This Customer Agreement (together with the specific terms selected by Customer, this “Agreement”) contains the terms and conditions applicable to use of the Services (as hereinafter defined) and constitutes a contract between ArkOwl LLC, a Minnesota limited liability company (“ArkOwl”), and you, the customer (“Customer”), to be effective the date assented to by Customer as hereafter provided (the “Effective Date”).
ArkOwl hereby agrees to provide a search interface for the purposes of searching email addresses to assist in the detection of potential fraud (the “Services”) to Customer on the terms and conditions set forth in this Agreement.
To gain access to and use the Services, Customer will be required to create an ArkOwl ID and password (“Log-In Information”). Customer may create Log-In Information for several employees, which will be linked to Customer’s subscription. Customer is responsible for all activity occurring under its Log-In Information, and Customer must keep its Log-In Information confidential and not share its Log-In Information with third parties. ArkOwl has no obligation or responsibility with regard to Customer’s use, distribution, disclosure, or management of Log-In Information. Notwithstanding the foregoing, ArkOwl may require Customer to change its Log-In Information if such Log-In Information is inconsistent with the terms of this Agreement or ArkOwl’s standard policies.
Customer acknowledges that its ability to access the Services may require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges) and that it is responsible for paying such fees. ArkOwl is not responsible for any equipment Customer may need to be able to access the Services.
Customer acknowledges that ArkOwl and its licensors own all right, title, and interest in: (a) the Services; (b) any ArkOwl software provided in connection with the Services; and (c) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by ArkOwl in connection with the Service (the “Marks”).
Use of the Services is subject to Customer’s payment of ArkOwl’s charges for the Services (the “Service Fees”). Unless this Agreement is terminated in accordance with Section 4, ArkOwl will collect the relevant Service Fee for Services in advance. Customer is responsible for paying all taxes and third party fees levied in connection with its use of the Services. Service Fees are subject to adjustment by ArkOwl.
Customer may sign up for a periodic Subscription as a means of payment of ArkOwl’s Service Fees. Unless this Agreement is terminated in accordance with Section 4, ArkOwl will collect the relevant Service Fee for subscribed Services in advance of the current billing period with a defined quota of Service usage covered by the Subscription. Charges for searches in excess of Customer’s subscription level quota during a billing period will be invoiced at the end of the billing period and paid by Customer within thirty (30) days of billing by ArkOwl. Service Subscription Fees are subject to adjustment by ArkOwl.
Customer agrees that in the event ArkOwl is unable to collect the Service Fees owed by Customer to ArkOwl for the Services, ArkOwl may take any other steps it deems necessary to collect such Service Fees from Customer and that Customer will be responsible for all costs and expenses incurred by ArkOwl in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Customer further agrees that ArkOwl may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
The term of this Agreement shall begin on the Effective Date and shall continue until terminated, as set forth below.
Either party may terminate this Agreement at any time by delivering 30 days prior written notice; provided, however, that this Agreement may be terminated immediately by the non-breaching party upon breach of this Agreement by the other party.
Upon termination of this Agreement, Customer must immediately cease using the Services, and Customer must immediately pay to ArkOwl any Service Fees that are due and owing to ArkOwl upon such termination. The following Sections of this Agreement shall survive termination of this Agreement: 2, 4, 7, 8, 9, and 10.
In connection with Customer’s access or use of the Services, Customer agrees not to:
5.1. introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information;
5.2. use the Services in any manner that could damage, disable, overburden, or impair any ArkOwl server, or the network(s) connected to any ArkOwl server or interfere with any other party’s use and enjoyment of the Services;
5.3. attempt to gain unauthorized access to service, materials, other accounts, computer systems or networks connected to any ArkOwl server or to the Services, through hacking, password mining, or any other means;
5.4. obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services;
5.5. host, on a subscription basis or otherwise, the Services, including any related application, (i) to permit a third party to use the Services to create, transmit, or protect any content, or (ii) to conduct conferences or online meeting services for a third party; or
5.6. sell, lease, or rent access to or use of the Services, or otherwise transfer any rights to use the Services under this Agreement (including without limitation, on a timeshare or service bureau basis).
Customer acknowledges that ArkOwl saves all search queries entered using the Services and ArkOwl may use such information in its efforts to enhance the Services and its efforts to combat fraud. ArkOwl may share Customer’s search query or fraud e-mail with a third party in an effort to combat fraud, but ArkOwl will not disclose Customer’s identity associated with a particular search query.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, ARKOWL, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, RESELLERS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ARKOWL DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT ARKOWL’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Notwithstanding the foregoing, ArkOwl shall indemnify Customer from and against all liabilities, costs, damages, claims and expenses (including reasonable legal expenses) that may be awarded or paid to any third party in respect of any claim or action that the Services infringe the intellectual property rights of such third party.
8.1. NEITHER ARKOWL NOR ITS SUPPLIERS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ARKOWL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2. ARKOWL’S TOTAL LIABILITY TO CUSTOMER FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES IN THE LAST SIX (6) MONTHS, IF ANY. CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. ARKOWL’S SUPPLIERS SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY REASON.
8.3. THE LIMITATIONS ON LIABILITY IN THIS SECTION 8 (LIMITATIONS OF LIABILITY) ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
The Services are controlled by ArkOwl from its offices within the state of Minnesota, United States of America. By accessing and using the Services, Customer and ArkOwl agree that all matters relating to this Agreement and Customer’s access to, or use of, the Services shall be governed by the statutes and laws of the State of Minnesota, without regard to the conflicts of laws principles thereof. Customer and ArkOwl also agree and hereby submit to the personal jurisdiction and venue of the state and Federal district courts in the state of Minnesota with respect to such matters.
10.1. Customer is solely responsible for familiarity and compliance with any laws that may prohibit Customer from participating in or using any part of the Services. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. ArkOwl’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ArkOwl in writing. Customer’s rights hereunder may not be assigned or transferred to any third party.
10.2. This Agreement, including the specific terms that have been selected by the Customer on previous screens, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, ArkOwl shall have the right to change, modify or amend (“Change”) this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Customers continued use of the Services after the effective date of such Change shall be deemed Customer’s acceptance of the revised Agreement.
Last Updated: November 16, 2012