Master Subscription Agreement




The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Arkieva’s direct competitors are prohibited from accessing the Services, except with Arkieva’s prior written consent.

This Agreement was last updated on June 1, 2020. It is effective between Customer and Arkieva as of the date of Customer’s accepting this Agreement.

1. Definitions

  1. “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
  2. “Arkieva” means Supply Chain Consultants Inc. d/b/a Arkieva Inc., a corporation organized under the laws of the State of Delaware, USA and having its principal place of business at 5460 Fairmont Drive, Wilmington DE 19808 USA.
  3. “Agreement” means this Master Subscription Agreement, together with any exhibits, schedules or amendments thereto.
  4. “Affiliate” means entities where customer has more than 50% ownership at the time of execution of this Agreement.
  5. “Beta Services” means Arkieva services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
  6. “Content” means information obtained by Arkieva from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
  7. “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Arkieva Applications.
  8. “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Arkieva, including associated Arkieva offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Arkieva Applications.
  9. “Free Services” means Services that Arkieva makes available to Customer free of charge. Free Services do not include Services offered as a free trial and Purchased Services.
  10. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Arkieva or any of their Affiliates, including any addenda and supplements thereto. By placing an order using an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to the agreement.
  11. “DPA” means the data processing addendum at
  12. “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
  13. “Documentation” means the Software documentation (including on-line documentation) as prepared by Arkieva for the Software as delivered to Arkieva’s customers from time to time, whether online, or in another format.
  14. “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Arkieva, including associated Arkieva offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Arkieva Applications.
  15. “Designated Hardware” means the hardware equipment specified in the applicable Product Schedule.
  16. “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Arkieva without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Arkieva at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
  17. “Reseller” means an approved third party that has been trained and approved by Arkieva in the methodology of selling and implementing the Arkieva Solution set.
  18. “Business Day”: Means Monday until Friday, from 9 AM to 5 PM US East Coast time, excluding weekends and USA public holidays.
  19. “Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term as specified in the Order Form. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
  20. “Term” means the duration or term of this Agreement, as provided in section 8 below.

2. Arkieva Responsibilities

  1. Provision of Purchased Services: Arkieva will:
    1. Make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation,
    2. Provide applicable Arkieva standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased,
    3. Use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for:
      1. Planned downtime (of which Arkieva shall give advance electronic notice), and
      2. Any unavailability caused by circumstances beyond Arkieva’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Arkieva employees), Internet service provider failure or delay, Non-Arkieva Application, or denial of service attack.
    4. Provide the Services in accordance with laws and government regulations applicable to Arkieva’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable OrderForm.
  2. Protection of Customer Data. Arkieva will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Except with respect to a free trial, the terms of the DPA are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Arkieva will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Arkieva will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
  3. Arkieva Personnel. Arkieva will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Arkieva’s obligations under this Agreement, except as otherwise specified in this Agreement.
  4. Free Trial. If Customer registers on Arkieva’s or an Affiliate’s website for a free trial, Arkieva will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of
    1. The end of the free trial period for which Customer registered to use the applicable Service(s), or
    2. The start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or
    3. Termination by Arkieva in its sole discretion. Additional trial terms and conditions may appear on the trial registration web
    4. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
  5. Any data customer enters into the services, and any customizations made to the services by or for the customer, during customer’s free trial will be permanently lost at the end of the trial unless customer purchases a subscription to the same services as those covered by the trial or upgraded services.
  6. Customer will be responsible for exporting any data before the end of the trial if they do not intend to buy services same as or higher than the trial version.
  7. The free trial services are provided “as-is” without any warranty and Arkieva shall have no indemnification obligations nor liability of any type with respect to the services for the free trial period unless such exclusion of liability is not enforceable under applicable law in which case Arkieva’s liability with respect to the services provided during the free trial shall not exceed $100.

