PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF CQC HOLDINGS, LLC D/B/A ARBJOURNAL (“ARBJOURNAL”) CAREFULLY BEFORE ACCESSING AND USING THE SUBSCRIPTION SERVICES (DEFINED BELOW). THESE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN ALL USE OF THE ARBJOURNAL SUBSCRIPTION SERVICES UNLESS YOU AND ARBJOURNAL HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT THAT EXPLICITLY SUPERSEDES THIS AGREEMENT.
ARBJOURNAL is willing to provide the Subscription Services to you only upon the condition that you accept all the terms contained in this Agreement. By accessing or using the Subscription Services, you have indicated that you understand this Agreement and accept all of its terms, conditions, and limitations. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not or cannot accept all the terms of this Agreement, then you shall not use the Subscription Services. These terms and conditions are subject to change by ArbJournal without prior written notice at any time, in ArbJournal’s sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Website.
| 1. |
DEFINITIONS |
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1.1 |
“Customer Data” means all non-public data and information input, submitted, or uploaded by you or Authorized Users (defined below) to ArbJournal and accepted by ArbJournal. |
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1.2 |
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trademark rights (whether registered or unregistered and including any goodwill acquired in such trademarks), trade secrets, trade names, moral rights, know-how, application program interface (API) software along with its other functionality and associated tools, and any other intellectual property rights recognized in any country or jurisdiction in the world. |
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1.3 |
“Subscription Services” means the service offerings provided by ArbJournal on the following website, www.ArbJournal.com (the “Website”). |
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1.4 |
“Usage Data” means all information and data logged by ArbJournal’s Data systems or ArbJournal personnel about how you and Authorized Users use the Subscription Services, including without limitation, commands executed by you when using the Subscription Services, features of the Subscription Services accessed by you, and information about the types and size of files comprising Customer Data. |
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| 2. |
RESPONSIBILITIES OF USER/CUSTOMER |
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2.1 |
Authorized Users. You may select the number of individuals (employees or independent contractors) specified in an applicable proposal or order to access and use the Subscription Services and you will obtain separate credentials, e.g., user IDs and passwords, when using the ArbJournal Website for such individuals (each, an “Authorized User”). You will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. You are responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity access or use the Subscription Services. Sharing user IDs and passwords by you or any Authorized User, including with another Authorized User, is a violation of this Agreement. |
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2.2 |
Subscription Services Restrictions. You shall not attempt to interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). You and your Authorized Users shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. You shall not: (a) copy, modify or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; (c) transfer any of your rights hereunder; (d) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services; (e) modify, translate or create derivative works based on the Subscription Services or related software; or (f) remove any proprietary notices or labels. |
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2.3 |
Acceptable Use Policies. You and your Authorized Users shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles. |
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2.4 |
Data Maintenance and Backup Procedures. ArbJournal does not backup any Customer Data, and as a result, you are responsible for any and all fees associated with maintaining, backing up, and restoring your Customer Data. ArbJournal disclaims all warranty on the durability or accessibility of Customer Data. |
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2.5 |
Indemnification. You agree to indemnify and hold harmless ArbJournal against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from: (i) a violation or an alleged violation of this Section 2; (ii) the combination, operation or use of the Subscription Services with equipment, devices, software or data (including without limitation Customer Data) not supplied by the ArbJournal; or (iii) your or an Authorized User’s use of the Subscription Services other than in accordance with this Agreement. |
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| 3. |
SUPPORT.
As part of the Subscription Services and pursuant with your continued compliance with this Agreement, ArbJournal will provide you and Authorized Users with support for the Subscription Services in accordance with ArbJournal’s standard practices. |
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| 4. |
OWNERSHIP.
As between ArbJournal and you, ArbJournal owns all worldwide right, title and interest in and to (a) the Subscription Services and Usage Data, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Subscription Services or support; and (c) any and all Intellectual Property Rights related to the foregoing. As between you and ArbJournal, you own all worldwide right, title and interest in and to all Customer Data and ArbJournal will not obtain any ownership rights or interests in such data. You hereby grant to ArbJournal a non-exclusive license to use the Customer Data as is necessary to provide the Subscription Services hereunder. |
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| 5. |
WARRANTY AND DISCLAIMER.
