MASTER SERVICES AGREEMENT
Version Date: 06/28/2019
This MASTER SERVICES AGREEMENT (“Agreement”) by and between ARK PES, LLC, a Delaware limited liability company with a principal place of business at 535 Boylston Street, Boston, MA 02116 (“ARK”) and the individual or entity identified on the Order Form (“Client”). When Client subscribes to the Service (defined below), or otherwise acknowledge this Agreement, Client shall be bound by and adhere to the terms and conditions set forth below. ARK and Client shall each be referred to herein as a “Party” and together as “Parties.”
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 “Affiliate” means any entity that controls, is controlled by or under common control with a Party, whereby control means the power to direct the management and policies of a Party, whether through ownership of voting securities, by contract or otherwise.
1.2 “Authorized User” means employees, agents and contractors of Client, or its individual investors, that are authorized by Client to use the Software in accordance with Section 2 and the other terms and conditions of this Agreement.
1.3 “Client Data” means any data provided to ARK by Client, whether provided or otherwise transmitted to the Service by Client or its Authorized Users. Client Data includes any Personal Data relating to Client, or its Authorized Users.
1.4 “Confidential Information” means all trade secrets, business and financial information, software, machine and operator instructions, business methods, procedures, know-how, and other information that relates to the business or technology of either Party and is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. Notwithstanding any failure to mark or identify it as such, the Software will be considered ARK’s Confidential Information, and Client Data will be considered Client’s Confidential Information.
1.5 “Data Security Addendum” means the Data Security and Privacy Addendum attached hereto as Exhibit A.
1.6 “Deliverables” means any report, analyses, or other deliverables, including any materials related thereto that ARK provides to Client hereunder, together with all ideas, concepts, processes and methodologies developed in connection therewith, whether or not embodied therein, except, however, that Deliverables exclude the Software, and any forms, formulae, templates, ARK IP, and any other materials not developed for Client hereunder.
1.7 “Documentation” means the technical manuals, instructions and official technical and user documents and materials regarding the Software or Services that ARK provides or makes available to Client in any form or medium which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, but expressly excluding the company webpage, videos, white papers, or other marketing materials.
1.8 “Effective Date” means the date Client enters into the first Order Form for Services hereunder.
1.9 “Fees” means the fees payable by Client under this Agreement for the Services as set forth on the applicable Order Form, in the amounts and subject to the payment terms set forth in the applicable Order Form.
1.10 “Intellectual Property Rights” or “IP” means any and all known or hereafter existing copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing.
1.11 “Order Form” means the ARK web-based subscription interface used for Client to subscribe to the Service, including any applicable price lists for the Service, as well as any supplemental or alternative ordering documentation which may be entered into between the parties in relation to the Service.
1.12 “Order Form Effective Date” with respect to each Order Form hereunder, means the start date for any Services or modules to be provided under such Order Form.
1.13 “Personal Data” means any information about an identifiable person, including without limitation, a person’s full name, address, online contact information, telephone number, any persistent identifier that can be used to recognize that person over time and across different services.
1.14 “Services” means the Software, including any implementations of the Software, and professional services, training, support, and/or other services provided by ARK to Client as described in this Agreement and in any executed Order Form.
1.15 “Software” means ARK’s web-based financial services software application, related application programming interface(s), and any current or future features or â€˜modules’ thereof, or updates, improvements, or modifications thereto, and all Intellectual Property Rights in and to the foregoing.
2. LICENSE GRANT; SERVICES; RESTRICTIONS.
2.2 Client Restrictions. Client will not, and will not permit any other party to: (i) modify, adapt, alter, translate, or create derivative works from the Software other than as provided herein; (ii) sublicense, distribute, sell, lease, rent, loan, or otherwise transfer the Software to any third party other than as provided herein; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for, or trade secrets in, the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation (provided, however, that to the extent Client intends to engage in any of the foregoing, Client will notify ARK in advance of such activity and will treat the results of such activity as Confidential Information of ARK); (iv) remove, alter, or obscure any proprietary notices of ARK, its licensors or suppliers included in the Software; (v) use the Software for purposes of: developing, using or providing a competing software product or service; (vi) use the Software in any manner or for any purpose that knowingly infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person, or that knowingly violates any applicable law; or (vii) bypass or breach any security device, license enforcement utility, method, or operation, or other similar protection used for or contained in the Software or Documentation. For the avoidance of doubt, Client is expressly prohibited from granting access to the Service or using the Service on behalf of or for the benefit of any individual or entity that is a competitor of ARK for purposes of that party’s competition with or development, provision, or use of any competing software or service. Any breach of the restrictions set forth in this Section 2.3 shall be a material breach of this Agreement and ARK may terminate this Agreement pursuant to Section 12.2 hereof.
