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.
2. Definitions and Interpretation
The following definitions apply in these terms:
means an account specific to you and your use of the Services accessed by User Identification.
means your employees, agents and independent contractors who you authorise to use the Services and the Documentation and for whom subscription to the Services have been ordered and who have been supplied User Identifications.
means a business day, which excludes weekends and public holidays in the State.
means 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.
means 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.
means all forms of information, including text, voice, pictures, animations, video, sound recordings, software, separately or combined, sent and received across a network.
means any hardware used to access our Service.
means the user manual and/or other written materials provided by Service Provider in relation to the Services and Software functionalities and use instructions.
mean new releases and updates of the Service generally made available by us containing new features or functions of performance.
means the unique user identity used to access the Arcade service.
means the fee payable in U.S. dollars (USD) for a Licence to access the Service on a per Authorised User basis as agreed between you and us from time to time.
means 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.
means all Intellectual Property Rights in or relating to the Service, including all programme 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
means 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 Organisation of July 1967 and the right to register them.
means a 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.
means 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.
means your physical or electronic purchase order submitted to us when you intend to purchase a SaaS Licence.
means a limited, revocable, non-exclusive, non-transferable (except as permitted in this Agreement), world-wide licence for you and your Authorised Users to use our Service in accordance with this Agreement.
SaaS Licence Commencement Date
means the date on which we give you and your Authorised Users access to log on and use the Service.
Scheduled Maintenance Windows
means a period of time where the Service will be unavailable.
means 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 Authorised 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.
means www.WorkplaceArcade.com 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.
means the specifications noted on the Site or in the Documentation about the Service.
State means the State of Texas, United States.
means the support specified in Schedule 1 which we provide you in relation to the Service during the term of your SaaS Licence.
means 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.
mean 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.
means the unique username and password issued or otherwise assigned by us to you and your Authorised Users for access to and use of the Service.
means 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.
means the Client (i.e., the entity licensed to use the Service under this Agreement), and those Authorised Users who use the Service in accordance with this Agreement.
means 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.
or our means 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 novated.
- (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.
3. The Licence
3.1. Commencement and term
(a) The term of a SaaS Licence will start on the SaaS Licence Commencement Date, which for the avoidance of doubt will be the date the Client agrees to the terms outlined in this Agreement through the Site, and continue until terminated or expiry under clause 5.
(b) The SaaS Licence grants you a non-transferable right to permit the Authorised Users to use the Services during the term.
(a) To access our Service, we will create an Account for you that will be associated with a unique ID or user access account.
(b) We will issue you with User Identifications for you and your Authorised Users to access and use our Service.
(c) You are solely responsible for your User Identifications and for ensuring the security and confidentiality of your User Identifications.
(d) Unless explicitly permitted by our Service, only one Account may be created per User Identification.
(e) You are responsible for providing, installing and maintaining at your own expense, including data charges associated with your use of Devices, all equipment and facilities necessary to enable you to use our Service.
(f) You are fully responsible for all liabilities incurred through the use of any User Identifications and that any transaction under a User Identification will be deemed to have been performed by you and we are not liable for any unauthorised access to your Account, excluding transactions or access that results from any negligent or willful act or omission on our part. Use of any User Identification contrary to the provisions of this Agreement, and resulting from your failure to adequately protect and secure such information, will be considered a breach of this Agreement by you.
3.3. Trail Period
(a) The Client will not be billed for the first 14-days of the Service from the Commencement Date.
(b) During the first 14-days of the Service, the client may terminate their use of the Service at anytime.
4. Your obligations
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.
4.2. Acknowledgements and Acceptance
(a) By purchasing and/or using our Service, you agree and accept to be bound by this Agreement.
(b) Where any terms of this Agreement are changed by us on notification to you, you will be deemed to have accepted the Agreement as amended if you continue to use the Service.
4.3. General obligations
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.
4.4. Prohibited Activity
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 unauthorised person any Confidential Information or Personal Information obtained in your use of our Service;
- (h) allow, permit or enable any unauthorised 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.
5. Termination, cancellation and suspension
5.1. Suspension, cancellation or termination
(a) We may immediately suspend your Account and use of our Service if:
(ii) you materially breach the terms of this Agreement;
(iii) we are required by law to do so, or are requested to do so by a law enforcement agency;
(iv) you provide false or incomplete information about you relating to your use of our Service;
(v) we reasonably believe your Account is being accessed by persons other than you or your Authorised Users;
(vi) you fail to pay an undisputed invoice (or any undisputed part of an invoice) in accordance with clause 11.2(c); or
(vii) there are serious technical problems which require corrective action.
(b) We may cancel your Account and immediately terminate this Agreement without liability to you if you are in material violation of Section 5.1(i), (iii), (iv), or (v), and you fail to cure or correct such breach or violation within 30 days of our delivery of written notice to you of such breach or violation.
5.2. Termination by expiry
Your SaaS Licence 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.
5.3. Discontinued Service; Access to Client Data
(a) We may at any time, with written notice to you, discontinue the Service.
(b) Where we discontinue the Service we will work with you to migrate Your Content, provided that prior to such discontinuation you had a current SaaS Licence and further provided that if you do not migrate Your Content within 12 months from us discontinuing the Service Your Content will be deleted.
6. Effect of Termination
6.1. Accrued Rights
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.
6.2. No Access
If your Account is cancelled or SaaS Licence 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.
6.3. Limited Access
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:
(a) for the duration of any period for which we suspend your use of our Service or your Account for an event under clause 5.1(a); or
(b) on expiry of the SaaS Licence under clause 5.2 until such time as you have brought your SaaS Licence up to date.
