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USER LICENSE AGREEMENT
This website/platform is owned and operated, and the software
applications, products, solutions and toolkits you can
access through this website/platform (collectively the “Arrka Platform”) are provided
by Arrka Infosec Private Limited, a company incorporated and existing in India with
registered office at 44/1, Namrata Apartment, Gulmohar
Path, Law College Road, Erandwane,
Pune – 411004, Maharashtra, INDIA, (“Arrka”).
This
End User License Agreement (“EULA”) lays down the terms and conditions
applicable to the access and use of the Arrka Platform by the customer (“Customer”
/ “you” / “your”) identified in the written agreement or ordering document/s signed
by, or provided to, you by Arrka or by Arrka’s authorised reseller/distributor in connection with your
purchase of a license to use the Arrka Platform (“Ordering Document”). If you
tick the box at the end of this page and agree to this EULA, you are indicating
that you have read, understood, and agree to this EULA as a
whole. This EULA will then constitute a legal and binding agreement
between the Customer and Arrka Infosec Private Limited (“Arrka” / “our” /
“us”). Therefore, if you do not agree to be bound by all of
the terms of this EULA, do not access or use the Arrka Platform, or any part
thereof.
If you are accepting this EULA on behalf of a company or
other legal entity, by accepting this EULA you are representing that you have
the authority to bind the said company/legal entity to this EULA. If you do not
have such authority, you must not accept this EULA on behalf of a company or
other legal entity. The Customer is responsible to ensure that any person
designated by it as an individual user to access or use the Arrka Platform (each
an “Authorized User”) complies with this EULA and the Customer will be
responsible and liable for any acts or omissions by its Authorised
Users which are in breach of this EULA. All references to the “Customer” /
“you” / “your” in this EULA also includes all your Authorised Users.
1.
Registration.
1.1.
To
access and use the Arrka Platform (including for trial purposes), you must
complete the registration process in vogue at the time of your registration by
providing current, complete and accurate information
as required by Arrka. You should update this information and keep it current, complete and accurate at all times for the term of your Subscription to the Arrka Platform as mentioned in
your Ordering Document. All such information shall be processed
and maintained in accordance with this EULA and the Arrka Privacy Policy.
1.2.
Once
a Customer’s registration is successfully completed
and your order for the Subscription
to the Arrka Platform is accepted, Customer may use the Arrka Platform in accordance with this EULA. Access to, and use of, certain areas
of the Arrka Platform is limited to Authorized Users only. You agree not to
share your log in credentials, account information, or your Subscription to the Arrka Platform with any other person. You
are responsible for maintaining the confidentiality of your account information
and log in credentials, and for all activities that result from your access to
the Arrka Platform using your log in credentials or accounts. If you become
aware of any unauthorized use of your user name/s or log
in credentials, you must immediately notify us by writing to ryi@arrka.com with the title “Security/Privacy issue” and we will disable the user name and log
in credentials that has been compromised and issue new ones to you.
2. Trial
License.
2.1.
If
you are permitted to use the Arrka Platform or any part thereof on a trial
basis, the trial shall terminate (i) at the end of
the period as stated in the communication from Arrka accepting your request for
the trial, or (ii) if no such date is specified, 30 calendar days from the date of your initial access to the trial
(“Trial Period”). During the Trial Period, you shall be a ‘trial user’ and not
a ‘Customer’ and may not be able to access all the features or functionalities of
the Arrka Platform. During the Trial Period, you may use the Arrka Platform solely
for the purposes of your internal evaluation of the capabilities of the Arrka
Platform. Following expiration of the Trial Period, your right to access or use
the Arrka Platform will automatically cease and all your data on the Arrka Platform
will be deleted at the end of your Trial Period unless you purchase a Subscription to the Arrka Platform from us or from one of our authorised reseller’s/distributor’s. Arrka reserves the right to modify or discontinue any
trial license at any time.
3.
License&
Restrictions.
3.1.