ArbJournal shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Services in a manner which minimizes errors and interruptions and shall perform any services in a professional manner. The Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ArbJournal or a third-party provider, or because of other causes beyond ArbJournal’s reasonable control, but ArbJournal shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. You assume sole responsibility and liability for use of the Subscription Services, including but not limited to any reliance on the results or conclusions drawn from such use. ArbJournal shall not be responsible or liable for any claims, losses, or damages caused by errors or omissions in any Customer Data provided to the ArbJournal by you or any results produced by the Subscription Services based upon Customer Data.
THE SUBSCRIPTION SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. ARBJOURNAL DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION SERVICES. ARBJOURNAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ARBJOURNAL OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, ARBJOURNAL DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE ERROR- FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
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| 6. |
PRIVACY.
ArbJournal’s Privacy Policy, found at https://arbjournal.com/privacyPolicy.aspx, governs the processing of all personal data collected from you in connection with your purchase of the Subscription Services through the Website. |
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| 7. |
YOUR OBLIGATIONS |
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7.1 |
Enforcement. You will ensure that Authorized Users comply with the terms and conditions of this Agreement. You will promptly notify ArbJournal of any suspected or alleged breach of this Agreement and will cooperate with ArbJournal with respect to: (i) any investigation by ArbJournal of any suspected or alleged breach of this Agreement; or (ii) any action by ArbJournal to enforce the terms and conditions of this Agreement. ArbJournal may suspend or terminate any Authorized User’s access to the Subscription Services without prior notice or without cause. You shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User. |
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7.2 |
Customer Data Representations. You represent and warrant to ArbJournal that: (i) you have all rights, power and authority that are necessary for collection, use and processing of the Customer Data as contemplated by this Agreement and/or as required by the Subscription Services; and (ii) your use and provision of Customer Data to ArbJournal pursuant to this Agreement will not breach any agreement between you and any third party or violate any applicable local, state or federal laws, regulations, orders or rules. |
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7.3 |
Telecommunications and Internet Services. You acknowledge and agree that you and your Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. You are solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. ArbJournal shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. |
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| 8. |
TERM AND TERMINATION |
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8.1 |
Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term for the Subscription Services purchased and ends on the date of termination or expiration of the final Subscription Term. |
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8.2 |
Subscription Terms. You may purchase subscriptions to one or more Subscription Services during the Term. The effective period of each subscription is a “Subscription Term” and, depending on the timing and agreed terms of the applicable order, those subscriptions may or may not have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” which is either (1) the date ArbJournal enters your order into ArbJournal’s billing system; or (2) an alternate date mutually agreed by the Parties in writing.
(a) Initial Subscription Term. Your initial Subscription Term for Subscription Services (the “Initial Subscription Term”) is one (1) year, which begins on the Effective Date and ends on the first anniversary of the Effective Date, unless an order document specifies a different period.
(b) Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Subscription Service will automatically renew for an additional one-year period (a “Renewal Subscription Term”) unless (a) You provide written notice of non-renewal to ArbJournal before such expiration date or (b) ArbJournal provides written notice of non-renewal to you. You must submit notice of non-renewal or termination to .
