Terms of Service
These Terms of Service (“Terms”) govern all users (each a “Customer”) of http://www.arkit.io (the “Website”) which is made available by Ark Platforms Inc. (“Ark”), except that these Terms do not apply to a particular Customer during any time in which such Customer is a party to a written agreement in effect with Ark that governs the terms of the Services (a “Specific Agreement”).
If you are an agent or an employee of a business you represent and warrant that (i) by accepting these Terms, is duly authorized to accept these Terms on such entity’s behalf and to bind such business, and (ii) the business has full power, corporate or otherwise, to enter into these Terms and performs its obligations hereunder.
1.1 “Services” means a non-exclusive license to access and use the products and services developed and maintained by Ark and made available to Customer online via the web page(s) designated by Ark as being part of the Arkit software and which area available on the Website. The Services include, without limitation, a non-exclusive license to access and use all of Ark’s proprietary technology (including software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) relating to Arkit software that are made available by Ark to Customer in providing the Services.
1.2 For greater clarity, any licenses granted by Ark to Customer are revocable (i) immediately upon any material breach of these Terms by Customer, or (ii) immediately upon any termination of a Subscription Plan (as described herein). Ark retains the right to determine or alter content, functionality and all other aspects of the Services at any time. Subject to these Terms, Ark may accept or refuse a Customer’s use of the Services at any time, and may immediately terminate Customer’s access to the Services at any time for any reason.
1.3 Upon execution of these Terms by both parties, Ark will make the Services available to Customer as provided in the applicable Subscription Plan selected by Customer (http://www.arkit.io/pricing). All Subscription Plans are subject to change at any time at Ark’s sole discretion.
2 USE OF THE SERVICES
2.1 The Services may only be used by individuals: (i) who are authorized by Customer to use the Services, (ii) whom have subscriptions to the Services, (iii) who use the Services only for internal business purposes; and (iv) who have been supplied user identifications and passwords by Customer (or by Ark at Customer’s request). User subscriptions, identifications and passwords are for their designated users only and must not be shared or used by more than one user. Customer is responsible for safeguarding the password that Customer uses to access the Website and Services and Customer is solely responsible for any activities or actions under Customer’s password.
2.2 Customer will be responsible and liable for all acts and omissions of its users and all activity occurring under its user subscription accounts. Customer and its users will abide by all applicable laws and regulations in connection with Customer’s use of the Services, including those related to privacy and the transmission and export of technical or personal data. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and to notify Ark immediately of any such unauthorized access or use or any other known or suspected breach of security; (ii) report to Ark immediately, and use reasonable efforts to prevent and stop, any unauthorized copying or distribution of the Services; and (iii) not impersonate another customer or user, or provide false identity information to gain access to or use the Services.
3.1 Customer may only use the Services as authorized under these Terms Customer, and Customer will not:
(i) display or transmit spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful material, including material which may violate third party privacy rights;
(iii) engage in any illegal, offensive or unauthorized conduct including but limited to hacking, accessing, tampering with, or using non-public areas of the Services, Ark’s computer systems, or the technical delivery systems of Ark’s providers and partners; probing, scanning, or testing the vulnerability of any system or network or breaching or circumventing any security or authentication measures; interfering with, or disrupting, (or attempting to interfere or disrupt), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services; removing or modifying any copyright, trade mark or other proprietary notice on the Website; send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; use automated devices (such as robots and spiders) or other methods to scrape or index the Website or its Content; record or mine information about other users of the Website and Services; create or post shill reviews for Customer’s own business, products and services or those of any other user of the Website and Services; modify or make derivative works based upon the Services; create internet “links” to the Services or “frame” or “mirror” the Services or any part thereof on any other server or wireless or internet-based device; or reverse engineer or access the Services in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Services; or otherwise copy any ideas, features, functions or graphics of the Services;
(iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein;
(v) attempt to gain unauthorized access to the Services or its related systems or networks or access to the Services, other than as permitted in these Terms;
(vi) access or use the Services for the purposes of monitoring its availability, performance or functionality or for any benchmarking or competitive purposes;
(vii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service;
(viii) use the Services for any purpose or in any manner aside from internal business purposes;
(ix) access or use the Services for the purposes of monitoring the availability, performance or functionality of the Services for any competitive purpose, benchmarking, or other purpose; or
(x) in the course of using the Services, violate any applicable laws or infringe on any party’s rights including intellectual property rights.