Subject
to this EULA, including the receipt of all applicable fees by Arrka, Arrka
hereby grants to Customer a non-exclusive, non-transferable, limited, worldwide
right and license to access and use the Arrka Platform (including downloadable software components (if any)) during the
term of your Subscription to the Arrka Platform as specified in your Ordering
Document/s (“Subscription Period”) solely for your internal business operations.
3.2. You may permit third party advisors
or contractors performing services on your behalf to access and use your Subscription to the Arrka Platform in accordance with this
EULA, subject to such use being solely for the Customer. Customer shall be
responsible for compliance of this EULA by such third parties.
3.3.
3.4.
Without limiting the
generality of the above, except as expressly permitted in this EULA, by
applicable law, or otherwise expressly permitted in writing, signed by Arrka’s authorised representative,
you shall not, or permit anyone to, do any of the following with respect to the
Arrka Platform, the Arrka Materials or any part
thereof:
3.4.1.unauthorizedly make the Arrka Platform or any
part thereof available in any manner to any third party;
3.4.2.use the Arrka Platform or any part thereof,
for providing services to any third party;
3.4.3.copy, reproduce, issue copies, perform or
communicate to the public, distribute, sell, lease or give on commercial
rental, modify, translate or adapt the Arrka Platform or any part thereof;
3.4.4.use the Arrka Platform or any part thereof in
violation of any applicable law, rules or regulations (including export/import
control laws or sanctions) or the rights of any third party;
3.4.5.cause harm, disrupt or interfere with anyone’s use of the Arrka
Platform or any part thereof;
3.4.6.violate any policy or attempt to circumvent, disable or defeat the
limitations or restrictions on use prescribed by Arrka;
3.4.7.reverse engineer, disassemble or decompile,
attempt to derive the source code or do anything to obtain underlying
information that is not visible to a user in connection with normal permitted
use of the Arrka Platform or any part thereof;
3.4.8.publish or disclose any analysis of the results of operation,
including benchmarking results to any third party, without our prior written
consent; or
3.4.9.remove, modify or make illegible the
labels, markers or designations regarding copyrights and other intellectual
property rights of Arrka in the Arrka Platform or any part thereof.
4. Open Source
Software
4.1.
The
Arrka Platform includes open source software
components (“Open Source Software”). The Open Source
Software is licensed under the terms of applicable published open source
software license agreements or copyright notices accompanying such software,
that may override parts of this EULA. Your right to use each Open
Source Software in accordance with the relevant software license
agreements or copyright notices is not restricted in any way whatsoever by this
EULA.
5. Your
Content & Responsibilities.
5.1.
All data, information, materials,
documents and records that Customer or any of the
Authorized User’s provides or inputs to/using the Arrka Platform and the
results or output derived from the use of the Arrka Platform (“Your Content”)
will, subject only to Arrka’s rights in the Arrka Materials,
remain Customer’s property and you are solely responsible for Your Content. You
understand and agree that the provision and use of Your Content is at your own
risk.
5.2.
We
and our affiliates and contractors will access, use, analyse
and otherwise process Your Content solely for the purpose of, and to the extent
necessary for providing and managing your Subscription to the Arrka Platform,
delivering the services you ordered under your Ordering Document, for analysing trends and general data points, and operating and
improving the Arrka Platform and our services (including creating new features, functionalities and services), and you hereby
permit us to do so. Except as above, we will not access, use
or process Your Content unless otherwise permitted by you or required by
applicable law or judicial order.
5.3.
You
are solely responsible to ensure you have appropriate authority under
applicable law, and / or for obtaining necessary permission from the owners and
the data subjects whose personal data or information (if any) forms part of
Your Content, for such transfer to, and processing by Arrka and its affiliates
or contractors, including for international transfers.
5.4.
You
should not submit any Content (including any individual’s personal data or
information) to or through the Arrka Platform:
5.5.
if you do not have all
necessary rights, permissions and consents (including
government licenses as may be required by applicable law for the export or re-export
of data) to use, provide, store, and otherwise process Your Content or any part
thereof on or using the Arrka Platform
5.5.1.if you do not have the necessary rights, permissions and consents
to permit use of Your Content by Arrka and its contractors in accordance with
this EULA;
5.5.2.that violates any applicable law or regulation; or
5.5.3.that infringes or violates the rights of any third party.