2.3 Third Party Software. Client acknowledges that portions of the Service, including without limitation, plug-ins, add-ons, application programming interfaces, utilities or scripts that may be provided by ARK to Client may consist of third party software, and use thereof shall be governed by the terms and conditions of the applicable third party software license; provided, however, that ARK will make a copy of such terms available to Client before including or making available such third party software in the Service provided by ARK to Client.
3. CLIENT OBLIGATIONS.
3.1 User Provisioning. Client shall be responsible for authorizing its Authorized Users to access and use the Service by assigning each Authorized User a unique login/password (and disabling the same when appropriate) utilizing the administrative tools within the Services. Further, Client shall maintain the confidentiality of its Authorized Users’ login/password information and notify ARK as soon as reasonably practicable if it becomes aware of any unauthorized access to or use of the Services under an Authorized User’s login/password or otherwise.
3.2 Responsibility for Users. Client shall restrict access and use of the Services to only Authorized Users and assume responsibility to ensure that all Authorized Users comply with this Agreement and all applicable licenses and restrictions on the use of the Software and Services set forth in this Agreement.
4.1 Software and Deliverables. Subject to the license grant to Client in Section 2, the Software and all Intellectual Property Rights therein or thereto, are the exclusive property of ARK or its licensors, and Client hereby waives any claims thereto. Any rights to the Software and Deliverables not expressly granted to Client hereunder are reserved by ARK, its licensors and suppliers. If any third party code or other third party elements are included within the Software, they remain owned by the owners thereof and no rights (other than those granted by any applicable license) are transferred to either party herein. For the avoidance of doubt, and notwithstanding any provision to the contrary in this Agreement, this Agreement shall not be construed to convey to Client any rights of ownership in and to ARK’s Software. The Parties recognize that in the course of providing Services under this Agreement ARK may make changes to the Software as a result of providing the Services, in ARK’s sole discretion. Client agrees that it will not rely on any representations, statements, marketing materials, or other information of ARK regarding planned or future products, or features of the Service, and ARK shall not be obligated to provide, such products or features nor shall such products or features be a condition on any of Client’s obligations hereunder.
4.2 Rights and License to Data & Deliverables. All Client Data shall be owned by Client and Client hereby grants ARK a limited, non-exclusive, non-transferable (except as provided in Section 14.3), non-sublicensable license to use such Client Data during the Term of this Agreement solely for the purpose of providing the Services and in order to fulfill ARK’s obligations under this Agreement. Upon full payment of the applicable Fees for the Deliverables, all right title and interest in any such Deliverables shall vest in the Client as a “work made for hire” as defined in Section 101 of the Copyright Act of 1976; provided, however, that if such Deliverables do not qualify as a work made for hire, ARK hereby transfers, assigns and conveys to Client all right, title and interest in such Deliverables. Notwithstanding anything to the contrary in this Agreement, Client hereby grants ARK and perpetual, worldwide license to Client Data to the extent such Client Data has been aggregated or de-identified, each such that Client is no longer reasonably re-identifiable, to create internal analytics relating to Clients’ use, and the performance of, the Service, and for the marketing or promotion of the Services.
5. CHANGES TO ORDERS.
If, in the course of an engagement, either Party desires to make changes to any work specifications on any Order Form issued under this Agreement, including but not limited to changes in Service features or modules, work to be performed, delivery schedule, or different goals, the Party desiring to make such change shall notify the other, and both Parties shall agree in writing on necessary adjustments to the terms of the engagement, including but not limited to price and schedule adjustments, before any such changes are incorporated into said Order Form.
