2. These Terms impose obligations in addition to the obligations contained in any service agreement in place between a Customer and Ark (each, an “Individual Services Agreement”) and Customer acknowledges and agrees that, subject to any inconsistency between these Terms and the terms of any such Individual Services Agreement, whether such Individual Services Agreement was entered into before or after the Customer that is party to such Individual Services Agreement agrees to these Terms, these Terms and such Individual Services Agreement govern the relationship between such Customer that is party to the Individual Services Agreement and Ark and such Customer’s use of the Services and Software. For greater certainty, to the extent of any inconsistency between these Terms and an Individual Services Agreement, the Individual Services Agreement will govern in respect of the Customer that is party to the Individual Services Agreement, and all other provisions in these Terms that do not conflict with the Individual Services Agreement will remain in place and will remain in full force and effect in respect of such Customer.
3. “Services and Software” means a non-exclusive license to access and use the software platform including interfaces, templates, techniques, tools, protocols, designs, processes, algorithms, know-how, applications and other technology and services that enable Customers to plan, create, visualize, manage and collaborate on field projects through the Website. The Services and Software are accessible through the Website and associated domains.
4. Ark retains the right to determine or alter content, functionality and all other aspects of the Services and Software at any time.
5. The Services and Software may only be used by individuals: (a) who are authorized by Customer, if Customer is an entity other than an individual, to use the Services and Software and who are bound to use the Services and Software in accordance with these Terms (the “Customer Users”), (b) who use the Services and Software only for business purposes of the Customer; and (c) who have been supplied user identifications and passwords by Customer (or by Ark at Customer’s reasonable request). Customer User subscriptions, identifications and passwords are for their designated users only and must not be shared or used by more than one Customer User. Customer is responsible for safeguarding the passwords that are provided to Customer to access the Website and Services and Software and Customer is solely responsible for any activities or actions under Customer’s passwords, including, but not limited to, any breach by any Customer User of these Terms.
6. For greater certainty, Customer will be responsible and liable for all acts and omissions of its Customer Users and all activity occurring under its user subscription accounts. Customer will, and Customer will ensure that all of its Customer Users, comply with all applicable laws and regulations in connection with use of the Services and Software by Customer and the Customer Users, including those related to privacy and the transmission and export of technical or personal data. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Software and to notify Ark immediately of any such unauthorized access or use or any other known or suspected breach of security; and (b) report to Ark immediately, and use reasonable efforts to prevent and stop, any unauthorized copying or distribution of the Services and Software or any portion thereof.
7. Customer will not, will not permit any another person to, and will ensure the Customer Users do not:
(a) display or transmit spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful material, including material which may violate third party privacy rights using any portion of the Website and Software and Services;
(c) engage in any illegal, offensive or unauthorized conduct including but not limited to hacking, accessing, tampering with, or using non‑public areas of the Services and Software, 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 and Software, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services and Software; 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 and Software; create or post shill reviews for Customer’s own business, products and services or those of any other user of the Website and Services and Software; modify or make derivative works based upon the Services and Software; create internet “links” to the Services and Software or “frame” or “mirror” the Services and Software or any part thereof on any other server or wireless or internet‑based device; or reverse engineer or access the Services and Software in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Services and Software; or otherwise copy any ideas, features, functions or graphics of the Services and Software;
(d) interfere with or disrupt the integrity or performance of the Services and Software or the data contained therein;
(e) attempt to gain unauthorized access to the Services and Software or the related systems or networks of the Services and Software;
(f) attempt to gain access to the Services and Software other than as permitted in these Terms;
(g) access or use the Services and Software for the purposes of monitoring the availability, performance or functionality or for any benchmarking or competitive purposes of the Services and Software;
(h) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services and Software.
8. 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 and Software, including, but not limited to, any third party data obtained by Customer.
9. Customer is solely responsible for lawfully obtaining all Customer Data, 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 Software, and will create and maintain copies of all Customer Data uploaded to the Services and Software.