If you receive any claims,
infringement notices or take down requests related to any part of Your Content,
you must promptly notify Arrka and stop using the related Content with the Arrka
Platform. If Arrka receives any claim / notice or has any reason to suspect
that any of Your Content violates this EULA, any applicable law
or the rights of any third party, Arrka will notify and consult with you on the
next steps and reserves the right refuse to process the same. You are solely
responsible and liable for Your Content.
5.6.
Before using the Arrka
Platform, you must ensure that such use is in compliance with
all laws, rules and regulations applicable to you. Your right to access the Arrka
Platform will be deemed automatically revoked to the extent such use is prohibited
or our provision thereof conflicts with any applicable law. You are responsible
for making these determinations before using the Arrka Platform.
5.7.
Arrka
maintains commercially reasonable technical and organizational measures to
secure its systems from unauthorized access. We shall not be responsible for any loss,
destruction, alteration, unauthorized disclosure or
corruption of Your Content caused by any third party.
5.8.
You
are obliged to ensure the authenticity, accuracy and completeness of Your
Content that you or your Authorised Users share using
the Arrka Platform and recognize and acknowledge that the results or output
derived from the use of the Arrka Platform is directly impacted by the same.
5.9.
You are responsible for
assessing the suitability of the Arrka Platform for your intended purposes and
for choosing the correct options / settings for your purposes.
5.10.
You are solely
responsible to ensure that your Authorised Users
access and use the Arrka Platform / the Services only on or using authorizes
devices.
5.11.
You hereby irrevocably
agree to indemnify, defend and hold Arrka, its
affiliates, directors, officers, employees, contractors and agents harmless
from and against any and all losses, costs, damages, liabilities and expenses
(including reasonable attorneys’ fees) resulting from, arising out of or
related to Your Content and your use of the Arrka Platform in breach of this
EULA. This obligation will survive the termination of this EULA.
6. Pricing
and Payment.
6.1.
The
prices and payment terms shall be as specified in the Ordering Document.
6.2.
Your
Subscription to the Arrka Platform is non-cancellable, and fees are
non-refundable unless otherwise agreed in your Ordering Document.
6.3.
Notwithstanding
anything provided in your Ordering Document, Arrka may suspend your access and
or use of the Arrka Platform, if Arrka does not receive payments due to it for
your Subscription to the Arrka Platform and such breach is not cured within 30 days of notice calling upon
the Customer to remedy such breach
7. Support
& Subscription Services.
7.1.
Arrka
will provide Customer with support as described in the Service Level Agreement
(SLA) or such other terms with respect to such support as agreed between the
parties. Arrka will make reasonable commercial efforts to correct, or devise
workarounds for any reported and reproducible failure of the Arrka Platform to
perform substantially in accordance with its published documentation, and to
provide such corrections or workarounds at the earliest.
7.2.
Support will be provided
remotely by electronic communication.
7.3.
Support is provided to Customer
solely for Customer’s internal use.
7.4.
Arrka will not be
responsible for delays caused by events or circumstances beyond its reasonable
control.
7.5.
We may modify our
policies related to support services from time to time during the term of your Subscription
to the Arrka Platform without materially degrading or diminishing the level and
quality of support provided.
8. Confidentiality.
8.1.
Except as may be
expressly permitted by this EULA, each party shall hold in confidence and shall
not use or disclose any non-public, confidential or trade secret materials or
information disclosed to it by the other party (“Confidential Information”).
Arrka will treat Your Content as your Confidential Information. All Arrka
Materials are the Confidential Information of Arrka.
8.2.
Each party shall treat
the other party's Confidential Information with at least the same degree of
care it uses to prevent unauthorized disclosure or use of its own Confidential
Information, but in no event less than reasonable care.
8.3.