ARK will provide Client reasonable remote help desk support via email. ARK will use commercially reasonable efforts to reply to requests within 2 business hours. Regular business hours are Monday to Friday, 8am to 5pm Pacific Time, excluding all then- current U.S. Federal holidays (should any of these days fall on a weekend, the closest day before/after the weekend will be observed). If Client requests remote technical support, or other support beyond the coverage provided above, such support shall be provided at ARK’s then-current rates. The support services described in the first sentence of this Section 6 shall not include any services relating to the manipulation, upload, or reconciliation of Client Data.
7. DATA SECURITY; HOSTING.
7.1 Data Security. ARK will provide the Services in compliance with the Data Security Addendum and ARK will implement reasonable security measures that are consistent with and meet industry standards regarding confidentiality, remote access, and data security and safety to secure Client Data taking into account the risk of the harm from disclosure and the costs to secure such information.
7.2 Hosting. ARK will manage the hosting of the Software and Client Data uploaded thereto on ARK’s system (the “ARK System”). ARK will use commercially reasonable efforts to make the ARK System generally available 24 hours a day, 7 days a week. From time to time, however, and as may be necessary to maintain the proper operation of the ARK System, ARK may take the ARK System or portions thereof down for repairs, upgrades or routine maintenance. ARK will use commercially reasonable efforts to minimize the impact to Client of such operations, and whenever practicable ARK, will provide to Client at least five (5) days prior written notice of ARK’s plan to take down the ARK System or portions thereof for routine maintenance purposes, and will give notice in a reasonable time in advance of any unplanned or emergency maintenance or ARK System outage. Without limiting the foregoing or any other provisions of this Agreement, ARK will have no liability for (i) Client-caused outages or disruptions to the ARK System, or (ii) problems due to the performance of networks or systems controlled by companies or entities other than ARK. In addition, Client understands that although ARK will implement and maintain reasonable security measures, it cannot guarantee that malicious data breach attacks will not occur and ARK will not be liable for damages sustained by Client as a result of any such data breach, unless and to the extent such data breach was caused in whole or in part by ARK’s breach of this Agreement or by the recklessness gross negligence, or willful misconduct, or fraudulent conduct of ARK. It is Client’s responsibility to stay current with ARK’s then-current minimum technical requirements for use of the Software and other Services provided by ARK to Client in writing.
8. FEES, PAYMENT AND TAXES.
8.1 Generally. Client shall pay the Fees per each module ordered, each as set forth on the Order Form. All Fees are payable in US Dollars. Unless otherwise provided on the Order Form, price changes take effect either (a) at the beginning of each Order Term or (b) at such other time as is set forth on the Order Form. All payment obligations are payable in advance and are non-cancelable and non-refundable. Unless otherwise provided on the Order Form, non-invoiced payments will be due and payable starting on the later of (i) the Order Form Effective Date upon the first day of each Order Term. By providing credit card, ACH, or other payment information on the Order Form, Client acknowledges and agrees that the Fees will be drafted automatically, and Client’s consent to such automatic charges or withdrawals. Client agrees to keep its payment information current and accurate. If ARK agrees in writing to accept payment by invoice, invoices may be delivered by email, and all Fees not subject to a good faith dispute are due and payable thirty (30) days from the invoice date, and except as agreed in writing between the Parties, all Fees and other amounts payable to ARK should be paid by EFT or wire transfer (if by wire, ARK may charge a $30 fee per wire transfer) to:
Ark PES, LLC
535 Boylston Street
Boston, MA 02116
8.2 Nonpayment. . Client shall be deemed in default of this Agreement if any Fees or other invoiced amounts that are not disputed in good faith remain unpaid sixty (60) days after its receipt of the invoice. Client must give ARK notice of any dispute regarding an invoice within forty-five (45) days of its receipt of such invoice, or Client’s right to dispute that invoice shall be waived. Late payments of any undisputed Fees by Client will be subject to late fees at the rate of one and one half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. If any undisputed amounts payable are not received within sixty (60) days of the date of the relevant invoice, ARK may suspend the Services upon 15 days prior written notice to Client., without penalty or liability to ARK.
