Terms of Service

Last updated: April 25, 2023

This Artie Terms of Service Agreement (“Agreement”) is entered into by and between Artie Technologies Inc. (“Artie” or “We”) and the entity or person placing an order for or accessing the Artie Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any terms referenced herein and any Artie Order Forms, online sign-up, or subscription flow that references this Agreement (the “Order Form”). If you are accessing or using the Artie Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

Please note that Artie may modify the terms and conditions of this Agreement in accordance with Section 12 (Modification of this Agreement).

THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND ARTIE AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND EACH GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION (SEE SECTION 19, BELOW).

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE ARTIE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE ARTIE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1. Artie Services Overview. The “Artie Services” is a technology platform that allows you to manage, monitor and automate your data integration pipelines through use of one or more Artie Connectors (SaaS or On-Prem) or OS Connectors along with related services. The “Artie Connectors” are those source connectors and destination connectors listed on our website located at artie.com (the “Site”), as well as any custom connectors we may agree to build for you, all of which are and shall be licensed to you pursuant to either the Elv2 License Addendum (attached if applicable), or the terms and conditions of this Agreement. In addition, you may be able to use third party connectors that are available from the open source community (“OS Connectors”), which may be subject to the terms of a third party open source license or other terms and conditions governing their use. You are always free to use the Artie OS Connectors on without use of additional Artie Services. Additional descriptions concerning the functionality of the Artie Services are available at the Site.

a. On-Prem Software License. With respect to any Order Form that includes on premise-installed data integration software product (“On-Prem Software”), subject to the terms of this Agreement, Artie grants to Customer a limited, personal, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable license during the subscription term of such Order Form to install, integrate and use for its own internal business purposes such On-Prem Software on the permitted type and number of computer hardware systems, storage platforms and computer frameworks.

2. General Eligibility Requirements.

a. The individual signing on behalf of the Customer represents and warrants that he/she has the authority to bind the Customer to the Agreement. By accepting this Agreement, Customer represents and warrants to us: (i) that the Customer, if an individual, is at least 18 years of age; (ii) that the Customer has not previously been suspended or removed from using any portion of the Artie Services; and (iii) that the Customer’s registration and use of Artie Services is, and will continue to be, in compliance with any and all applicable laws and regulations. Moreover, Customer may not access the Artie Services if Customer is located in a territory where U.S. businesses are prohibited from engaging in business (such as Cuba, Iran, North Korea, Sudan, Syria) or if the Customer has been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.

b. In order to access and use the Artie Services, Customer will need to register and create an account (“Account”). Customer agrees to provide accurate, current and complete information about the Account, which includes all individual sub-accounts (each an “Authorized User Account”) established for individuals who have been authorized by the Customer to access the Account and assigned a unique username-password combination to access and use the Artie Services on behalf of Customer (each an “Authorized User”). For more information on how Artie handles registration information, such as name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users (“Registration Information”), please visit the Artie Privacy Policy. Artie reserves the right to suspend or terminate the Account or any individual Authorized User Account at any time if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. In case Artie suspends or terminates the Account or any individual User Account, Artie shall provide Customer with notice of such suspension or termination and shall reinstate the Account or individual Authorized User Account once Customer demonstrates that the cause for suspension or termination has been cured. Customer is responsible for maintaining the confidentiality of Customer’s passwords and Customer’s Account, including all user names and passwords information assigned to its Authorized Users with respect to each Authorized User Account, and agrees to notify Artie if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Customer is responsible for all activities that occur under the Account, including the activities carried out by individual employees, contractors or others.

3. Permission to Use the Service.

a. Right to Access Artie Services. Subject to your compliance with this Agreement, Artie grants to you a limited, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to access and use the features and functionalities of the Artie Services as set forth in the applicable Order Form. Certain of our downloadable software made available on or through your use of the Artie Services or via third parties may be provided to you under separate licensing terms, rather than the terms and conditions of this Agreement. The applicable terms and conditions shall be disclosed to you where the downloadable software is made available to you within the Artie Services. As stated above, all Artie Connectors are licensed to you either under the ELv2 License Addendum (attached if applicable), or the terms and conditions of this Agreement, unless otherwise agreed upon in the Order Form.