4.1 For purposes of these Terms, “Customer Data” means any data, information, survey results, user information or other material (proprietary, copyrighted or otherwise) which is uploaded, entered, created or otherwise provided by Customer in the course of using the Services, including, but not limited to, any third party data obtained by Customer.
4.2 Customer is solely responsible for lawfully obtaining all Customer Data and for only using lawfully obtained Customer Data in its use of the Services, and for the accuracy, quality, integrity, completeness, legality, reliability, appropriateness and intellectual property ownership of or right to use all Customer Data. Customer will use reasonable security precautions when accessing and using the Services, and will create and maintain copies of all Customer Data uploaded to the Services. Customer will abide by all applicable laws, treaties and regulations, including those related to privacy.
4.3 Customer grants Ark a non-exclusive, royalty free limited license to access and use Customer Data solely as necessary to deliver the Services and perform Ark’s obligations under these Terms. Ark will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security and confidentiality of Customer Data. Ark will not (i) modify Customer Data, except as required to provide the Services, (ii) disclose Customer Data except as expressly permitted in these Terms or by Customer in writing or pursuant to Section 4.4 or as otherwise provided herein, or (iii) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. Customer agrees and acknowledges that Ark will not, and has no obligation to, maintain the accuracy, quality, integrity, completeness, legality, reliability, appropriateness or intellectual property ownership or right of use of any Customer Data uploaded and used by Customer in connection with the Services. Subject to Ark’s obligations set out herein, Ark is not responsible or liable for the deletion, correction, damage, loss of or failure to store any Customer Data.
4.4 Customer acknowledges and agrees that Ark may cache data generated through use of the Services and may, from time to time, access, review and use such data to test, assess and diagnose the operation of the Services; to protect the operation and integrity of Ark’s systems; and to ensure compliance with applicable laws. If required under applicable law or under government or court order, Ark may disclose Customer Data or information as reasonably required including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Ark’s servers and systems.
4.5 Customer hereby covenants, represents and warrants that up to the date hereof, it has complied with all applicable laws and in the future will comply with all applicable laws.
5.1 Customer will pay fees to Ark on the basis of the applicable Subscription Plan selected by Customer http://www.arkit.io/pricing (each, a “Subscription Plan” and collectively, the “Subscription Plans”) and other the terms provided therein.
5.2 All fees payable under a Subscription Plan are non-refundable (the “Fees”), and will be paid by credit card. Only credit cards are eligible for payment of the Fees and debit cards are not eligible. If all credit cards Ark has on file for Customer are declined for payment of the Fees, Customer has 5 business days to provide Ark with a new credit card or the Services will be cancelled, and if Customer provides Ark with a new card and Customer is successfully charged within 3 business days, Customer’s Subscription Plan term will be based on the original date of the attempted charge and not the successful date of the change.
5.3 All Fees recur on a monthly or annual basis and are incurred at the beginning of the month or year to which they apply. If a Subscription Plan is cancelled during a month or year for which Fees have been paid, such paid Fees will not be refunded.
5.4 UNLESS CUSTOMER NOTIFIES ARK CUSTOMER WANTS TO CANCEL PRIOR TO CUSTOMER’S NEXT MONTHLY OR ANNUAL PAYMENT DATE, CUSTOMER UNDERSTANDS THIS ITS SUBSCRIPTION PLAN WILL AUTOMATICALLY RENEW EACH MONTH OR ANNUALLY AND CUSTOMER AUTHORIZES ARK (WITHOUT NOTICE TO CUSTOMER, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING THE CREDIT CARD PROVIDED WHEN CUSTOMER SIGNED UP FOR A SUBSCRIPTION PLAN, OR IF ARK CANNOT SUCCESSFULLY CHARGE THIS CASE, ANY CREDIT ARK HAS ON RECORD FOR CUSTOMER.
6 OWNERSHIP AND PROPRIETARY RIGHTS
6.1 Subject to the limited rights expressly granted in these Terms, Ark reserves and retains all right, title and interest in and to the Services and all intellectual property rights therein. Customer will indemnify Ark for any infringement of Ark’s intellectual property rights that is caused by Customer’s failure to abide by these Terms.