8.3 Taxes. Except as provided in an Order Form or other agreement between the Parties, the Fees charged to Client hereunder do not include any tax, including VAT, or other withholdings imposed by law on any paid or invoiced transaction through the Services, on the Fees, or on Client’s use of the Services; provided, however, that ARK shall not be responsible for taxes based on ARK’s net income.
10.1 “Losses” means losses, liabilities, damages, fines, penalties, settlements, judgments, costs and expenses, including reasonable attorneys’ fees and expert fees, and interest (including taxes) arising out of a third party claim.
10.2 Indemnity by ARK. ARK will indemnify, defend and hold harmless Client and Client’s officers, directors, employees, successors and assigns (the “Client Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by a Client Indemnified Party or to which a Client Indemnified Party becomes subject, resulting from, arising out of, or relating to: (i) claims that the ARK Software or the ARK System violates the US IP rights of any third party, or (ii) injury or death, or damage to any property caused by or arising from the negligent acts or omissions of ARK in connection with performance of the Agreement. The scope and extent of ARK’s liability under this Agreement shall be subject to the limits set forth in Section 11.
10.3 Remedies for Infringement. Should any IP owned by, licensed to, or provided to Client by ARK (“ARK IP”) become or, in ARK’s opinion, be likely to become the subject of any infringement claim, ARK shall have the right, at its sole discretion and at its expense, to either procure for Client the right to continue using or receiving the ARK IP, or replace or modify the ARK IP so it becomes non-infringing. SECTIONS 10.2 AND SECTION 10.3 STATE ARK’S ENTIRE LIABILITY, AND SUBJECT TO SECTION 12.2, CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY RIGHTS CLAIMS RELATING TO OR ARISING OUT OF ANY ARK IP. ARK shall have no obligation to Client for indemnification to the extent that the ARK IP infringement claim or allegation is based on: (i) a modification to the ARK IP made by Client; (ii) a violation by Client of this Agreement; or (iii) the inclusion by Client of any Client Data or third party IP in any ARK IP; if the claim would not have arisen but for such modification, violation or inclusion of Client Data or third party IP, respectively.
10.4 Client Indemnity. Client will indemnify, defend and hold harmless ARK and ARK’s officers, directors, employees, successors and assigns (the “ARK Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by an ARK Indemnified Party or to which an ARK Indemnified Party becomes subject, resulting from, arising out of, or relating to any third party claim that any Client Data provided by Client to ARK hereunder violates the US intellectual property rights of any individual or third party. Should any Client Data provided to ARK by Client become or, in Client’s opinion, be likely to become the subject of any intellectual property infringement claim, Client shall have the right, in its sole discretion and at its expense, to either procure for ARK the right to continue using the Client Data, or replace or modify the Client Data so it becomes non-infringing. THIS SECTION 10.4 STATES CLIENT’S ENTIRE LIABILITY, AND SUBJECT TO SECTION 12.2, ARK’S SOLE AND EXCLUSIVE REMEDY, FOR INTELLECTUAL PROPERTY RIGHTS CLAIMS RELATING TO OR ARISING OUT OF ANY CLIENT DATA. Client shall have no obligation to ARK for indemnification to the extent that the infringement claim or allegation is based on: (i) modification to the Client Data by ARK; (ii) a violation by ARK of this Agreement; or (iii) the combination of the Software and the Client Data if the claim would not have arisen but for such modification, violation or combination, respectively. The scope and extent of Client’s liability under this Agreement shall be subject to the limits set forth in Section 11.
10.5 Indemnification Procedures. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will promptly give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim, provided however that the failure to give such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent that such Indemnitor is materially prejudiced by such failure. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.
11. LIMITATION OF LIABILITY.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EVEN IF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND (II) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL EXCEED THE FEES PAID OR PAYABLE BY CLIENT IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. Notwithstanding anything to the contrary set forth herein, the limitations of liability set forth in this Section 11 shall not apply to each Party’s obligations to protect the other Party’s Confidential Information in accordance with Section 13 of this Agreement or to the indemnification obligations of each Party hereunder, provided that ARK’s total cumulative liabilities in such instances shall not exceed the total amount payable to ARK under all ARK insurance policies providing coverage for such losses or liabilities.