b. Beta Releases and Features. Artie may provide you with “alpha”, “beta”, or other early-stage components of the Artie Services, connectors, integrations, or features (“Beta Releases”). Artie makes no promises that future versions of Beta Releases will be released or will be made available under the same commercial terms. Artie may terminate your right to use any Beta Releases at any time in Artie’s sole discretion, without liability. In case Artie terminates your right to use any Beta Releases, Artie shall provide Customer with notice of such termination. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, SECURITY VULNERABILITIES, AND OTHER PROBLEMS FOR WHICH ARTIE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.

c. Use Outside of the United States. Artie and the Artie Services are operated from the United States. Artie does not make any representations or warranties that the Artie Services will meet all of the legal and/or regulatory requirements of any non-U.S. jurisdiction and Artie expressly disclaims all liability in connection with the foregoing.

d. Modification of the Artie Services. We reserve the right to modify or discontinue certain features of the Artie Services at any time. Artie shall provide notice to Customer of any such modifications.

e. Additional Terms. Your use of certain features of Artie Services may be subject to additional terms and conditions that Artie will disclose to you through the Artie Services or that you otherwise acknowledge as part of your downloading of any applicable software or applications related to the Artie Services (the “Additional Terms”), such terms and conditions for any downloadable software or applications that Artie may offer and service level agreements concerning the Artie Services (“SLAs”).

4. Fees and Payment.

a. Calculation of Fees. You agree to pay the fees set forth in the applicable Order Form. Our third-party payment services providers may charge additional fees for the use of their services, including fees in connection with cross-border monetary transactions. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged, including the time-period in which those fees will be charged. All fees are in U.S. Dollars and are non-refundable, unless otherwise stated in this Agreement. Artie or its third-party payment service providers may change any fees, including by adding fees, on a going-forward basis at any time. Artie or its third-party payment service providers will charge the payment method you specify at the time of purchase (the “Payment Method”), which you represent and warrant that you are authorized to use. You authorize Artie to charge all sums described in your Order Form to that Payment Method. If you pay any applicable fees with a credit card, Artie may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If your account does not have sufficient funds or your credit card declines a charge for the fees due, Artie may refuse your use and access of Artie Services.

If Customer’s use of any Artie Services exceeds the usage or capacity set forth on the applicable Order Form, or otherwise requires the payment of additional Fees (per the terms of this Agreement), Artie will invoice Customer in arrears for such additional usage or capacity and Customer agrees to pay the additional Fees in the manner provided herein.

b. Payment Terms. Artie will bill for the Artie Services through an invoice, through the marketplace where the original purchase was made, or directly through credit card if provided. Full payment for invoices must be received by Artie within 30 days after the issuance of the invoice (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. If Customer is paying by credit card, Customer represents and warrants that it has the right to use the credit card provided and grants Artie the right to provide the credit card information, including the credit card number, its expiration date and billing address, to third parties for the purposes of facilitating payment transactions. Artie reserves the right to charge a 3% surcharge for any credit card payments. Verification of information may be required prior to the acknowledgment or completion of any payment transaction. If Customer believes that Artie has billed Customer incorrectly, Customer must contact Artie no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Artie’s customer support department.

c. Taxes. Fees do not include taxes, levies, duties or similar governmental assessments of any nature (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Artie has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Artie will invoice Customer and Customer will pay that amount unless Customer provides Artie with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Artie, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Artie receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Artie’s request, Customer will provide to Artie its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the ordered services.

d. On-Premise Usage Calculation. With respect to On-Prem Software, if Customer’s system configuration blocks Artie’s ability to determine the monthly amounts owed for Customer’s use of such On-Prem Software, then at Artie’s request Customer will provide a monthly report and such other reasonably requested information in order for Artie to determine such amounts, including a breakdown of Users, data sources and destinations between Customer-internal usage and powered by Artie usage. For On-Prem Software provided on a fixed monthly or annual fee, such monthly report shall not be applicable.

5. Billing Subscription; Automatic Renewal. If you are on a billing subscription plan, your subscription is subject to auto-renewal on the same terms and subscription length set forth in the Order Form unless and until you cancel your subscription or Artie terminates it. Your Payment Method will be charged automatically upon the next renewal of your subscription all applicable fees for the next subscription period. You must cancel your subscription before the end of each subscription period in order to avoid billing of the next periodic subscription fees to your Payment Method. Artie will bill the periodic subscription fee to the Payment Method you provide to Artie during registration (or to a different Payment Method if you change your account information).