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8.3 |
Termination. ArbJournal will have the right to terminate this Agreement at any time and for any reason or no reason. You may terminate this Agreement in accordance with the terms of the applicable order form. In the event an order form does not contain any such terms, you may terminate this Agreement upon thirty (30) days’ notice in the event of a material breach of this Agreement by ArbJournal, and such material breach remains uncured. |
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8.4 |
Effect of Termination. Upon the expiration or termination of this Agreement: (i) you and your Authorized Users’ right to access and use the Subscription Services will immediately terminate, and you and your Authorized Users will immediately cease all use of the Subscription Services; and (ii) each party will promptly destroy or return to the other party all Confidential Information of the other party in its possession or control. The rights and obligations of ArbJournal and you contained in Sections 2, 3, 4, 7, 8.3, 8.4, 9, 10, 11, and 12, will survive the expiration or termination of this Agreement. |
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| 9. |
CONFIDENTIAL INFORMATION |
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9.1 |
Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, the Subscription Services is ArbJournal’s Confidential Information. |
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9.2 |
Exclusions. The obligations and restrictions set forth in Section 9.1 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party. |
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9.3 |
Permitted Disclosures. The provisions of this Section 9 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required. |
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| 10. |
LIMITATION OF LIABILITY |
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10.1 |
Exclusion of Damages. IN NO EVENT WILL ARBJOURNAL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ARBJOURNAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. |
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10.2 |
Total Liability. ARBJOURNAL’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT AND THE USE OF THE SUBSCRIPTION SERVICES, FROM ANY AND ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE LESSER OF THE TOTAL FEES PAID BY YOU UNDER THE AGREEMENT OR ONE THOUSAND US DOLLARS ($1,000.00 USD). |
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| 11. |
FEES AND TAXES |
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11.1 |
Amounts Due. You shall pay all fees and amounts due as specified in each invoice within thirty (30) days of the date of such invoice. You may be invoiced based on your order and for subscription-based fees. Except as otherwise specified in these Terms: (i) invoices are payable in the currency specified on the invoice; and (ii) payment obligations are non-cancelable and fees paid are nonrefundable unless otherwise agreed to by ArbJournal. Unless otherwise specified in writing, ArbJournal will separately invoice you for any renewals, upgrades, overage fees, and additional Subscription Services purchased. |
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11.2 |
Annual Increases. Unless otherwise agreed in writing, following the Initial Subscription Term, Subscription Service fees are subject to evaluation and annual increases, which will become effective beginning upon the first day of each Renewal Subscription Term. You acknowledge that the expiration of any discount or incentive programs to which you were previously entitled do not constitute fee increases. |
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| 12. |
MISCELLANEOUS. |
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12.1 |
Relationship of the Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. |
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12.2 |
Other Technology or Services; Changes. You acknowledge and agree that you have not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality. |
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12.3 |
Governing Law; Dispute Resolution. The Agreement will be governed by laws of the Commonwealth of Virginia, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. Any controversies arising out of or relating to this Agreement or the interpretation, performance or breach thereof will be settled by binding arbitration in Richmond, Virginia. Any dispute between the Parties concerning the interpretation or enforcement of this Agreement shall be settled in a reasonable, fair and timely manner without outside intervention. Therefore, prior to beginning any arbitration or litigation proceeding to resolve any dispute, there must be one (1) meeting between the parties, or their representatives, in Richmond, Virginia at which a good faith attempt is made to resolve the dispute. Furthermore, each party will, if requested by another party, attend at least one (1) mediation session for the purpose of exploring, in good faith, mediation of the dispute. Judgment upon any award rendered by the arbitrator(s) may be entered and enforced in any court having jurisdiction. |
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12.4 |
Force Majeure. Neither party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A party seeking relief from performance under this section must (i) provide notice of such circumstances to the other party as soon as practicable; (ii) use commercially reasonable efforts to avoid or mitigate such circumstances; and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than thirty (30) days, the other party may, in its discretion, terminate this Agreement. Such termination will not result in any liability by either party, except that, if you terminate this Agreement for ArbJournal’s failure, ArbJournal shall refund you a pro rata amount of any prepaid service fees applicable to the unused portion of the Subscription Term of the terminated Subscription Services (excluding any activation or other one-time fees). |
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12.5 |
Notices. ArbJournal shall communicate announcements of general interest by email or by posting on the Website. ArbJournal shall provide you with legal notices by email, mail, or courier to the address provided by you. You shall immediately notify ArbJournal if your address for notice changes. Except as otherwise specified in the Agreement, all notices must be in writing, with account notices sent to . ArbJournal will not be responsible for non-delivery of any notice when it has been sent to the respective primary contact on file. |
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12.6 |
Successors and Assigns. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without ArbJournal’s prior written consent, and any attempt by you to do so, without such consent, will be void. ArbJournal may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise. |
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12.7 |
Waiver. No waiver of any provision of the Agreement, nor consent by a party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. |
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12.8 |
Severability. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. |
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12.9 |
Entire Agreement. This Agreement (including all order forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and ArbJournal have executed a separate written agreement. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by ArbJournal and will be deemed null. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. ArbJournal may amend this Agreement and the changes shall take effect immediately. |
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12.10 |
ArbJournal Contact. If you have any questions regarding this Agreement, you may contact ArbJournal at . |