12. TERM AND TERMINATION.
12.1 Term. This Agreement shall commence as of the Effective Date, and unless earlier terminated in accordance with this Agreement, remain in effect until all Order Forms expire (the “Term”). Each Order Form shall remain in effect for: (a) 12 months from the Order Form Effective Date; (b) for any other period identified on the Order Form (which may vary for certain services or modules) (each such period, the “Order Term”). Unless a fixed end date is specified in the Order Form, and unless earlier terminated in accordance with this Agreement, each Order Form shall auto-renew upon expiration of the Order Term. For annual subscriptions, the Order Term shall automatically renew for additional periods equal to one (1) year, unless a party provides the other written notice of non-renewal at least thirty (30) days before the end of the Term. For quarterly or month-to-month subscriptions, the Order Term shall automatically renew for additional quarterly or monthly terms (as appropriate), unless Client terminates the Agreement upon no less than 14 days’ written notice prior to the end of each then-current quarterly or monthly Order Term.
12.2 Mutual Termination Rights. Either Party may terminate this Agreement or any Order Form upon written notice of termination if the other Party: (i) defaults in the performance of any material obligation created by this Agreement, or breaches any material provision of this Agreement, which default or breach is not cured within thirty (30) days following the defaulting Party’s receipt of written notice of default or breach from the other Party; (ii) ceases doing business in the normal course; (iii) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within ninety (90) days; or (iv) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other Party’s assets. If either Party terminates this Agreement as set forth above, then all Order Forms to this Agreement shall also immediately terminate. Either Party may terminate this Agreement immediately upon written notice if the other Party, in any manner, breaches Section 13 (Confidentiality).
12.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (i) any undisputed amounts owed to ARK under this Agreement prior to such termination or expiration will be immediately due and payable; (ii) all licensed rights granted to Client in this Agreement will immediately cease to exist; (iii) Client will promptly discontinue all use of the Software and Services and (iv) ARK will immediately cease all use of the Client Data and promptly will return to Client all Client Data in ARK’s possession or control. Upon the effective date of any such termination, the obligation of ARK to provide the Services and access to the Software shall cease. Client agrees that (i) all undisputed fees for Services performed, and all related expenses incurred, shall accrue through the effective date of termination, and Client is obligated to pay ARK, without any holdback, demur or recourse, all such fees and expenses incurred by ARK through the effective date of termination.
(a) No Consequential Damages. Except for each Party’s obligations under Section 10 and Section 13 of this Agreement, upon termination of this Agreement for any reason, neither Party shall be liable to the other because of such termination for consequential damages, including but not limited to claims for loss of profits, good will, tangential expenditures or commitments in connection with the business of Client or ARK, or for any reason whatsoever flowing from such expiration or termination.
(b) Survival. Sections 1, 2.2, 2.3, 4, 9, 10, 11, 12.2(b)-(c), 13 and 14, as well as any undisputed payment obligations outstanding as of termination, will survive termination of this Agreement for any reason.
13.1 Protection. The Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 13 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its agents or representatives.
13.2 Exceptions. The Receiving Party’s obligations under Section 13.1 above with respect to any Confidential Information of the Disclosing Party will not apply if the Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding, in which case any such disclosure shall be subject to a court approved protection order; or (iii) required by law or by the order of a court or similar judicial or administrative body, in which case the Receiving Party will notify the Disclosing Party of such required disclosure in writing prior to making such disclosure and will cooperate with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
14. GENERAL PROVISIONS.
14.1 CUSTOMER REFERENCE. Subject to Client’s prior written approval on a case-by-case basis (which may be withheld in Client’s sole discretion), Client grants ARK the right to use Client’s name and logo on the ARK website and identify Client as a customer of ARK. Client grants ARK a limited, non-transferable (except as provided in Section 14.4), revocable license to any trademarks in such name and/or logo solely for these purposes.
14.2 Compliance with Laws and Regulations. Client will comply with all applicable laws and regulations concerning Client’s use or sublicensing of the Software, including without limitation all applicable data privacy laws and regulations. ARK will comply with all applicable laws and regulations concerning licensing of the Software and the provision of the ARK System hereunder, including without limitation all applicable data privacy laws and regulations, to the extent the application of such laws are known or made known to ARK. Client will not use or make the Software available outside the United States unless express written permission is granted by ARK with regard to each country, or unless expressly authorized in the applicable Order Form by means of the designation of the licensed “Territory” or otherwise.