6. Free Trials; Discounts. Artie may make available trials (for duration indicated from time to time by Artie) for access to the Artie Services without charge to you (each a “Free Trial”). Moreover, from time to time, Artie may offer you discounts or other credits based on campaigns Artie may run from time to time (e.g., customer referral credits, discounts on annual renewals, etc.) (each a “Promotion”). You will be required to create an Account for the Artie Services in order to register for a Free Trial or Promotion. If you wish to continue using the Artie Services at the end of the Free Trial, you will be required to enter a payment method which will be charged in accordance with Sections 4 and 5. If you cancel your Account, any rights to any Promotion shall automatically terminate.

7. Prohibited Conduct. By using the Site or the Artie Services, you agree not to:

a. use the Artie Services for any illegal purpose, or in violation of any local, state, national, or international law;

b. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;

c. copy, modify or distribute the Artie Services (unless otherwise expressly permitted by Artie); or remove any copyright, trademark or other proprietary rights notices contained in or on the Artie Services or any content made available on or through the Artie Services;

d. interfere with security-related features of the Artie Services, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Artie Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;

e. interfere with the operation of the Artie Services or any other user’s use of the Artie Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Artie Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Artie Services, or violating the regulations, policies, or procedures of those networks, equipment, or servers;

f. perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Artie Services accounts of others without permission, or falsifying your age or date of birth;

g. sell or otherwise transfer the access granted herein or any Materials (as defined in Section 14 below) or any right or ability to view, access, or use any Materials; or

h. attempt to do any of the foregoing in this Section 7, or assist or permit any persons in engaging in any of the activities described in this Section 7.

i. with respect to On-Prem Software, (i) translate or localize any On-Prem Software; (ii) redistribute, encumber, sell, rent, lease, sublicense, display, publish, disclose or otherwise transfer rights to any On-Prem Software, in whole or in part, to any third party; or (iii) allow any third party (other than contractors that are Users) to access or use the On-Prem Software.

8. Linked Sites and Community-Developed Services. The Artie Services may include links to other websites or services (“Linked Sites”) solely as a convenience to you and other users (e.g., links to websites where you may select OS Connectors, third-party websites where your data is stored, etc.). The Artie Services may provide tools that enable the importation and/or exportation of your information to Linked Sites. By using these tools, you agree that Artie may transfer such information to the applicable Linked Sites. Linked Sites are not under our control, Artie is not responsible for their use of your imported or exported information. Furthermore, the Artie Services may require you to download and/or install certain third party components in order to access and use certain features within the Artie Services, including OS Connectors and other open source, third-party or community-developed features, components, or services (collectively, “Community-Developed Connectors/Services”). Customer acknowledges that Artie does not review and is not responsible for the Community-Developed Connectors/Services, including without limitation the security of the Community-Developed Connectors/Services or the fitness of Community-Developed Connectors/Services for any purpose, and your use of any Community-Developed Connectors/Services or Linked Sites may be subject to additional third party terms and conditions. Artie makes no express or implied warranties with regard to the Community-Developed Connectors/Services, or any information, materials, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF COMMUNITY-DEVELOPED CONNECTORS/SERVICES AND LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON COMMUNITY-DEVELOPED CONNECTORS/SERVICES OR LINKED SITES OR AVAILABLE THROUGH COMMUNITY-DEVELOPED CONNECTORS/SERVICES OR LINKED SITES, IS SOLELY AT YOUR OWN RISK.

9. Termination.

a. Either party may terminate this Agreement in the event the other party materially breaches the Agreement and, to the extent that such breach can be cured, fails to cure such breach within thirty (30) days after receipt of notice by the other party.

b. We may terminate this Agreement or suspend or terminate your Artie Account at any time for any reason. We will notify you within thirty (30) days of termination of these Service by email or at the next time you attempt to access your Artie Account.

c. If Artie terminates this Agreement, due to a breach by you of this Agreement, any prepaid fees shall be wholly non-refundable. If you terminate this Agreement due to a material breach by Artie, you shall receive a pro-rata refund of any prepaid fees for Artie Services not yet received.

d. You may terminate your Account in accordance with the applicable Order Form by providing written notice within thirty (30) days to customer service at [email protected]. If you terminate your Account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Artie Services incurred prior to termination and any prepaid fees shall be wholly non-refundable except as expressly set forth herein.

e. Upon any termination or expiration of this Agreement, whether by you or Artie, any information that you have submitted or uploaded on or through the service or that which is related to your Account may no longer be accessed by you and Artie will have no obligation to maintain any information in its databases or to forward any information to you or any third party. Upon any termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration.