10. Customer grants Ark a non‑exclusive, royalty free, limited license to access and use Customer Data solely as necessary to deliver the Services and Software and perform Ark’s obligations under these Terms.
11. Ark will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security and confidentiality of Customer Data. Ark will not (a) modify Customer Data, except as required to provide the Services and Software, (b) disclose Customer Data except as expressly permitted in these Terms or by Customer in writing, or (c) access Customer Data except to provide the Services and Software and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. Ark will not, and has no obligation to, update or maintain any Customer Data uploaded and used by Customer in connection with the Services and Software, and, 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. For greater certainty, Ark may use and disclose non-personal Customer Data for business development purposes.
12. Customer acknowledges and agrees that Ark may cache data generated through use of the Services and Software and may, from time to time, access, review and use such data to test, assess and diagnose the operation of the Services and Software; 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 contained in the Services and Software 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.
13. Customer hereby covenants, represents and warrants that up to the date hereof, it has complied with all applicable laws and covenants that it will continue to comply with all applicable laws.
14. Customer’s use of the Services and Software may be terminated in accordance with any Individual Services Agreement in place specifically between Customer and Ark, and if there is no such Individual Services Agreement or if such Individual Services Agreement does not otherwise specify rights of termination, Customer’s use of the Services and Software may be terminated by Ark or Customer at any time.
15. Upon termination of Customer’s use of the Services and Software for any reason, if requested by Customer in writing, Ark will return Customer Data to Customer in the original format in which such Customer Data was uploaded to the Services and Software. All Customer Data remaining in Ark’s systems one hundred and twenty (120) days after termination may be permanently deleted and destroyed at Ark’s sole discretion.
16. Ark reserves the right to change the form and nature of the services Ark provides from time to time without prior notice to Customer. In addition, Ark may stop providing access to or aspects of the Website and/or Services and Software (or any features within the Services and Software) without prior notice.
17. Ark also reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and Software and to terminate users or reclaim usernames, including the Customer’s usernames.
18. Ark reserves the right to access, read, preserve, and disclose any information as Ark reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (d) protect the rights, property or safety of Ark’s users and the public.
19. 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 Software and all intellectual property rights therein. Customer will indemnify and save harmless Ark for any losses, damages or claims resulting from any infringement of Ark’s intellectual property rights that is caused by Customer’s failure to abide by these Terms or from any other breach by Customer or Customer Users of these Terms and the terms of any applicable Individual Services Agreement.
20. Customer hereby irrevocably assigns to Ark all rights, including moral rights, to any suggestions, comments or other feedback relating to any aspect of the Services and Software or any customizations that Customer provides to Ark (the “Feedback”). For the absence of doubt, Ark may use such Feedback in the Services and Software 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 of 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 reimbursement of any kind from Ark or from any of Ark’s representatives, successors or assigns.
21. 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 and Software, Customer hereby authorizes Ark to host, copy, transmit, display and adapt such Customer Data, solely as necessary for Ark to provide the Services and Software 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 represents and warrants that it has all the rights, power and authority necessary to grant the rights granted herein to any Customer Data that Customer submits.
22. By virtue of these Terms, each party may have access to the other party’s (the “Discloser”) information that is confidential, including, but not limited to, the Services and Software 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 (collectively, “Confidential Information”). A Discloser’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 (the “Recipient”); (ii) was in the Recipient’s lawful possession prior to the disclosure as evidenced by written documents; (iii) is lawfully disclosed to the Recipient by a third party without restriction on disclosure; or (iv) is independently developed by the Recipient without the use or benefit of the Discloser’s Confidential Information as evidenced by written records. Customer will not disclose the results of any benchmark tests of the Services and Software to any third party without Ark’s prior written approval. Each of the parties agrees to hold the other party’s Confidential Information in confidence from the time of Customer’s initial engagement with the company and in perpetuity thereafter. Each of the parties agrees, unless otherwise required by law, not to make the other party’s Confidential Information available in any form to any third party or to use the other party’s Confidential Information for any purpose other than the purposes of this Agreement. For greater certainty, Recipient will hold all Confidential Information in strict confidence and will not disclose any Confidential Information to any third party, other than to its employees, subsidiaries, other affiliates, consultants, legal, financial and other professional advisors (the “Representatives”) who need to know such information for the purposes of these Terms and the use and provision of the Services and Software in accordance with these Terms and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Each party agrees to take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. Any confidentiality provisions contained in this Section 23 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 Recipient must make commercially reasonable efforts to provide Discloser with written notice of such disclosure within a reasonable period of time prior to such disclosure in order to facilitate Discloser 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 Recipient will disclose only the minimum amount of information required by such law or government or court order. Nothing in this Section 23 creates a fiduciary or trust relationship between Customer and Ark.