6.2 If Customer provides Ark with any suggestions, comments or other feedback relating to any aspect of the Services or any Customizations (collectively, "Feedback"), all rights to the Feedback including moral rights will be irrevocably assigned to Ark unless Customer expressly reserves those rights in writing at the time of giving such feedback. For the absence of doubt, Ark may use such Feedback in the Services or in any other Ark products or services (collectively, "Ark Offerings"). Accordingly, Customer agrees that: (a) Ark is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of Customer or any third party and Customer has all of the necessary rights to disclose the Feedback to Ark, (c) Ark (including all of its successors and assigns and any successors and assigns of any of the Ark Offerings) is the owner of the Feedback and may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Ark Offerings, and (d) Customer is not entitled to receive any compensation or re-imbursement of any kind from Ark or from anyone else.
6.3 To the extent Customer, or a third party acting on Customer’s behalf, uploads or creates Customer Data in the course of using the Services, Customer authorize Ark to host, copy, transmit, display and adapt such Customer Data, solely as necessary for Ark to provide the Services in accordance with these Terms. Subject to the above, Ark acquires no right, title or interest from Customer or Customer’s licensors under these Terms in or to such Customer Data, including any intellectual property rights therein. Customer hereby represents and warrants that it has all the rights, power and authority necessary to grant the rights granted herein to any Content that Customer submits, uploads or enters on the Website.
7.1 By virtue of these Terms, each party may have access to information that is confidential to one another, including, but not limited to, the Services and Customer Data, the terms and pricing contained in these Terms, all information clearly identified as confidential, and information which, given its nature or the circumstances surrounding its disclosure, should reasonably be considered to be confidential (“Confidential Information”). A party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without the use or benefit of the other party’s Confidential Information or (v) is otherwise specified in these Terms as not being subject to confidentiality obligations. Customer will not disclose the results of any benchmark tests of the Services to any third party without Ark’s prior written approval. The parties each agree to hold each other’s Confidential Information in confidence during the time of Customer’s initial engagement with Ark and in perpetuity upon termination or expiration of these Terms. The parties each agree, unless otherwise required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the purposes of these Terms. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of these Terms. Any confidentiality provisions contained in this Section 8.1 do not apply where Confidential Information is required to be disclosed by law or a government or court order, provided that in such case (i) the party seetermking to disclose the other party’s Confidential Information must make commercially reasonable efforts to provide such other party with written notice of such disclosure within a reasonable period of time prior to such disclosure in order to facilitate such other party in obtaining a protective order to the extent that such written notice is possible within the deadline imposed by the applicable law or government or court order, and (ii) the first party will disclose only the minimum amount of information required by such law. Nothing in this Section 8.1 creates a fiduciary or trust relationship between Customer and Ark.
8 WARRANTIES AND DISCLAIMER
8.1 Customer represents and warrants that: (i) Customer owns or has the legal right to use and provide Customer Data in connection with the Services; (ii) Customer will use commercially reasonable efforts to transmit Customer Data to the Services in a secure and encrypted manner consistent with general industry standards and in compliance with applicable laws and regulations; and (iii) Customer has not falsely identified itself or any of its users, nor provided any false information to gain access to the Services.
8.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OR GIVES ANY CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.3 FOR CLARITY, ARK DOES NOT REPRESENT, WARRANT OR GUARANTEE (i) THE RELIABILITY, QUALITY, ACCURACY, AVAILABILITY OR COMPLETENESS OF THE SERVICES, (ii) THAT THE SERVICES WILL MEET CUSTOMER’S OR ITS CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR (iii) THAT ANY RESULTS OR OUTPUT FROM THE SERVICES WILL BE ACCURATE OR RELIABLE. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND ARK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.1 Customer will defend Ark against any claim, demand, suit or proceeding made or brought against Ark by a third party alleging that: (i) Customer is in breach of these Terms; or (ii) the transmission and/or use of Customer Data by Customer infringes or misappropriates such third party’s intellectual property or other rights; or (iii) the Customer’s use of the Services or the results of the Customer’s use of the Services, infringes the intellectual property rights or other rights of a third party, has caused harm to a third party or has breached any applicable laws, regulations or rules, and Customer will indemnify Ark for any damages, liabilities, attorney’s fees and costs finally awarded against Ark, or amount paid in settlement; provided that Ark: (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defence and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Ark from all liability and such settlement does not affect Ark’s business or the Services); (iii) provides Customer all available information and assistance, at Customer’s cost; and (iv) has not compromised or settled such claim.