Access to the Confidential
Information shall be limited to employees, agents or contractors of the
receiving party or its affiliates who have a legitimate “need to know” the
information for their performance of this EULA, and who have been advised of
the confidential nature thereof and who have agreed in writing, as a condition
of employment, engagement or otherwise, to protect the Confidential Information
with terms no less than are imposed by this EULA.
8.4.
Confidential Information
shall not include (i) any information which was already
publicly available when disclosed, or subsequently became publicly available
otherwise than through the fault of the party receiving such information; ii)
the information was already known to it under no obligation of confidentiality;
iii) the information was independently developed by the receiving party without
use of or reference to the disclosing party’s Confidential Information; or iv)
it obtained such information under no obligation of confidentiality from a
third party authorized to communicate the information.
8.5.
If the receiving party
is required by applicable law or court order to disclose the Confidential
Information of the other party, it shall notify the disclosing party at the
earliest unless otherwise prohibited by law from doing so and provide the party
whose Confidential Information is required to be disclosed (at that party’s
cost) with all reasonable cooperation in any actions that it may request or
take in the respect thereof.
9. Privacy
Policy.
9.1.
All
information relating to individuals, i.e. personal
data or information, that is either provided to us or that is collected by us
shall be so collected, processed, stored or further disclosed by us strictly in
compliance with the terms of our Privacy Policy available at https://arrka.com/privacy-policy
(“Privacy Policy”). The terms of our Privacy Policy form part and parcel of
this EULA and are deemed to be incorporated here by reference. Therefore,
please read our Privacy Policy carefully before
accepting this EULA.
10. Warranties&
Disclaimer.
10.1.
Except as may be
expressly warranted in this EULA or any Ordering Document signed by Arrka, the Arrka
Platform is provided ‘as is’ and without warranties of any kind. To the maximum
extent permitted by applicable law, Arrka expressly disclaims all warranties of
any kind, whether express, implied or statutory,
including but not limited implied warranties of merchantability, fitness for
any particular purpose and non-infringement. Arrka makes no warranty that the Arrka
Platform, or the results obtained from the use thereof, will meet your
requirements or that they will be uninterrupted, secure or error free. Arrka
also does not warrant that it will correct all defects or errors or prevent
third party disruptions or unauthorized third-party access.
11. Indemnity.
11.1.
If any claim, demand,
suit or proceeding (“Claim”) is made or brought against you by any third party
alleging that your use of the Arrka Platform in accordance with this EULA
infringes or misappropriates the intellectual property rights of the said third
party, Arrka will defend and indemnify you for any damages finally awarded
against you, and for reasonable attorney's fees incurred by you in connection
with any such Claim. Arrka will not have any indemnity obligation for Claims
based on items not provided by us; or the combination of the Arrka Platform with
items not provided by us; or any violation of this EULA; or violation of the
law or third-party rights caused by Your Content. This states our entire
liability and obligation, and your exclusive remedy, with respect to any Claim
that your use of the Arrka Platform infringes or misappropriates any third
party’s intellectual property rights.
11.2.
If any Claim is made or
brought against Arrka or any of its affiliates or their directors, officers,
employees or contractors by any third party alleging that Your Content
infringes or misappropriates the intellectual property rights of the said third
party, or violates any individual’s privacy
or rights in a person’s personal data or information, or that your use of the Arrka
Platform is in violation of applicable law, you hereby agree to defend and
indemnify Arrka, its affiliates and their directors, officers, employees and
contractors for any damages finally awarded against any of them, and for
reasonable attorney's fees incurred by any of them in connection with any such
Claim. You will not have any indemnity obligation for Claims arising out of our
unauthorized use of Your Content.
11.3.
Anyone claiming
indemnification by the other shall promptly give the other written notice of
the Claim; give the indemnifying party sole control of the defense and
settlement of the Claim (provided that the indemnifying party may not settle
any Claim unless the settlement unconditionally releases the other of all
liability) and provide the indemnifying party (at its cost) with reasonable
assistance, including efforts at mitigating the loss.
12. Limitation
of Liability.