10. Feedback; OS Contributions. If you provide any comments, suggestions or other feedback to Artie regarding the Artie Services (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Artie to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Artie a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use and otherwise freely exercise and exploit the Feedback in any manner and for any purpose. Any modifications, changes, and enhancements you make to any of the Artie Connectors shall be licensed to Artie pursuant to the terms of the ELv2 license, if applicable.

11. Customer Data.

a. Protections for Customer Data; Personal Data. Excluding Registration Information, Customer owns any data and information it integrates via data pipelines connected through the Artie Connectors (“Customer Data”). Customer hereby grants to Artie a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers), right and license during the term of the Agreement to use the Customer Data strictly to perform Artie’s obligations under this Agreement, including to provide the Artie Services and to ensure the Artie Services are working as intended. Artie treats any Customer Data as Customer confidential information. Artie will implement commercially reasonable efforts at all times to protect Customer Data from unauthorized use, access, or disclosure in the same manner that Artie uses to protect its own confidential information of a similar nature. You are solely responsible for obtaining all rights, consents and permissions necessary for Artie to process Customer Data in connection with the Artie Services. To the extent that Customer Data includes any information that reasonably relates, directly or indirectly, to an identified or identifiable natural person (“Personal Data”), the parties agree to comply with their respective obligations under the Artie Data Processing Addendum, which is hereby incorporated into this Agreement.

b. Special Data. In the event that Customer intends to integrate any Customer Data considered to be sensitive or otherwise subject to specific protections under applicable laws exceeding any requirements that apply to Personal Data generally, such as, for illustrative purposes, information that is regulated by the Health Information Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standard (“PCI DSS”), the Gramm-Leach-Bliley Act (“GLBA”) and other U.S. federal, state, or foreign laws applying specific security standards (collectively, “Special Data”), Customer shall evaluate whether the technical and organizational measures described in the Data Processing Addendum are sufficient to protect Special Data. Customer shall not integrate any Special Data to the Artie Services if Customer determines that such technical and organizational measures are insufficient to protect Special Data in accordance with applicable laws.

c. Customer Responsibilities. Customer is responsible for security relating to its environment, particularly its computer hardware systems, storage platforms and computer frameworks, and security relating to its configuration of the Artie Services. This includes implementing and managing procedural, technical, and administrative safeguards on its systems and networks sufficient to: (a) ensure the confidentiality, security, integrity, and privacy of Customer Data and (b) follow the principle of least privilege when connecting the Artie Services to Customer’s computer hardware systems, storage platforms and computer frameworks, especially by granting no more than read-only access to data sources. Customer is also responsible for provisioning Users, including: (i) methods of authenticating Users (such as SSO or industry-standard secure username/password policies); (ii) managing admin privileges; (iii) deauthorizing personnel who no longer need access to the applicable Artie Services; and (iv) setting up any API usage in a secure way. Artie will have no obligations or liability as to any loss resulting from Customer’s security configuration or administration of the Artie Services.

d. Usage Data. Customer agrees that Artie has the right to aggregate, collect and analyze data and information relating to the Artie Services (“Usage Data”) and shall be free (during and after the term hereof) to (i) use Usage Data and other information to improve Artie’s products and services, and (ii) disclose Usage Data and other information solely in an aggregated and de-identified format that does not identify Customer or any individual.

12. Modification of this Agreement. Artie may update the terms and conditions of this Agreement (which may include changes pricing and plans) from time to time with prior notice to Customer in accordance with notice provisions in Section 19. The updated version of this Agreement will be available at https://artie.com/docs/legal/terms-of-service. Following such notice, your continued use of the Artie Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. If you do not agree to the updated version of this Agreement, this Agreement will be terminated immediately, and if you are using a paid version of the Artie Services, you may elect to receive a pro-rata refund of any prepaid fees applicable to Artie Services not yet received. The updated version of this Agreement supersedes all prior versions. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.

13. Ownership; Proprietary Rights. The Artie Service is owned and operated by Artie. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Artie Services (the “Materials”) provided by Artie (through use and access of the Artie Services or otherwise) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in Artie Services are the property of Artie or the corresponding third-party licensors (for clarification, all Artie Connectors are owned by Artie and licensed in accordance with the ELv2 license unless otherwise specified in an Order Form). Artie reserves all rights to the Materials (other than the OS Connectors or other Materials licensed to you pursuant to separate third party terms and conditions) not granted expressly in this Agreement.

