End User License Agreement

This Agreement governs the Software. Our Terms of Service govern access to and use of the service, platform, and any hosted or online functionality made available by us (the "Service"), and are incorporated into this Agreement by reference. Where the Software is used to access the Service, both this Agreement and the Terms of Service apply.

If you and we have entered into a separate written agreement executed by authorized representatives of both parties that expressly addresses the subject matter of this Agreement, that agreement controls to the extent of any conflict. In all other cases, this Agreement controls with respect to the Software.

Subject to your continuous compliance with this Agreement and, where applicable, your payment of all amounts due, we grant you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Software, in object code form only, solely for your internal business purposes and solely in connection with your authorized use of the Service, during the term of this Agreement.

The Software is licensed, not sold. No title, ownership interest, or other right in or to the Software is transferred to you. All rights not expressly granted in this Agreement are reserved by us and our licensors. No license is granted by implication, estoppel, exhaustion, or otherwise.

You may permit your employees and contractors to use the Software on your behalf, provided that each such person is bound by obligations no less protective than this Agreement and that you remain fully responsible for their acts and omissions as if they were your own. Any breach by such a person is a breach by you.

Where the Software is made available subject to a specified number of licenses, users, installations, devices, instances, or other unit of measurement, your use must remain within that entitlement at all times. Use beyond your entitlement is unlicensed and constitutes a material breach of this Agreement.

Except and solely to the extent that a restriction below is expressly prohibited by applicable law that cannot be waived by agreement, you must not, and must not permit or enable any third party to:

• copy, reproduce, distribute, publish, transmit, sell, resell, rent, lease, lend, assign, sublicense, host, provide as a service, or otherwise make the Software available to any third party;
• modify, adapt, translate, or create derivative works of the Software;
• reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure, or organization of the Software;
• remove, obscure, alter, or fail to reproduce any proprietary notice, label, or mark on or in the Software;
• circumvent, disable, or interfere with any license, entitlement, authentication, security, metering, or protection mechanism in or associated with the Software;
• use the Software to develop, train, or improve any product or service that competes with the Software or the Service, or to benchmark, or publish any benchmark or comparative analysis of, the Software without our prior written consent;
• use the Software in any manner that exceeds your entitlement, or on behalf of any person or entity other than yourself and, where applicable, the organization you represent;
• use the Software in violation of any applicable law, regulation, or the rights of any third party; or
• use the Software in any high-risk activity or environment in which failure, delay, error, or inaccuracy could reasonably be expected to lead to death, personal injury, or severe physical, environmental, or property damage.

The Software, the Service, and all copies, components, and derivative works of them, together with all patents, copyrights, trade secrets, trademarks, trade dress, database rights, and all other intellectual property and proprietary rights in or relating to any of the foregoing, are and remain the exclusive property of Desktop Ark and its licensors. This Agreement conveys a limited license only, and is not a sale of any right.

You must not challenge, contest, or assist any third party in challenging or contesting our ownership of or rights in the Software, and you must not register or attempt to register any name, mark, or domain that is confusingly similar to any of our names or marks.

The Software may include or be distributed with components provided by third parties, including components made available under separate license terms. Those components are licensed to you under their own terms, which govern to the extent they conflict with this Agreement with respect to the component in question, and nothing in this Agreement limits any right you have under such terms. Where required, applicable notices and terms are made available with the Software or on request.

We make no representation or warranty regarding any third-party component, and we are not responsible or liable for it. Any warranty, support, indemnity, or other obligation with respect to a third-party component is provided by that third party, if at all.

We may, at our sole discretion and without obligation, make available updates, upgrades, corrections, or new versions of the Software, and the Software may check for, download, and install them automatically. You agree to receive such changes. Any update, upgrade, correction, or new version is Software and is subject to this Agreement unless it is accompanied by separate terms, in which case those terms govern it.

We may add, modify, deprecate, restrict, suspend, or discontinue the Software or any feature, capability, format, interface, or compatibility at any time, with or without notice, and without liability to you or any third party. We have no obligation to maintain, support, or make available any prior version, and continued use of an outdated version is at your own risk. We may condition continued access to the Service on your use of a current version.

The Software may transmit to us configuration, environment, usage, performance, diagnostic, error, security, and license-verification information. We may use such information to operate, secure, support, analyze, and improve the Software and the Service, to verify compliance with this Agreement, and for any other purpose permitted by applicable law. Our handling of information is described in our Privacy Policy.

You are responsible for ensuring that you have provided all notices and obtained all consents, permissions, and authorizations required for such transmission and processing under any law applicable to you.

