any ambiguities in the interpretation of these Terms and Conditions shall not be construed against the drafting party.
SECTION 19 – CHANGES TO TERMS AND CONDITIONS
The most current version of the Terms of Service, along with any applicable Service Agreement, is available at any time at www.arakyta.com/terms.
Arakÿta reserves the right, at our sole discretion, to update, change or replace any part of these Terms and Conditions by posting updates and changes to our website. It is Customer’s responsibility to check Arakÿta’s website periodically for changes. Customer’s continued use of or access to our website or the Services following the posting of any changes to these Terms and Conditions constitutes acceptance of those changes.