14. Indemnity.

a. Indemnity by Artie. Artie agrees to defend, indemnify, and hold harmless you and your officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against all third party claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with infringement by the Artie Services of any U.S. patent, copyright, trademark or trade secret. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Artie determines these actions are reasonably necessary to avoid material liability, Artie may at its option: (i) procure a license for the affected portion of the Artie Services; (ii) modify the Artie Services so as to avoid infringement but be materially equivalent; or (iii) terminate the Order Form for the affected Artie Services and refund any fees you have pre-paid for Artie Services not yet received. Notwithstanding the above, Artie’s obligations under this Section do not apply to the extent infringement results from: (a) modification of the Artie Service by someone other than Artie or its subcontractors; (b) combination of the Artie Service with other third party services where the Artie Service would not by itself be infringing (c) use of any version of the Artie Service other than the current release; (d) any OS Connectors; (e) in the case of On-Prem Software, that are modified by or on behalf of Customer after delivery by Artie; (f) in the case of On-Prem Software, where Customer continues the allegedly infringing activity after being notified thereof or after being provided an update that would have avoided the alleged infringement, or (g) where Customer’s use of the Artie Services is not strictly in accordance with this Agreement. In addition, Artie’s obligations under this Section shall not apply to the extent you are using a Free Trial or Beta Releases. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY OF AND THE ENTIRE LIABILITY OF ARTIE, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

b. Indemnity by Customer. You agree that you will be responsible for your use of the Artie Services, and you agree to defend, indemnify, and hold harmless Artie and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Artie Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Artie Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.

c. Indemnification Procedures. Each party’s defense and indemnification obligations are subject to the indemnifying party receiving: (i) prompt written notice of a claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified party at the indemnifying party’s expense (as to reasonable out-of- pocket costs). The indemnifying party must not settle any claim without the indemnified party’s prior written consent if the settlement would require the indemnified party to admit fault, pay amounts that the indemnifying party must pay under this Section, or take or refrain from taking any action. The indemnified party may participate in a claim through counsel of its own choosing at its own expense.
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15. Warranty Disclaimers.

a. TO THE EXTENT PERMITTED BY LAW, THE ARTIE SERVICES, ANY OTHER MATERIAL, AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ARTIE MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, ARTIE SPECIFICALLY DISCLAIMS ANY WARRANTY OR CONDITION: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY ARTIE WILL MEET ANY PARTICULAR REQUIREMENTS, INCLUDING THAT SUCH SERVICES AND PRODUCTS SHALL BE FREE OF SECURITY VULNERABILITIES; (ii) THAT SERVICES OR PRODUCTS OFFERED BY ARTIE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH YOUR USE OF THE ARTIE SERVICES, ANY MATERIALS OR ANY COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT ARTIE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

b. CUSTOMER IS SOLELY RESPONSIBLE FOR TESTING ANY ON-PREM SOFTWARE BEFORE USING IT IN A LIVE ENVIRONMENT, THE PROTECTION OF ITS DATA AND INFORMATION THROUGH INSTALLATION OF THE MOST RECENT COMPUTER VIRUS DETECTION PROGRAMS, AND THE TIMELY CREATION OF BACK-UP COPIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ARTIE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT ANY ON-PREM SOFTWARE LICENSED WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, AND THE RESULTS OF USING THE ON-PREM SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. ARTIE SHALL NOT BE LIABLE FOR ANY DAMAGE (INCLUDING FOR LOSS OR CORRUPTION OF DATA), OR RESPONSIBLE FOR RESTORATION OF SUCH DATA, IN EACH CASE TO THE EXTENT SUCH DAMAGE RESULTS FROM CUSTOMER’S INSUFFICIENT TESTING OF ANY ON-PREM SOFTWARE PRIOR TO DEPLOYMENT IN A LIVE ENVIRONMENT.

c. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT ARTIE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

16. Limitation of Liability.

a. IN NO EVENT WILL ARTIE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE ARTIE SERVICES OR ANY MATERIALS OR CONTENT WITHIN THE ARTIE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE ARTIE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

b. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE ARTIE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE ARTIE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO ARTIE FOR ACCESS TO AND USE OF THE ARTIE SERVICES IN THE 6 MONTHS PRIOR TO THE CLAIM OR (II) $50.

c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. Governing Law; Forum. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder (and not deemed subject to arbitration pursuant to Section 19), you and Artie agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all disputes.