10 LIMITATION OF LIABILITY
10.1 In no event will Ark or its directors, officers, employees, agents or other representatives be liable for any direct, indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, revenue, data or use, incurred by Customer or any third party, whether in an action in contract or tort, even if such damages were reasonably foreseeable, arising out of or related to the Services or Ark’s relationship with Customer. Ark’s total liability, whether in contract, warrant, tort (including negligence) or otherwise, will in no event exceed the amount of any fees paid by Customer under these Terms in the six (6) months preceding the claim. For any Customer who has not paid any fees to Ark in the six (6) months preceding the claim, such Customer agrees that Customer’s sole and exclusive remedy would be to cease using the Services.
10.2 This limitation of liability will not apply to a party’s indemnification obligations under these Terms, a party’s breach of its confidentiality obligation, a party’s violation of the intellectual property rights of the other party, or any material breach of these Terms by Customer.
11 LINKS AND THIRD PARTY COMPONENTS
11.1 The Website and Services contain links to third-party websites or resources, including but not limited to data provided by Google, Bing, AER, GeoLogic, GDM Pipelines. Customer acknowledges and agrees that Customer is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources.
11.2 Links to third party websites or resources do not imply any endorsement by Ark of the content, products, or services available from such websites or resources. Customer has the sole responsibility for and assumes all risk arising from Customer’s use of any such websites or resources. Customer further acknowledges that Customer’s use of those third party sites and services will be subject to the user terms and policies of each individual site, including terms relating to privacy and order fulfillment when Customer purchases any goods or services from a third party website linked to from the Website.
11.3 All Content, whether publicly posted or privately transmitted, is the sole responsibility of the originator. We may not monitor or control the Content posted through the Services and we cannot take any responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
11.4 Ark does not represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications or endorse any opinions expressed via the Services. Customer understands that by using the Services, Customer may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate. Under no circumstances will Ark be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available via the Services or broadcast elsewhere.
12 GENERAL PROVISIONS
12.1 The failure of Ark to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.
12.2 Customer agrees to be identified as a client of Ark in Ark’s customer lists, on the Ark website and in printed advertising and marketing materials of Ark. Ark will obtain Customer’s consent prior to any other published use of Customer’s name, such consent not to be reasonable withheld. The Customer hereby grants Ark a non-exclusive license to any Customer logos, names or marks used by Customer for the sole purposes of displaying such logos, names or marks on Ark’s website to indicate that Customer is a customer of Ark.
12.3 If any provision of these Terms is invalid, illegal or incapable of being enforced by reason of any rule of law or public policy, all other provisions of these Terms shall nevertheless remain in full force and effect, and no covenant or provision shall be deemed dependent upon any other covenant or provision unless expressly provided for herein.
12.4 The parties acknowledge and agree that, notwithstanding any other provisions of these Terms, a breach of the confidential information obligations in these Terms by a party may cause the other party irreparable damage for which recovery of money damages would be an inadequate remedy, and that such other party will be entitled to seek timely injunctive relief to protect its rights under these Terms in addition to any and all remedies available at law.
12.5 Except in the case of a Specific Agreement as discussed in these Terms, these Terms constitute the entire agreement between the parties and supersedes all prior agreements, whether written or oral, relating to the subject matter of these Terms.
12.6 These Terms shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein and shall be treated in all respects as a British Columbia contract and the parties hereto hereby submit to the exclusive jurisdiction of the courts of the Province of British Columbia located in Vancouver. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
12.7 Customer may not assign any or all provisions of these Terms without Ark’s prior written consent. These Terms are solely for the benefit of the parties hereto, and nothing in these Terms will be deemed to create any third party beneficiary rights in any person or entity who is not a party to these Terms.
12.8 Ark may revise these Terms from time to time and the most current version is at http://www.arkit.io/terms. If the revision, in Ark’s sole discretion, is material Ark will notify Customer using a posting on the Website or an e-mail to the email associated with Customer’s account. By continuing to access or use the Website and Services after those revisions become effective, Customer agrees to be bound by any such revised Terms. If Customer does not agree to any such changes, Customer must cancel Customer’s Subscription Plan in accordance with Section 5 of these Terms.
Last updated: December 9, 2015