You are solely responsible for: the environment in which the Software is installed and operated, and its suitability, configuration, capacity, maintenance, and security; your compliance with all laws, regulations, policies, and third-party terms applicable to your use; obtaining and maintaining all licenses, rights, consents, and permissions necessary for your use of the Software and for anything you access, process, or transmit through it; and maintaining independent backups of anything of value to you.

You are solely responsible for all activity conducted through the Software under your credentials, entitlements, or environment, whether or not authorized by you, and for safeguarding all credentials, keys, tokens, and other access material.

You must maintain accurate records sufficient to verify your compliance with this Agreement. On our reasonable request, you will promptly provide those records and reasonably cooperate with any verification we conduct. Any use in excess of your entitlement is subject to immediate payment at our then-current rates, without prejudice to any other right or remedy available to us.

If you provide us with any suggestion, idea, enhancement request, recommendation, comment, or other feedback relating to the Software or the Service, you grant us a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, and transferable license to use, reproduce, modify, distribute, and otherwise exploit that feedback for any purpose, without restriction, attribution, or compensation to you. Feedback is provided voluntarily and is not your confidential information.

Software identified as evaluation, trial, beta, preview, early access, pre-release, or otherwise not generally available is provided solely for evaluation, on an "as is" basis, may be incomplete, unstable, or discontinued at any time, is excluded from every commitment, warranty, indemnity, support, and service level of any kind, and may be subject to additional or different terms. Use of such Software is entirely at your own risk, and you must not use it in any production or business-critical capacity.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ALL RELATED MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.

We and our licensors expressly disclaim all warranties, conditions, representations, and terms of any kind, whether express, implied, statutory, or otherwise, including any implied warranty or condition of merchantability, satisfactory quality, fitness for a particular purpose, title, quiet enjoyment, accuracy, system integration, and non-infringement, and any warranty arising out of course of dealing, course of performance, usage, or trade.

Without limiting the foregoing, we do not warrant that the Software will meet your requirements, operate in any particular environment or in combination with any other item, be compatible with any past, present, or future version of anything, be available or operate without interruption, be secure, or be free of error, defect, vulnerability, or harmful component, or that any error, defect, or vulnerability will be corrected. No advice or information, whether oral or written, obtained from us or through the Software creates any warranty not expressly stated in this Agreement.

Some jurisdictions do not allow the exclusion of certain warranties or conditions, so some of the above exclusions may not apply to you. In such case, any warranty required by applicable law is limited in duration and scope to the minimum permitted by that law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DESKTOP ARK OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, USE, GOODWILL, BUSINESS OPPORTUNITY, OR ANTICIPATED SAVINGS, OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THE SOFTWARE OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

To the maximum extent permitted by applicable law, our total aggregate liability arising out of or related to the Software or this Agreement, for all claims in the aggregate, will not exceed the greater of (a) the total amount you actually paid to us for the Software during the one (1) month immediately preceding the first event giving rise to the claim, or (b) one hundred United States dollars (US$100).

The foregoing limitations apply even if any limited remedy fails of its essential purpose, and they reflect an agreed allocation of risk that forms an essential basis of the bargain between the parties; the Software would not be made available on these terms without them. Some jurisdictions do not allow certain limitations or exclusions of liability, so some of the above may not apply to you; in such case, our liability is limited to the smallest amount permitted by applicable law.

You agree to defend, indemnify, and hold harmless Desktop Ark and its affiliates, officers, directors, employees, agents, suppliers, and licensors from and against any and all claims, demands, actions, proceedings, liabilities, damages, losses, penalties, fines, and expenses, including reasonable legal fees and costs, arising out of or in any way connected with your installation or use of the Software, your breach or alleged breach of this Agreement, your violation of any law, or your violation or infringement of the rights of any third party.

We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which case you will cooperate fully with us. You must not settle any matter in a way that imposes any obligation or admission on us without our prior written consent.

This Agreement takes effect when you first download, install, copy, access, or use the Software and continues until terminated. You may terminate at any time by ceasing all use of the Software and removing and destroying all copies in your possession or control.

We may suspend or terminate this Agreement and the license granted under it immediately, with or without notice, if you breach any provision of this Agreement, if your right to use the Service ends for any reason, or otherwise at our discretion. Termination is without prejudice to any other right or remedy.

On termination, all licenses granted to you end immediately, and you must immediately cease all use of the Software and remove and destroy all copies in your possession or control and, on request, certify that you have done so. Any provision that by its nature should survive termination — including ownership, restrictions, disclaimers, limitations of liability, indemnities, verification, feedback, and general provisions — survives.