14.3 Audits. Client shall maintain, and provide to ARK upon reasonable written request of ARK (which may be made no more than once per year), such relevant records as may be reasonably required to demonstrate Client’s compliance with this Agreement (an “Audit”). The Audit will be conducted at ARK’s expense, unless the Audit reveals that Client has failed to materially comply with the terms and conditions of this Agreement, in which case Client will reimburse ARK for all reasonable costs and expenses incurred by ARK in connection with such Audit in addition to any unpaid Fees (inclusive of any accrued interest under Section 8.2).
14.4 Assignment. Client may not assign or transfer any of its rights under this Agreement to any third party without ARK’s prior express written consent, which shall not be unreasonably withheld or delayed; provided, however, that Client may assign this Agreement to any successor in interest, to its business or arising from the sale of all or substantially all of the assets, or the sale of stock, of Client, through any merger or acquisition or internal reorganization of Client. ARK may not assign or transfer any of its rights under this Agreement to any third party without Client’s prior express written consent, which shall not be unreasonably withheld or delayed, except that ARK will have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or internal reorganization. Any attempted assignment or transfer by either Party in violation of the foregoing will be null and void.
14.5 Notices. All notices, consents, and approvals under this Agreement that are to be sent to ARK must be delivered in writing by email or fax (both of which are not deemed delivered until confirmation of receipt is obtained from the intended recipient), courier, or certified or registered mail, (postage prepaid and return receipt requested) to the address specified in the Order Form (or other address as may be specified by a Party from time to time upon written notice to the other), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
14.6 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware without reference to its choice of law rules. Any action or proceeding arising from or relating to this Agreement will be brought in a federal or state court in Wilmington, Delaware, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
14.7 Arbitration. ARK and Client agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration before a single arbitrator. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Boston, Massachusetts, or any other location both parties agree to in writing.
14.8 Remedies. Except as otherwise expressly provided in Section 9, the Parties’ rights and remedies under this Agreement are cumulative. Client acknowledges that the Software contains valuable trade secrets and proprietary information of ARK, that any actual or threatened breach of Client’s obligations with regard to exercising its license or right to grant sublicenses hereunder, or its confidentiality obligations hereunder, may result in immediate, irreparable harm to ARK for which monetary damages would be an inadequate remedy, and that injunctive relief may be an appropriate remedy for such breach and, if so, is to be made available to ARK without the requirement of posting bond. ARK acknowledges that the Client Data constitutes Confidential Information of Client, that any actual or threatened breach of ARK’s confidentiality obligations hereunder with respect to Client Data may result in immediate, irreparable harm to Client for which monetary damages would be an inadequate remedy, and that injunction relief may be an appropriate remedy for such breach and, if so, is to be made available to Client without a requirement of posting bond.
14.9 Force Majeure. Neither Party shall be liable for failure or delay in the fulfillment of any of its obligations hereunder (excluding payment of Fees) where such failure is due to war, riot, strike, labor dispute, civil disturbance, rebellion, invasion, terrorist attack, embargo, national or local emergency, natural disaster, acts of God, flood, fire, malfunction of equipment or facilities, failure by the other Party or a third party to perform a prerequisite necessary to fulfill such obligation, or any other cause beyond its reasonable control. The Party unable to fulfill its obligations due to such a force majeure event shall use diligent efforts to restore its performance thereof as soon as reasonably possible.
14.10 Headings. Section headings in this Agreement are included for convenience only and shall not affect the interpretation of the provisions in this Agreement.
14.11 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
14.13 Entire Agreement. This Agreement, including the exhibits hereto, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
14.14 Updates. ARK reserves the right to modify or update this Agreement at any time, in its sole discretion. ARK will notify Client to the extent ARK makes any changes to the Agreement. Client’s use of the Services after any changes will constitute Client’s acceptance of such changes. Client’s sole remedy if Client does not agree to any change is to cease all use of the Services or, in the case of a material change only, to terminate the Agreement as set forth in Section 12.