12.1.
12.2.
Notwithstanding
anything contained in this EULA, Arrka’s, its
affiliates and contractors total aggregate liability for
all claims related to or arising out of this EULA will not exceed the actual
direct damages incurred by you, up to a maximum of the amounts received by
Arrka on your account in the 6 months immediately preceding the claim,
regardless of the basis of the claim. This limit of liability shall not apply
to indemnity obligations in Clause 11 above or to damages that cannot be
limited under applicable law.
12.3.
Except as may be
otherwise expressly provided in writing signed by Arrka, the Customer may not
recover compensation for that part of a loss that could have been avoided by
taking measures reasonable under the circumstances to avoid or reduce such
loss.
13. Term,
Termination & Suspension.
13.1.
This
EULA will be co-terminus with the Ordering Agreement and will terminate
automatically on the expiry or termination of your Ordering Document.
13.2.
Notwithstanding anything
contained in your Ordering Document, Arrka reserves the right to forthwith
suspend your use or access to the Arrka Platform if Arrka has reasonable cause
to suspect that you are in breach of this EULA and thereafter, terminate your
Subscription to the Arrka Platform by giving you written notice if Arrka’s investigation finds that you are in such breach.
13.3.
Upon
expiry/termination of this EULA, all rights and
licenses to access and/or use the Arrka Platform shall cease and you should
stop accessing or using the Arrka Platform. If any downloadable software
provided by Arrka had been installed in your systems, you should also
permanently delete all copies of the same. Your user names
and log in credentials will be deactivated, and you will no longer be able to
access or use the Arrka Platform. It is your responsibility to store or backup
Your Content elsewhere before the expiry or termination of your Subscription to
the Arrka Platform and or this this EULA. On expiry / termination of your
Subscription to the Arrka Platform, we will delete all of
Your Content that is then available with us.
14. Change
to Services.
14.1.
We reserve the right to
change or modify the Arrka Platform from time to time. If the change or
modification results in degradation in performance or a material reduction in
functionality of the Arrka Platform, unless we are able to
mutually agree on a revised pricing consequent to such change, your sole remedy
is to terminate your subscription to the affected module of the Arrka Platform.
15. Dispute
Resolution
15.1. The parties therefore agree
that they will, at all times,
act in good faith, and make all attempts to resolve all differences arising out
of or in connection with this Agreement by mutual discussion. However, in the
event of any disputes or differences amongst the parties connected with,
arising out of, under or in relation with this Agreement (a “Dispute”), the
parties shall attempt, for a period of 60 days from the receipt of a notice
from the other party of the existence of a Dispute, to settle it by mutual
discussions between the parties.
15.2.
If
the discussion between the parties fails to resolve a Dispute, the parties will
attempt to resolve the Dispute through conciliation or mediation by an
independent conciliator / mediator jointly appointed by the parties. The
parties will attempt to mediate the dispute and reach a settlement within 60
days of commencement of mediation. The place of mediation will be in Pune and
mediation will be conducted in English.
15.3.
In the event that the Dispute is still not
resolved within 30 (thirty) days from the commencement of conciliation or
mediation or such longer period as the parties may agree in writing, either
party may refer the dispute(s) to a sole Arbitrator to be appointed with the
mutual written consent of the parties. If the parties are unable to agree on
the sole arbitrator, the Dispute shall be referred to a panel of three
arbitrators: one each nominated by the parties and the other chosen by the 2
(two) arbitrators so nominated by the parties. The parties agree that until the
arbitration proceedings are complete, they shall not take the Dispute to a
court of law other than to obtain immediate injunctive relief. The seat and
venue of the arbitration shall be at Pune. The arbitration proceedings shall be
in English and shall be governed by the provisions of the Indian Arbitration
and Conciliation Act, 1996. The decision of the arbitrator(s) shall be final
and binding on both the parties.
15.4.
The parties agree to
keep the existence of any Dispute and the details thereof confidential.
16. Governing
Law and Jurisdiction
16.1.