23. The Website and Services and Software contain links to third‑party websites or resources. Customer acknowledges and agrees that Ark 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.
24. 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.
25. 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 Software and we cannot take any responsibility for such Content. Any use or reliance on any Content or materials posted via the Services and Software or obtained by you through the Services and Software is at your own risk.
26. 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 and Software. Customer understands that by using the Services and Software, 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 and Software or broadcast elsewhere.
27. Customer represents and warrants that: (i) Customer owns or has the legal right to use and provide Customer Data in connection with the Services and Software; (ii) Customer will use commercially reasonable efforts to transmit Customer Data to the Services and Software in a secure and encrypted manner consistent with general industry standards and in compliance with applicable laws and regulations; and (ii) Customer has not falsely identified itself or any of the Customer Users, nor provided any false information to gain access to the Services and Software.
28. 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.
29. 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.
30. Customer will indemnify and save harmless 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 and Software or the results of the Customer’s use of the Services and Software, 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 (each, a “Claim”), and Customer will indemnify and save harmless Ark for any damages, liabilities, attorney’s fees and costs finally awarded against Ark, or amount paid in settlement in respect of a claim; 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 without Ark’s prior written consent and unless Customer unconditionally releases Ark from all liability and such settlement does not affect Ark’s business or the Services and Software); (iii) provides Customer all available information and assistance in respect of the Claim, at Customer’s cost; and (iv) has not compromised or settled such Claim.
31. ARK SHALL NOT BE LIABLE FOR COSTS OF SUBSTITUTES OR LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THESE TERMS AND ANY APPLICABLE INDIVIDUAL SERVICES AGREEMENT, HOWEVER CAUSED, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. ARK’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND ANY APPLICABLE INDIVIDUAL SERVICES AGREEMENT (OR PERFORMANCE OR BREACH THEREOF) WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT OF FEES RECEIVED BY ARK FROM CUSTOMER UNDER THESE TERMS OR ANY APPLICABLE INDIVIDUAL SERVICES AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING A CLAIM, OR FOR ANY CUSTOMER WHO HAS NOT PAID ANY FEES TO ARK IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, SUCH CUSTOMER AGREES THAT SUCH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SERVICES.
32. This limitation of liability will not apply to a party’s indemnification obligations under these Terms, a party’s breach of its confidentiality obligations under these Terms, a party’s violation of the intellectual property rights of the other party, or any material breach of these Terms by Customer.
33. 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.
34. 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 unreasonably withheld. The Customer hereby grants to Ark a non‑exclusive license to all 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.
35. Customer acknowledges and agrees that a breach of the confidential information obligations in these Terms by Customer may cause Ark irreparable damage for which recovery of money damages would be an inadequate remedy, and that Ark 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.
36. Except as stated in Section 2 of these Terms, these Terms constitute the entire agreement between the parties and supersede all prior agreements, whether written or oral, relating to the subject matter of these Terms.
37. These Terms will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable in that Province without reference to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
38. 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.
39. Ark may revise these Terms from time to time and the most current version is at http://www.arkit.io/terms. Ark will notify Customer of any revisions to these Terms using a posting on the Website or e‑mail to the email associated with Customer’s account. By continuing to access or use the Website and Services and Software after those revisions become effective, Customer agrees to be bound by any such revised Terms.
Last Updated: May 20th, 2017