Data Protection Terms
These Data Protection Terms (the “DPA”) describes each Party’s obligations with respect to its handling of Personal Data provided under the Master Services Agreement between ARK PES, LLC and the individual or entity identified on the Order Form (the “Agreement”). This DPA is hereby incorporated into and made a part of the Agreement. Any capitalized terms not defined herein will have the definitions used in the Agreement. The terms of this DPA will control to the extent inconsistent with the Agreement.
1. Definitions. In this DPA, these terms will have the following meanings:
“Data Protection Laws” means all laws, statutes, regulations, rules, treaties, executive orders, directives, opinions, guidance, or other official releases regarding data protection, privacy, data security, confidentiality, and breach notification that are then in effect and applicable to a Party or the Personal Data Processed under the Agreement including, without limitation: Regulation 2016/679 (“GDPR”), Directive 2002/58/EC (the “ePrivacy Directive”), and any laws implementing the foregoing, or implemented in European Union Member States thereunder, and any successor directives or regulations thereof then in effect; and any data protection laws in the UK following any exit by the UK from the European Union (collectively, “EU Privacy Laws”); all U.S. Federal Trade Commission (“FTC”) rules, regulations and guidance relating to the collection, use, disclosure and Processing of Personal Data; C.R.S. Â§ 6-1-713 et seq. Massachusetts law 201 CMR 17.00 et seq.; and Cal. Civ. Code Â§Â§ 1798.80 et seq., 1798.100 et seq.
The terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process” and “Processor” have the same definitions as in the GDPR.
2. Compliance with Data Protection Laws. Each Party will comply with all applicable Data Protection Laws, as well as all other laws, rules and regulations applicable in relation to the Party’s Processing of Personal Data. Without limiting the foregoing sentence: (i) Client shall comply with all Data Protection Law relating to the collection and transfer of Personal Data to ARK; and (ii) ARK shall comply with all Data Protection Law relating to the transmission, processing and storage of Personal Data from Client and Authorized Users.
3. Description of Data Processing. Processor will Process Personal Data only for the purposes of providing the Services as set forth in the Agreement. For avoidance of doubt, as between ARK and Client, Client is the sole and exclusive owner of all Personal Data.
4. Processing. ARK will, and is hereby authorized to, Process Personal Data solely on the documented instructions of Client, including without limitation, as is reasonably necessary to perform its obligations under the Agreement (and any additional agreements and order forms entered into between the parties thereunder), unless required to do so by law to which ARK is subject, and ARK notifies Client of such legal requirement before Processing (except where the law prohibits such disclosure on public interest grounds).
5. Authorized Persons. ARK will ensure that persons authorized to Process the Personal Data are under an appropriate contractual or statutory obligation of confidentiality with respect to such Personal Data.
6. Termination. ARK will, subject to any transition periods or other processing the parties agree may occur following termination or expiration, cease Processing Personal Data upon the termination or expiration of the Agreement, and within a reasonable time thereafter delete all copies of Personal Data except where applicable law requires the retention of such Personal Data.
7. Security. ARK will implement and maintain reasonable and appropriate administrative, technical, and procedural measures designed to ensure a level of security that reasonably mitigates the risk of unauthorized access, use, disclosure, modification or other processing of Personal Data. ARK may modify its security controls, process, or procedures in its sole discretion, provided that the level of security protecting Client’s Personal Data shall always meet the requirements of this Section 7 and applicable Data Protection Law.
8. Subprocessing. Client hereby authorizes ARK to appoint additional Processors to Process Personal Data on ARK’s behalf or perform its obligations under the Agreement (“Subprocessor”). ARK will perform reasonable due diligence to ensure that any Subprocessors comply with the ARK’s Processing obligations under this DPA. ARK accepts liability for, and shall remain liable to Client with respect to, third parties’ Processing of Personal Data
9. Confidentiality and Nondisclosure. All Personal Data disclosed or made available to ARK hereunder is deemed Confidential Information of Client, subject to all the obligations of confidentiality set forth in the Agreement, whether or not such Personal Data is marked or otherwise indicated as being Confidential Information.
