You are agreeing to the terms outlined in this agreement in which you are hereby referred to as the client and Arcade Solutions, Inc, a Delaware corporation, is hereby referred to as the service provider you as the client agree to follow and be bound by the terms and conditions of this agreement you are also confirming that you have the explicit authority to bind such entity the client to the terms and conditions of this agreement
The following definitions apply in these terms:
Authorized Users - Your employees, agents and independent contractors who you authorize to use the Services and the Documentation and for whom subscription to the Services have been ordered and who have been supplied User Identifications.
Business Day - A business day, which excludes weekends and public holidays in the State.
Claim - A claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Consequential Loss - Any special, indirect, incidental, consequential or economic loss (including loss of profits, revenue, savings, opportunity or goodwill), even if the possibility of such a loss being suffered has been brought to the attention of the relevant party.
Content - All forms of information, including text, voice, pictures, animations, video, sound recordings, software, separately or combined, sent and received across a network.
Device - Any hardware used to access our Service.
Documentation - The user manual and/or other written materials provided by Service Provider in relation to the Services and Software functionalities and use instructions.
Enhancements - New releases and updates of the Service generally made available by us containing new features or functions of performance.
User ID - The unique user identity used to access the Arcade service.
Fee - The fee payable in U.S. dollars (USD) for a License to access the Service on a per Authorized User basis as agreed between you and us from time to time.
Government Agency - A government or governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
Intellectual Property - All Intellectual Property Rights in or relating to the Service, including all programming and software elements, any derivative works and all of our copyrights, trademarks or any other identifying characteristics used in relation to the Services.
Intellectual Property Rights - All statutory and other proprietary rights in respect of all intellectual or industrial property including all trademarks, patents, copyright, confidential information and all other intellectual property as defined by Article 2 of the Convention Establishing the World Intellectual Property Organization of July 1967 and the right to register them.
Loss - Damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and includes Consequential Loss.
Personal Information - Information or an opinion (including information or an opinion forming part of a database), whether true or not and whether included in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Purchase - Your physical or electronic purchase order submitted to us when you intend to purchase a SaaS License.
SaaS License - A limited, revocable, non-exclusive, non-transferable (except as permitted in this Agreement), world-wide license for you and your Authorized Users to use our Service in accordance with this Agreement.
SaaS License Commencement Date - The date on which we give you and your Authorized Users access to log on and use the Service.
Scheduled Maintenance Windows - A period of time where the Service will be unavailable.
Service - The software as a service consisting of a system and application provided by us and any Updates or Enhancements to it, which is accessed by a web browser or application on an Authorized User’s Device, and includes web enabled Support, management and monitoring of the software and the capture and tracking of User Information uploaded from Devices.
Site - www.arcade.co and all subdomains including but not limited to Manage.ArcadeHub.co, App.ArcadeHub.co, PlayArcade.co, Blackboard.ArcadeHub.co, Live.ArcadeHub.co and Signup.Arcade.co.
Specifications - The specifications noted on the Site or in the Documentation about the Service. State means the State of Texas, United States.
Support - The support specified in Schedule 1 which we provide you in relation to the Service during the term of your SaaS License.
Tax - Any tax, levy, charge, impost, fee, deduction, value added tax or withholding tax that is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of any of the above.
Updates - Updates of the Service generally made available by us containing correction of reported bugs, defects or errors, or which constitute a change, amendment or modification to the Service but which do not materially affect existing functionality.
User Identification - The unique username and password issued or otherwise assigned by us to you and your Authorized Users for access to and use of the Service.
User Information - Any Personal Information, financial details and such other information of a person, company or other entity who provides such information or intends to use the Services.
You or your - The Client (i.e., the entity licensed to use the Service under this Agreement), and those Authorized Users who use the Service in accordance with this Agreement.
Your Content -Any content (including User Information and other data) you: - (a) run on our Service; - (b) cause to interface with our Service; or - (c) upload to our Service under your Account or otherwise transfer, process, use or store in connection with your Account.
We or us or our - Arcade Solutions, Inc.
The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply. - (a) A reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it. - (b) A reference to a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or notated. - (c) A reference to a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party. - (d) A reference to a person includes any type of entity, individual or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person. - (e) Headings are for convenience only, and do not affect interpretation. - (f) A singular word includes the plural, and vice versa. - (g) A word which suggests one gender includes the other genders. - (h) If a word is defined, another part of speech has a corresponding meaning. - (i) A reference to a party in this Agreement is a reference to you or us. - (j) If you are made up of more than one person then: - (i) your obligations apply to each of those persons jointly and severally; and - (ii) any other reference to you is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.