18. Dispute Resolution US and Canadian Residents. If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and your principal place of business is in the United States or Canada, your options in the case of a dispute arising out of or related to this Agreement are to (a) go to small claims court (if applicable) or (b) bring a claim in binding arbitration as described in this Section 18; you may not bring that claim in another court or participate in a non-individual class action claim against Artie. This Dispute Resolution section applies only if Customer that have a principal place of business in the United States or Canada or, if the Customer is an individual, if you live in the United States of Canada. For all other Customers, Section 20 hereof shall apply in lieu of this Section 18.

a. Small Claims. Either of the parties can bring a claim in small claims court in (a) San Francisco, California, (b) the county where you live, or (c) another place the parties both agree on, as long as it qualifies to be brought in that court.

b. Arbitration. If any dispute cannot be resolved amicably and informally and a small claims action is not initiated, Artie and you agree to resolve any claims related to these Terms (or our other legal terms) through final and binding arbitration, regardless of the type of claim or legal theory. If one of the parties brings a claim in court that should be arbitrated and the other party refuses to arbitrate it, the other party can ask a court to force both parties to go to arbitration (compel arbitration). Either party can also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. With respect to any arbitration proceeding the following process shall be followed:

i. Any disputes involving a claim or claims of ten thousand dollars ($10,000) or less, in the aggregate must be resolved through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference) (each a “Sub 10K Arbitration”).

ii. Any Sub 10K Arbitration shall be conducted through the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.

iii. The following rules will apply to any Sub 10K Arbitration: (a) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (b) the arbitration must not involve any personal appearance by the parties or witnesses (unless Artie and you agree otherwise); and (c) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction.

iv. Disputes that involve a claim (or claims) of more than ten thousand dollars ($10,000) in the aggregate must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person. To the extent permitted by the AAA’s applicable rules, upon your request Artie will agree to conduct the arbitration by telephone or online.

v. Any judgment rendered by the arbitrator in any arbitration proceeding may be entered in any court having jurisdiction and the arbitrator’s decision shall be final and legally binding.

c. No Class Actions. Artie and you each agree that each party can only bring claims against the other on an individual basis. This means: (a) neither party can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action; (b) an arbitrator cannot combine multiple people’s claims into a single case (or preside over any consolidated, class, or representative action); and (c) an arbitrator’s decision or award in one person’s case can only impact that user, not other users, and can’t be used to decide other users’ disputes. If a court decides that this “No class actions” clause isn’t enforceable or valid, then this entire Dispute Resolution for US and Canadian Residents section will be null and void, but the rest of the Terms will still apply and the Dispute Resolution for non-US and non-Canadian Residents of these Terms shall apply instead to you with respect to dispute resolution as if you were not a resident of the United States or Canada.

d. Changes to this Section. Notwithstanding the terms of Section 18 of this Agreement, if Artie changes this Dispute Resolution for US and Canadian Residents section after the date you entered into this Agreement or accepted an updated version of this Agreement pursuant to Section 18 (whichever is later), you may reject any such change by providing Artie written notice of such rejection by mail or hand delivery to: Artie Technologies Inc. Attn: 601 Van Ness Ave Apt 28, San Francisco, CA 94102, or by email from the email address associated with your account to: [email protected], within 30 days of the date such change became effective in accordance with Section 18. To be effective, the notice must include your full name (or the full name of the entity on whose behalf you are submitted the notice) and clearly indicate your intent to reject changes to this Dispute Resolution for US and Canadian Residents section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Artie in accordance with the provisions of this Dispute Resolution for US and Canadian Residents section as of the date entered into this Agreement or or accepted an updated version of this Dispute Resolution for US and Canadian Residents section pursuant to Section 18 and this Section 18 (whichever is later).

19. General.

a. Assignment. Neither party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent; provided that each party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its business or assets related to this Agreement.

b. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

c. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) in the case of notices to You that are sent via electronic mail to the contact person indicated in your Order Form, twenty-four (24) hours after sending. All such notices will be sent to the addresses set forth above or to such other addresses as may be specified by either party to the other party in accordance with this Section.

d. Waiver. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

e. Entire Agreement. This Agreement, together with all Order Forms the Privacy Policy, any applicable Additional Terms, any applicable SLA, and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Artie regarding your use of and access to the Artie Services, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to this Agreement.

f. Section Headings. Use of section headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions.

g. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.