The validity,
construction and performance of this EULA shall be governed and interpreted in
accordance with the laws of India without giving effect to the conflict of laws
provision thereof.
16.2.
The United Nations Convention on Contracts for
the International Sale of Goods does not apply to this EULA.
16.3.
Subject
to the Clause on arbitration above, you agree that any dispute between us
arising out of or in connection with this EULA (including any question
regarding its validity or termination) shall be submitted exclusively to the
competent courts located in Pune to the exclusion of any other court that may
otherwise have had such jurisdiction in the matter and you hereby waive any
objection to such proceedings on grounds of venue or on the grounds that the
proceedings have been brought in an inconvenient forum.
17. General.
17.1.
Entire Agreement: This EULA (which includes the Privacy Policy) contains the entire
agreement between us and supersedes all prior negotiations, correspondence, understandings and communications between us, whether
written or oral, concerning the subject matter hereof. Nothing in your Ordering
Document will amend, modify or supersede this EULA in
so far as it relates to the right to access and use the Arrka Platform.
17.2.
Relationship of the Parties: The parties are independent contractors. This
EULA do not create any joint venture, partnership, agency, franchise or
fiduciary or employment relationship between us and our respective personnel.
Each party is responsible for its personnel and contractors, and for their
direction, control and to make payments due to them in accordance with law.
17.3.
Amendment: We may update or change this EULA from time to time and any new
terms and conditions will apply when your subscription renews, unless otherwise
expressly notified in the communication of the changes. If you do not agree to
the new / modified EULA, then you must reject the changes, terminate your Subscription
to the Arrka Platform and cease using the Arrka Platform at the end of the
Subscription Period / date prior to which the changed EULA become effective.
17.4.
Severability: If any provision in this EULA is found or held to be invalid or
unenforceable, then it shall be construed severed from this EULA and the
remainder of this EULA shall remain in full force and effect. However, if the
severed provision is essential and material to the rights or benefits received
by either party, the parties shall use their best efforts to negotiate, in good
faith, to substitute a valid and enforceable provision.
17.5.
No Waiver: Any failure or delay to exercise any right or remedy under this
EULA shall not operate as a waiver of that right or remedy.
17.6.
Publicity: You hereby permit us to
use your name and or logo in our sales, marketing and advertisement or other
publications or materials, in any medium whatsoever (including on our website),
for the sole purpose of identifying you as a user of the Arrka Platform. You
may also use our name and or logo in your sales, marketing and advertisement or
other publications or materials, in any medium whatsoever (including on your
website), for the sole purpose of identifying Customer as a user of the Arrka
Platform. Each party will comply with any brand guidelines related to usage of
the other’s logos/trademarks as may be specified from time to time. All
goodwill arising from use of a party’s trademarks shall at
all times inure to the sole and absolute benefit of the owner thereof.
17.7.
Headings: Headings are for reference purposes only and in no way define,
limit, construe or describe the scope or extent of such clause.
17.8.
Assignment: Your right to access and use the Arrka Platform is personal to
you and you shall not assign or transfer in any manner any of your rights,
obligations or interest in this EULA or your Subscription to the Arrka Platform
to any third party without our prior written consent. We may freely assign our
rights and obligations under this EULA without your consent to any group
company or to any third party that acquires the whole or substantial part of Arrka’s business or assets by giving you written notice of
such assignment.
17.9.
Force Majeure: Neither party is responsible for failure to fulfill its non-monetary
obligations due to causes beyond its reasonable control.
17.10. Notices: All notices to us should
made via e-mail to accounts@arrka.com and all notices to you shall be made
via e-mail to the e-mail address you provide at the time of your registration.
Each of us may modify the email address for notice by giving prior written
intimation to the other.
17.11. Additional Terms: Some of the modules or features
of the Arrka Platform may have additional terms and conditions that may be
applicable. In such event, you will have a chance to review and accept / reject
such additional terms as and when you seek to subscribe to / use such modules /
features. If you accept any such additional terms and conditions, such
additional terms and conditions will also form part of this EULA.