We do not guarantee that our Service will be continuous or fault free due to the nature of the Service. We will use our best efforts to provide reasonable notice to you of the date, start time and expected duration of Scheduled Maintenance Windows. Notwithstanding the above, we do not accept responsibility or liability in relation to any loss or damage arising out of any fault or delay whatsoever or howsoever caused, created, maintained, continued or resumed due to unavailability of the Service.
In addition to any obligations set out in this Agreement, you agree to: - (a) provide any information and reasonable assistance to us to enable the Service to be provided to you; - (b) provide any information and reasonable assistance to us to enable investigations into activities of an illegal nature, including potential incidences of fraud relating to the use of the Service; - (c) comply with all domestic and international laws, regulations, standards and industry codes applicable to you; - (d) use our Services for your own internal operations; and - (e) only use our Service as specified in this Agreement and/or the Documentation.
In addition to any obligations set out in this Agreement, you must not: - (a) directly or indirectly, sell, export, re-export, transfer, divert, or otherwise provide any of our Service (including products derived from or based on our Service) you receive from us under this Agreement to any other person, entity, or destination prohibited by your local laws; - (b) copy, distribute, install, reproduce or in any way provide our Service to a third party; - (c) modify, adapt, translate, duplicate, disassemble, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to our Service for any purpose; - (d) create any derivative works based on our Service; - (e) use our Service for any activity of an illegal or fraudulent nature, or to violate any law; - (f) transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted; - (g) disclose to any unauthorized person any Confidential Information or Personal Information obtained in your use of our Service; - (h) allow, permit or enable any unauthorized use of our Service; - (i) reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from your use of our Service that would infringe the Intellectual Property Rights of any person; and - (j) engage in conduct which, in our opinion, could be reasonably expected to adversely affect our reputation or result in a liability to us.
Your SaaS License will expire or terminate on the earlier of: - (a) Immediately on request, before the expiry of the Trial Period as outlined in Clause (3.3), otherwise - (b) 30 days after the date that you request to terminate the Service; or - (c) the date on which the Services are suspended, cancelled or terminated in accordance with this Agreement.
Termination of this Agreement for any reason does not invalidate, waive or in any other way affect the rights of a party, which have accrued prior to termination.
If your Account is cancelled or SaaS License is terminated under clause 5.1(b) you will not be permitted to use the Service and we will prevent your access to the Service and your Account; provided, however, we will provide you with access to your Account and the Service solely for you to retrieve Your Content in accordance with clauses 5.3(c) and 6.4.
At our discretion, you will be able to continue to upload Your Content to the Service; however, you will not be able to download or transfer Your Content or use all the functionality of the System:
You acknowledge that, in order for you to use our Service, you will need to use compatible Devices. We do not warrant that our Service will be compatible with all Devices.
You warrant that all Your Content which contains Personal Information has been collected and disclosed in accordance with relevant applicable law.
You retain sole and exclusive ownership of all right and title to Your Content and all Intellectual Property Rights in Your Content.
You give us a non-exclusive, world wide, royalty free and irrevocable license to copy, use and analyze Your Content for creating statistics and determining trends of such items as retention rates and user analyses which may then be used by us as we see fit, provided such output and analyses will not contain Personal Information.
"Confidential Information" means the terms of this Agreement and all confidential and proprietary information of us or you, including without limitation all business plans, product plans, financial information, software, designs, formulas, methods, know how, processes, materials provided by one party to the other in the course of us providing the Service to you under this Agreement, and technical, business and financial data of any nature whatsoever, provided that such information is either (i) marked or designated in writing as "confidential," "proprietary," or any other similar term or designation, or (ii) of a nature or provided under circumstances which a reasonable person would understand to be confidential. Confidential Information does not include information that is (i) rightfully in the receiving party's possession without obligation of confidentiality prior to receipt from the disclosing party; (ii) or becomes a matter of public knowledge or generally known in the industry through no fault of the receiving party; (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. Each party shall (x) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Agreement, and (ii) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period from the date hereof until three (3) years following the termination date of this Agreement, provided, however, that Confidential Information that constitutes, contains or reveals, in whole or in part, a disclosing party’s trade secrets, and identified as such by the disclosing party, shall not be disclosed by the receiving party at any time. Notwithstanding the foregoing, a receiving party may disclose Confidential Information pursuant to a valid order of a court or authorized government agency provided that the receiving party has given the disclosing party prompt notice, to the extent legally permissible, so that the disclosing party will have an opportunity to defend, limit or protect against such disclosure.