10. Return of Data. At any time during the Term, at Client’s written request, or upon the termination or expiration of the Agreement for any reason, ARK shall, and shall instruct all Authorized Persons to, promptly return to Client all copies, whether in written, electronic, or other form or media, of Personal Data in its possession or control, or the possession or control of such Authorized Persons, or securely dispose of all such copies, and provide an officer of ARK’s written certification to Client that such Personal Data has been returned to Client or disposed of securely. ARK shall comply with all reasonable directions provided by Client with respect to the return or disposal of Personal Data, including without limitation returning the Personal Data in the format reasonably requested by Client.
11. Data Incidents. ARK will notify Client without undue delay if ARK becomes aware of a Personal Data Breach affecting Personal Data Processed by ARK under this Agreement. Such notice will include information, to the extent known by ARK, which may be necessary for Client to comply with applicable Data Protection Laws, and ARK will provide Client with updates to such information, and assist Client, each as reasonably necessary for Client to meet its obligations under applicable Data Protection Laws.
12. Data Subject Rights. Each Party will promptly notify the other of any communication from a Data Subject or supervisory authority regarding: (i) the Processing of Personal Data under the Agreement; (ii) a Party’s compliance with the terms of this DPA; or (iii) a Data Subject’s exercise of rights under applicable Data Protection Laws. Notifications to ARK should be sent to firstname.lastname@example.org. To the extent reasonably necessary given the nature of the Party’s Processing, each Party will use commercially reasonable technical and organizational means to assist the other Party in the fulfilment of its obligations in relation to a Data Subject’s exercise of its rights under applicable Data Protection Laws, or in connection with any response to Data Subjects or supervisory authorities. To the extent Client, in its use of the Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws, ARK shall comply with any commercially reasonable request by Client to facilitate such actions to the extent ARK is legally permitted to do so. To the extent legally permitted, Client shall be responsible for any reasonable costs arising from ARK’s provision of such assistance requested by Client.
13. Assistance. To the extent necessary in relation to ARK’s Processing of Personal Data hereunder, ARK will provide reasonable assistance to Client with any data protection impact assessments or any prior consultations with supervisory authority which may be required under applicable Data Protection Laws.
14. Information. Each Party will maintain, and the ARK will make available to Client upon reasonable notice (and subject to any applicable requirements or limitations regarding audit timing, access, and/or confidentiality), such information as is reasonably necessary to demonstrate such Party’s compliance with the terms of this DPA and the Data Protection Laws.
15. Amendment. In the event a change in applicable data protection law requires an amendment to this DPA, ARK may upon thirty (30) days prior written notice to Client, update or revise this DPA as and to the extent required by applicable Data Protection Laws. Any amended version of this DPA shall take effect after such thirty (30) day period unless Client provides written notice of its reasonable objections during such period. In the event of reasonable Client objections, the Parties shall negotiate in good faith to amend this DPA to conform to the relevant requirements of applicable Data Protection Laws.
16. Non-Compliance Notice. ARK will promptly inform Client if, in its opinion, an instruction of Client violates any Data Protection Laws. Further, in the event ARK (or Subprocessor or other third party to whom ARK discloses Personal Data) is unable to comply with applicable Data Protection Laws, ARK shall promptly notify Client and either (i) promptly take all steps necessary to comply with all applicable Data Protection Laws, or (ii) cease Processing Personal Data to the extent not compliant with applicable Data Protection Laws.
17. Processing of EU Personal Data. The following shall apply solely to the extent ARK processes information subject to EU Privacy Laws:
17.1 Roles of the Parties. The parties acknowledge and agree that with regard to the processing of EU Personal Data, Client is the data “controller”, and ARK is a “processor”.
17.2 Client’s processing of EU Personal Data. Client’s instructions to ARK, for the processing of EU Personal Data, shall comply with EU Privacy Law, and ARK shall notify Client in the event ARK believes the Client’s instructions violate applicable EU Privacy Laws.
17.3 Subprocessing. Client acknowledges that specific Subprocessors vary based on the services provided under the Agreement, and Client may request a list of Subprocessors intended to process Personal Data on Client’s behalf by submitting a request to Client’s ARK account representative. ARK will inform Client, in the manner determined by ARK in its sole discretion, of any new Subprocessors if ARK intends to engage or change Client’s Subprocessors. Client shall have the right to object to the engagement of such Subprocessor for reasonable cause.