3. Customer Responsibilities

    1. Customer will
      1. Be responsible for Users’ compliance with this Agreement, Documentation and Order Forms,
      2. Be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Arkieva Applications with which Customer uses Services or Content,
      3. Use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Arkieva promptly of any such unauthorized access or use,
      4. Use Services and Content only in accordance with this Agreement and Documentation, Order Forms and applicable laws and government regulations, and
    2. Any use of the Services in breach of the foregoing by Customer or Users that in Arkieva’s judgment threatens the security, integrity or availability of Arkieva’s services, may result in immediate suspension of the Services by the Arkieva. However, in such a scenario, Arkieva will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

4. Use of Services and Content

    1. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Arkieva regarding future functionality or features.
    2. Usage limits are applicable as specified in the order form.
    3. Customer will not:
      1. make any Service or Content available to anyone other than Customer or Users or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation.
      2. Sell, resell, license, sublicense, distribute, make available, rent, or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering.
      3. Use a Service or Non-Arkieva Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
      4. Use a Service or Non-Arkieva Application to store or transmit Malicious Code.
      5. Interfere with or disrupt the integrity or performance of any Service or third-party data contained therein
      6. Attempt to gain unauthorized access to any Service or Content or its related systems or networks
      7. Permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Arkieva intellectual property except as permitted under this Agreement, an Order Form, or the Documentation,
      8. Modify, copy, or create derivative works based on a Service or any part, feature, function, or user interface thereof.
      9. Copy Content except as permitted herein or in an Order Form or the Documentation
      10. Frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation
      11. Except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to
        1. Build a competitive product or service,
        2. build a product or service using similar ideas, features, functions, or graphics of the Service,
        3. copy any ideas, features, functions, or graphics of the Service, or
        4. determine whether the Services are within the scope of any patent.
    4. If Customer receives notice that Content or a Non-Arkieva Application must be removed, modified, and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Arkieva’s judgment continued violation is likely to reoccur, Arkieva may disable the applicable Content, and/or Service.

5. Ownership and Intellectual Property Rights

    1. All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Products, existing now or in the future, in any territory worldwide, with regard to Software and any future releases, amendments or derivative works thereof shall remain the exclusive property of Arkieva or its licensors, whether or not specifically recognized or perfected under local applicable law.  Customer will not take any action that jeopardizes Arkieva’s or its licensor’s proprietary rights.  Arkieva or its licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Products, including any improvement or development thereof.
    2. Customer will not otherwise copy, translate, modify, adapt, decompile, disassemble, reverse engineer the object code version of the Products or make any unauthorized or unintended use of the software.
    3. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement, and the Documentation.

6. Input of Data and Data Processing

    1. Customer is exclusively responsible for any input data that Customer uses in interaction with the Software.
    2. Customer may not use any data in interaction with the Software if such use could infringe upon any third party right under any applicable law, including intellectual property rights and data protection/privacy rights.
    3. Customer must ensure that any of Customer’s data used in interaction with the Software does not contain any malicious code or malware and that all reasonable measures to prevent such contamination, including the use of appropriate malware protection, have been taken.
    4. Customer data will reside in the Arkieva cloud.
    5. Performance of this Agreement or Customer’s use of the Software will not entitle Arkieva to any intellectual property rights on Customer’s data used in interaction with the Software. Customer however grants to Arkieva the unconditional right to exercise Big Data Analysis on any data that Customer has provided to Arkieva through data input into the Software or otherwise. Big Data Analysis meaning the use of sets of data, characterized by a high volume, velocity, and variety, for analytic purposes, extracting values from such data by using specific technology or analytical methods that serves predictive analytics purposes. Arkieva may use the output of any such Big Data Analysis, excluding the use of any individual personal identifiable information, both during the Term of this Agreement and thereafter at its discretion.
    6. The terms and conditions applying to Arkieva’s processing of Customer’s data are included in the Information Security Agreement between Arkieva and Customer.

7. Payment

    1. Subscription fees shall be due and payable under the terms of this section 5 and shall not be dependent or contingent in any way upon the performance or completion of any separate, agreed upon additional services as referenced in section 2.8 above.
    2. Customer’s rights under this Agreement are conditional to the timely and complete payment of the applicable license fees.
    3. During the Term, subscription fees are invoiced monthly. Subscription fee invoices are due and payable within 30 calendar days following communication of the invoice, which may take place via e-mail. Any arrears in payment will cause Customer to be indebted, by operation of law and without and prior notice being due, to pay a late payment interest of 10% per year (or part of year) on any such arrears as well as a fixed compensation equal to 10% of such arrears for administrative and credit surveillance costs.
    4. Subscription rights may be either suspended or terminated, effective immediately upon Arkieva’s notification thereof, if the invoice sent in consideration of the Subscription grant has not been fully paid within five (5) days after a registered payment reminder was sent.
    5. Subscription fees do not include any services.