The Software may be subject to export control, sanctions, and import laws of one or more jurisdictions. You represent that you are not located in, organized under the laws of, or ordinarily resident in any embargoed or restricted jurisdiction, and that you are not identified on any restricted-party or sanctions list. You must not export, re-export, transfer, release, or make the Software available, directly or indirectly, in violation of any applicable trade control law, or for any prohibited end use.

The Software is a commercial item, consisting of commercial computer software and commercial computer software documentation, developed entirely at private expense. Any use, duplication, disclosure, modification, or reproduction by or on behalf of any government or public body is subject solely to the terms of this Agreement, and no rights beyond those granted here are conveyed. Any provision inconsistent with applicable procurement regulations is unenforceable only to the minimum extent required.

The Software, and any non-public information relating to it — including its design, structure, performance characteristics, interfaces, documentation, and any pricing or terms offered to you — constitute our confidential information. You must protect it using at least the degree of care you use for your own confidential information of like importance, and in no event less than a reasonable degree of care, must not disclose it to any third party, and must use it solely as permitted by this Agreement. This obligation does not apply to information that is or becomes publicly available through no act or omission of yours, or that you are legally compelled to disclose, provided that you give us prompt notice where lawful and reasonably cooperate in seeking protective treatment.

We may revise this Agreement at any time in our sole discretion. Revisions take effect on posting or as otherwise indicated, and may be presented to you for acceptance in connection with an update or a new version. Your continued download, installation, or use of the Software after a revision takes effect constitutes your acceptance of it. If you do not accept a revision, your sole remedy is to cease all use of the Software and remove and destroy all copies. It is your responsibility to review this Agreement periodically.

(a) Governing law. This Agreement and any dispute, claim, or controversy arising out of or relating to it or the Software, whether in contract, tort, or otherwise, are governed by the laws of the jurisdiction in which Desktop Ark maintains its principal place of business, without regard to its conflict-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply.

(b) Venue. The parties submit to the exclusive jurisdiction and venue of the courts located in that jurisdiction, and waive any objection based on inconvenient forum.

(c) No class actions. To the maximum extent permitted by applicable law, any claim must be brought in an individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding.

(d) Time limit. To the maximum extent permitted by applicable law, any claim arising out of or relating to this Agreement or the Software must be commenced within one (1) year after the claim arises, failing which it is permanently barred.

(e) Equitable relief. You acknowledge that a breach of the license restrictions, ownership, or confidentiality provisions would cause irreparable harm for which damages would be an inadequate remedy, and that we are entitled to seek injunctive and other equitable relief without the necessity of posting bond or proving actual damages.

(a) Entire agreement. This Agreement, together with the documents it incorporates and any separate written agreement executed by authorized representatives of both parties, constitutes the entire agreement between the parties regarding the Software and supersedes all prior or contemporaneous understandings, proposals, and representations, whether written or oral. Any additional or different term in any purchase order or other document issued by you is void.

(b) Severability. If any provision is held invalid or unenforceable, it will be modified to the minimum extent necessary to make it enforceable, or severed if it cannot be, and the remaining provisions remain in full force and effect.

(c) Waiver. No failure or delay in exercising any right operates as a waiver of it, and no single or partial exercise precludes any further exercise. A waiver is effective only if in writing and signed by the party granting it.

(d) Assignment. You may not assign or transfer this Agreement or any right or obligation under it, by operation of law or otherwise, without our prior written consent, and any attempted assignment without such consent is void. We may assign or transfer this Agreement freely. This Agreement binds and benefits the parties and their permitted successors and assigns.

(e) No third-party beneficiaries. Except for our affiliates, licensors, and suppliers, who are intended third-party beneficiaries of the disclaimers, limitations, and indemnities in this Agreement, there are no third-party beneficiaries.

(f) Relationship. The parties are independent contractors. Nothing in this Agreement creates any partnership, joint venture, agency, fiduciary, or employment relationship.

(g) Notices and electronic communications. You consent to receive communications from us electronically, and agree that electronic communications satisfy any legal requirement that a communication be in writing. Notices to you may be given through the Software, by email, or by posting.

(h) Headings and interpretation. Headings are for convenience only and do not affect interpretation. "Including" means "including without limitation." No rule of construction requiring interpretation against the drafter applies.

(i) Language. This Agreement is drafted in English. Any translation is provided for convenience only, and the English version governs in the event of any discrepancy.

Questions about this Agreement may be directed to us through the contact details provided on our website.