6.4. Accessing Your Content
(a) We will not have any obligation to continue to store Your Content on the Service after the date that is twelve months from the date your SaaS Licence is terminated or expires.
(b) If you do not Purchase a new SaaS Licence, we will on your written request give you such access as we deem necessary for the sole purpose of you retrieving and migrating Your Content which will be done at your own cost and we reserve the right to charge an administration or service fee for this process or for any assistance we may be asked to provide.
(c) If you do not retrieve or migrate Your Content before the end of twelve months from the termination or expiry of your SaaS Licence, Your Content may be destroyed by deletion from the System.
7. Updates, Enhancements and Support
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.
7.2. Updates and Enhancements
(a) While you have a current SaaS Licence we will provide Support for the Service which will be available within reasonable levels during the hours as set out in Schedule 1.
(b) We reserve the rights to cease providing Support if you are in material breach under this Agreement.
8. Privacy, Your Content and Personal Information
8.1. Compliance with Local Laws
You warrant that all Your Content which contains Personal Information has been collected and disclosed in accordance with relevant applicable law.
8.2. Our Privacy Obligations
8.3. Ownership of Your Content
You retain sole and exclusive ownership of all right and title to Your Content and all Intellectual Property Rights in Your Content.
8.4. Licence of Your Content
You give us a non-exclusive, world wide, royalty free and irrevocable licence to copy, use and analyse 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.
9.1. Confidential 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.
10. Intellectual Property Rights
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.
11. Fees and charges
Fees are set out on in the Agreement or may be agreed between you and us from time to time.
11.2. When fees are payable
(a) Fees are payable up front on a monthly basis, in advance of your use of the Service.
(b) You are not entitled to any refunds on termination or expiry of the SaaS Licence under clauses 5.1(b) or 5.2(c) or if our Service is suspended or unavailable for use for a substantial period and that suspension or unavailability is not caused by our default.
(c) You must make payment within 30 days after the date that an undisputed invoice is received by you unless otherwise agreed in writing.
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:
(a) we provide you with our Service “as is”;
(b) while our Services will be hosted on our Servers, we may require you to download software or applications to your Devices in order to access and use the Service, but this does not grant you any other rights other than those provided in this Agreement;
(c) our Service is not and will not be free from faults or interruption (which may include Server failure, any Server congestion or any drop out);
(d) quality of our Service may vary at times, which also depends on your Devices and third party networks; and
(e) our Service may not be available at all times.
12.2. Representations and Warranties
(a) Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement; and (d) it will comply with all applicable laws and regulations in its performance of this Agreement.
(b) We represent and warrant to you (i) that the Service and our website conforms in all material respects to the description thereof set forth in the Specifications and Documentation; (ii) that the Service and our website will not infringe any copyright, patent, trade secret or any other third-party Intellectual Property Right; (iii) ) the Service and our website shall be free of any Disabling Devices (as defined below) or other malware; and (iv) we have taken appropriate and industry standard precautions and implemented industry standard security, including state of the art virus scanning technologies, to prevent our Service and the website from being infected or contaminated by any Disabling Device that may compromise the privacy and/or security of any Device or computer system or network, or Your Content, or in any manner adversely affect your computer systems, servers, or networks, or those used by Authorised Users. For purposes of this Agreement, “Disabling Device” means any malware or other computer code (i) designed to disrupt, disable, harm or otherwise impede in any manner, the operation of any software program or code, or any computer system or network (commonly referred to as “malware”, “spyware”, “viruses”, or “worms”); (ii) that would disable or impair the operation thereof or any device, software, computer system or network in any way based on the elapsing of a period of time or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); (iii) that is designed to or could reasonably be used to permit us or any third party to access any computer system or network (referred to as “trojans”, “traps”, “access codes” or “trap door” devices); or (iv) that is designed to or could reasonably be used to permit us or any third party to track, monitor or otherwise report the operation and use of any hardware, software program or any computer system or network by you or your customers or contractors, in a manner other than in accordance with the specifications for the Service and website to be provided by us.
12.3. No Warranty
(a) We do not exercise any control over, authorise or make any warranty regarding:
(i) your right or ability to use, access or transmit any Content using our Service;
(ii) the accuracy, reliability or completeness of any Content which you may obtain, use, access or transmit using our Service, including data which may be cached as part of our Service; and
(iii) the consequences of you using, accessing or transmitting any Content, including Your Content, while using our Service.
(b) We do not warrant or guarantee that our Service, including any software or application to enable or use the Service you have downloaded on to your Device:
12.4. Statutory Warranties
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:
(a) re-supply of the Service; or
(b) the cost of having the Service supplied again, which you agree are your only remedies.
13. Indemnity and Liability
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 wilful, unlawful or negligent act or omission by you.
13.2. Infringement Indemnity
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.
13.3. Limitation of Liability and Exclusions of Liability
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 DAMAGES. Except 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:
(a) 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;
(b) a material breach by you of this Agreement;
(c) access by you or any other person using your Service to any material available to the public that you
(d) access by you or any other person using our Service to any sites that may be illegal; or
14.1. Service Tax
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:
(a) the amount that is payable under this Agreement by the Recipient for that supply (or, if no amount is payable, the value of that supply); and
(b) the amount of Tax payable in respect of that supply.
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.
15.2. Non-merger of provisions
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 Authorised 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-licence, transfer, lease, rent, sell or share any of its obligations or rights under this Agreement.
15.8. Entire 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.