8. Warranties and Remedies

    1. Limited Warranty. Arkieva warrants that it has the right to enter into this Agreement and grant the license(s) hereunder. Arkieva also warrants that the Software will perform substantially as described in the accompanying Documentation. Customer acknowledges that the Products may not satisfy all of Customer’s requirements and the use of the Products may not be uninterrupted or error-free.
    2. Licensor only provides the warranties explicitly made in this agreement. All other warranties, representations, and conditions, whether implied, express or statutory, are disclaimed. Licensor does not warrant, promise, or suggest to licensee that any specific results, businesswise or other, will be obtained or facilitated through the use of the software or any ancillary services.
    3. Remedies. In case of breach of warranty, Arkieva or its representative will correct or replace any defective Software, or if not practicable, Arkieva will terminate the applicable Product Schedule and refund to Customer the License Fee actually paid to Arkieva for the defective Software less depreciation based on a five (5) year straight-line depreciation schedule. Customer acknowledges that this Paragraph sets forth Customer’s exclusive remedy, and Arkieva’s exclusive liability, for any breach of warranty or other duty related to the quality of the Products.
    4. Disclaimer. Except as expressly provided in this Agreement or required by applicable law, all warranties, conditions, representations, indemnities and guarantees with respect to the products, whether express or implied, arising by law, custom, prior oral or written statements by Arkieva, its licensors or representatives or otherwise (including, but not limited to any warranty of merchantability, satisfaction and fitness for a particular purpose) are hereby overridden, excluded and disclaimed.

9. Limitation of Liability

Under no circumstances will Arkieva or its representatives be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, based on Customer’s claims or those of its customers (including, but not limited to, claims for loss of data, goodwill, use of money or use of the Products, interruption in use or availability of data, stoppage of other work or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, in no event will the aggregate liability which developer or its licensors or representatives may incur in any action or proceeding exceed the license fees actually paid by Customer for the specific Product that directly caused the damage.  This section will not apply when and to the extent that applicable law specifically requires liability, despite the foregoing exclusion and limitation.

10. Availability, Support and Maintenance

    1. Licensor undertakes to deliver all reasonable efforts to provide a 95% availability of the Software and its functionality during Business Days.
    2. If availability of the Software would be lower than provided in section 9A, Licensee shall not be entitled to any compensation or refund but shall have the option to terminate this Agreement in accordance with section 8 below.

11. Indemnity

    1. Indemnity. If an action is brought against Customer claiming that a Product infringes a patent, trade secret or copyright, Arkieva will defend Customer at Arkieva’s expense, and subject to this Section and Section 8, pay the damages and costs finally awarded against Customer in the infringement action, but only if:
      1. Customer notifies Arkieva promptly upon learning that the claim might be asserted,
      2. Arkieva has sole control over the defense of the claim and any negotiation for its settlement or compromise, and
      3. Customer takes no action that is contrary to Arkieva’s interest.
    2. Alternative Remedy. If a claim described in Section 7(A) may be or has been asserted, Customer will permit Arkieva, at Arkieva’s option and expense, to
      1. procure the right to continue using the Product,
      2. replace or modify the Product to eliminate the infringement while providing functionally equivalent performance, or
      3. accept the return of the Product and refund to Customer the License Fee actually paid to Arkieva for such Product less depreciation based on a five (5) year straight-line depreciation schedule.
    3. Limitation. Arkieva shall have no indemnity obligation to Customer under this Section if the patent, copyright, or trade secret infringement claim results from:
      1. a correction or modification of the Product not provided by Arkieva,
      2. the failure to promptly install an Update if installation of such Update would have avoided the infringement, or
      3. the combination of the Product with other non-Arkieva software.

12. Confidentiality

It is mutually acknowledged that the Software and associated Documentation contain Confidential Information of Arkieva and Arkieva may be provided Confidential Information of Customer in the course of this Agreement.
Accordingly, the parties agree to the following confidentiality obligations:

  1. Confidentiality and Disclosure.  Both parties shall at all time exercise reasonable care in maintaining complete confidentiality of the other party’s Confidential Information.  For purposes of this Agreement this degree of care shall mean a standard not less than the standard of care each party exercises in protecting its own confidential property, but in no event less than reasonable care designed to protect such Confidential Information.  Neither party will permit or authorize access to or disclosure of the other party’s Confidential Information to any person or entity other than the following:
    1. employees who require access for use of the Products or provision of Software Maintenance;
    2. employees or consultants who require access in case of a due diligence within the frame of an M&A, provided such consultants agree in writing to comply with the use and non-disclosure restrictions applicable under this Agreement.
    3. accountants for financial reporting and auditing purposes;
    4. governmental regulatory authorities to the extent required for compliance with applicable laws, and subject to such protective measures as may be available to preserve the confidentiality of such information following disclosure.
    5. Each party shall promptly notify the other in writing of the existence of any possession of unauthorized knowledge. In such a case, each party will take all steps which may be available to recover the Confidential Information and to prevent its subsequent unauthorized use or dissemination.
    6. With Customer’s prior written approval, Customer agrees that Arkieva may issue press releases identifying Customer as a Arkieva subscriber, such approval not to be unreasonably withheld. Notwithstanding the foregoing, Customer agrees that Arkieva may identify Customer as a subscriber in lists of customers used in presentations or marketing literature, or in response to questions and on Arkieva’s website.
  2. Limitation. Either party will have no confidentiality obligation with respect to any portion of the information that is not deemed confidential. At a minimum, Confidential Information shall not include information that:
    1. is or becomes known to the public without fault or breach of the recipient,
    2. the discloser regularly discloses to third parties without restriction on disclosure,
    3. the recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation.

13. Assignment

Customer shall not assign, delegate, sublicense, pledge, or otherwise transfer this Agreement or any of its rights or obligations hereunder without Arkieva’s prior written approval. A change in control of Customer (whether by means of a merger, consolidation or other reorganization or business combination, a sale of assets, or transfer of 50% of more of the voting securities or otherwise) shall not constitute an assignment hereunder.

14. U.S. Export Restrictions

Customer acknowledges that the Products and all related technical information, documents and materials, are subject to export controls under the U.S. Export Administration Regulations. Customer will:

  1. comply strictly with all legal requirements established under these controls,
  2. cooperate fully with Arkieva in any official or unofficial audit or inspection that relates to these controls, and
  3. not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to any country that is embargoed by Executive Order or identified as embargoed in the Product Schedule, unless Customer has obtained prior written authorization from Arkieva and the U.S. Commerce Department. Upon notice to Customer, Arkieva may modify the list of countries identified as embargoed in the Product Schedule to conform to changes in the U.S. Export Administration Regulations.

15. Force Majeure

Neither party hereto shall be deemed to be in default of any provision of this Agreement, for any failure in performance, resulting from acts or events beyond reasonable control of such party.  For purposes of this Agreement, such acts shall include but not be limited to, acts of God, civil or military authority, civil disturbance, war, strikes, labor disputes, shortages of labor, fires, accidents, other catastrophes, sabotage or other “force majeure” events beyond the party’s reasonable control.

16. Term

  1. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
  2. Both Arkieva and Customer may terminate this Agreement for convenience at the end of the first twelve (12) months, and monthly after by serving at least one (1) month prior written notice.
  3. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew at the current list price for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.
  4. Both Arkieva and Customer may terminate this Agreement for cause in case of a material breach of this Agreement that has not been remedied within ten (10) Business Days following receipt of registered notice urging such remedy. No such ten (10) Business Days cure period will apply for a breach that, given its nature, cannot be remedied. Termination for cause will be effective immediately upon receipt of written notice thereof.
  5. Both Parties may terminate this Agreement, effective immediately upon notification, if the other party is declared bankrupt or files for bankruptcy or if it is dissolved.
  6. Upon termination of this Agreement and irrespective of the grounds therefore:
    1. Customer must immediately terminate any use of the Software and Arkieva may terminate access rights without any further notice.
    2. Customer must return to Arkieva all documentation and manuals provided by it.
    3. Arkieva shall not be obliged to provide any further data, reports or output of the Software.
    4. Any amount due by Customer shall immediately become due, liquid, and payable.

17. Miscellaneous

  1. All notices or approvals required or permitted under this Agreement must be given in writing to the address provided above, or to such other address as Arkieva or Customer shall provide to receive notices under this Agreement. Any terms and conditions of any unilateral letter, memorandum, purchase order or other writing issued by Customer shall not be binding on Arkieva. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of Arkieva and Customer. This Agreement will bind Customer’s successors-in-interest.
  2. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, USA, exclusive of choice of law provisions.
  3. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless Arkieva in good faith determines the unenforceable provision to be essential, in which case Arkieva may terminate this Agreement effective immediately upon notice to Customer.
  4. Neither party to this Agreement shall have authority to take any action that shall be binding on the other party, except as may be expressly provided herein or authorized in writing.
  5. This Agreement constitutes the complete and entire statement of all conditions and representations of the Agreement between Arkieva and Customer with respect to its subject matter and supersedes all prior writings or understandings.