You acknowledge and agree that we own: - (a) all rights, title and interests in and to our Service; and - (b) all Intellectual Property created in connection with our Service or your use of our Service, excluding the Intellectual Property Rights in Your Content.
Fees are set out on in the Agreement or may be agreed between you and us from time to time.
Service Provider will bill & invoice Client on monthly basis.
We will store your payment details and transaction data securely in accordance with the Payment Card Industry Data Security Standard (PCI DSS). It is your responsibility to keep your payment details secure.
You acknowledge and agree that:
To the fullest extent permitted by law all conditions and warranties concerning the Service (whether as to quality, outcome, fitness, care, skill or otherwise) expressed or implied by statute, common law, equity, trade, custom or usage or otherwise are expressly excluded and in respect of those statutory warranties which can not be excluded for any products or services provided by us, our liability to you is limited to:
To the maximum extent permitted by law, you release us from, and indemnify and hold harmless, us, including our directors, employees and officers, from and against, any Loss or Claim (including reasonable legal costs and expenses) brought against, incurred or suffered by us or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified and arising directly or indirectly in connection with the provision of our Service by us including: - (a) where such loss or liability was caused by a breach of your obligations under this Agreement; or - (b) where such loss or liability was caused by any willful, unlawful or negligent act or omission by you.
We exclude liability for any and all Loss suffered or incurred by you, or any other person that uses our Service in connection with: - (a) our termination or discontinuation of the Service for any reason; - (b) failure for any reason to activate, reactivate or to deactivate our Service; - (c) any failure to provide all or part of any of our Service including as a result of any network failure, any network congestion or any network drop out, or any delay in providing our Service where that failure is not our fault; - (d) any delay, interruption or suspension of our Services; - (e) a breach by you of this Agreement; any incorrect information provided by you or any third party; - (f) access by you or any other person using your Service to any material available to the public that you find offensive, upsetting, defamatory or personally offensive; - (g) access by you or any other person using our Service to any sites that may be illegal; or - (h) any loss of Content, including your Content from the use of our Service.
To the maximum extent permissible under applicable law except with respect to a party s confidentiality or indemnity obligations or as a result of a party s gross negligence or willful misconduct neither party shall be liable for any consequential incidental punitive special exemplary or indirect damages even if such party was advised of the possibility of such damagesExcept as expressly set forth in this Agreement, we exclude liability for any and all Loss suffered or incurred by you, or any other person that uses our Service in connection with:
All amounts paid in or provided for or in connection with this Agreement are, unless otherwise specified, exclusive of Tax. If the supply of goods or services by one party () to another party (Recipient) under this Agreement is a taxable supply, then the amount due to the Supplier for that supply will be the sum of:
For the avoidance of doubt, each party is solely responsible for any Tax imposed on its net income, its real or personal property, or its aggregate gross receipts.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, that provision must be construed to the extent necessary to ensure that it is not illegal, invalid or unenforceable. If that clause cannot be so construed, then that provision shall be severed without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.
A provision of this Agreement which can and is intended to operate after its conclusion will remain in full force and effect.
A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right.
We may not store or transfer your Personal Information, Personal Information of Authorized Users, or any information we obtain from your use and/or purchase of our Service, to a location outside of the United States.
This Agreement is governed by and construed in accordance with all applicable laws in force in the State from time to time, and the parties submit to the non-exclusive jurisdiction of the state and federal courts located in Tarrant County in `the State.
We may vary this Agreement (including varying our Service charges and adding new types of charges) by providing you with no less than sixty (60) days’ prior written notice of such variations.
Each party may assign or novate its respective obligations or rights under this Agreement to a third party without prior notice to the other party, in the case of either (i) a merger, combination, consolidation, reorganization or sale of all or substantially all of such party’s assets or business, or (ii) an assignment or transfer to an entity controlling, controlled by or under common control with the assignor party. Except for the aforesaid permitted assignment or transfer, neither party may assign, sub-license, transfer, lease, rent, sell or share any of its obligations or rights under this Agreement.
This Agreement (including any addendum or amendment) is the entire agreement between you and us relating to the Service and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this Agreement.
Unless expressed to the contrary, to the extent of any inconsistency between these terms and the terms of the Agreement in relation to the Service, the Agreement terms will prevail.
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