End User License Agreement
1. DEFINITIONS
The definitions for some defined terms are set forth below. The definitions for other defined terms are set forth elsewhere in the Agreement.
1.1 API
means the application programming interface through which Customer may access the Platform. Arch reserves the right at any time to modify or discontinue, temporarily or permanently, Customer’s access to the API (or any part thereof) with or without notice.
1.2 Authorised User
means an employee, contractor, or agent of Customer who has been authorized by Customer to access and use the Connectors and Platform under the rights granted to Customer pursuant to this Agreement.
1.3 Connectors
means Arch software and integration components designed to collect and transmit data from factory equipment, systems, and applications into the Platform.
1.1 Customer Content
means Machine Content and User Content, collectively.
1.2 Feedback
means Customer’s feedback, comments, suggestions, ideas, and the like regarding Arch, any Connectors, and/or the Platform.
1.3 Machine Content
means any data or materials collected through Customer’s use of the Connectors. For the avoidance of doubt, Machine Content does not include any Feedback.
1.4 Order
means the mutually-executed ordering document that specifically references this Agreement and describes Customer’s subscription to the Platform and Connectors. The initial Order is attached hereto as Exhibit B.
1.5 Platform
means Arch’s cloud-based and/or on-premises platform designed to collect, store, process, and analyze data from various factory sources for various use cases. The Platform includes capabilities for integrating data from physical equipment, software systems, historical records, web and mobile applications, and Authorized User-entered observations, resolution, or comments.
1.6 SOW
means a mutually-executed statement of work setting forth the customization and development, consulting, and other services related to the Connectors and/or Platform provided by Arch to Customer in connection with the Use Case. The initial SOW is attached hereto as Exhibit C.
1.7 Term
means the period of time commencing on the Effective Date and ending on the expiration of the last effective Order and/or SOW between the parties.
1.8 Use Case
means Customer’s specific use case for the Connectors and/or Platform, as described in the Order and/or SOW, which may include evaluation use.
1.9 User Content
means any data or materials provided by Authorized Users to Arch or collected by Arch through Authorized Users’ use of the Platform. For the avoidance of doubt, User Content does not include any Feedback.
2. ORDERING AND SET-UP
2.1 Orders and SOWs
Customer may place Orders for the Platform and/or Connectors and SOWs for additional services related thereto. Each duly executed Order and SOW shall be part of and subject to the terms and conditions of this Agreement.
2.2 Connectors
The Platform will only work in connection with the Connectors. Customer must install and configure each Connector in accordance with its applicable documentation in order for it to function with the Platform.
2.3 Registration
During Customer’s registration process, Customer will create a Customer account, which includes a unique sign-in name (“Sign-In Name”), password (“Password”), and certain additional information that will assist in authenticating Customer’s identity when Customer logs-in in the future (“Unique Identifiers”). Each Authorized User will need to create a sub-account. When creating an account, Customer and its Authorized Users must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password may be used by only one Authorized User. Customer is responsible for the confidentiality and use of all assigned Sign-In Names, Passwords, and Unique Identifiers. Arch will not be liable or responsible in any way for any loss or damage arising from Customer or its Authorized Users’ failure to comply with the terms of this Section 2.3. Customer will promptly inform Arch of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Arch reserves the right to delete or change any Password, Sign-In Name, or Unique Identifier at any time and for any reason.
2.4 Access
Within 14 days of the effective date of each Order and/or SOW, Customer shall provide access to the resources described in such Order and/or SOW such that Arch can begin performing the installation, integration, and operation activities described in Section 2.5 below.
2.5 Installation
Upon receiving access, Arch shall install, integrate, and operate the Connectors and Platform in accordance with the terms of the applicable Order and/or SOW.
3. INTELLECTUAL PROPERTY; PERMITTED USE; CUSTOMER CONTENT
3.1 License Grant
Subject to the terms and conditions of this Agreement, Arch hereby grants to Customer and its Authorized Users a limited, royalty-free, fully paid-up, non- exclusive, non-sublicensable, and non- transferable license to access and use the Connectors and Platform during the term specified in each Order and/or SOW for its internal business purposes solely as necessary for the Use Case. Customer shall be responsible for the acts and omissions of its Authorized Users in connection with their access and use of the Connectors and Platform.
3.2 Ownership
Other than the limited license granted in Section 3.1 above, all right, title, and interest in and to the Connectors and the Platform, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto, and all intellectual property and other proprietary rights therein, shall be and remain the sole and exclusive property of Arch.
3.3 Restrictions On Use
Customer and its Authorized Users will not (and will not authorize any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of any software relating to the Connectors or the Platform; (ii) resell, distribute, or sublicense the Connectors or the Platform; (iii) remove or modify any proprietary markings or restrictive legends placed on the Connectors or the Platform; (iv) use the Connectors or the Platform in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (v) introduce into any software relating to the Connectors or the Platform, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vi) make abusive or excessively frequent requests to Arch via the API or Platform (which shall be determined by Arch in its sole discretion).
3.4 Customer Content
As between Arch and Customer, Customer owns all right, title and interest in and to the Customer Content. Arch shall use the Customer Content solely to provide the services to Customer hereunder. Customer hereby grants to Arch a perpetual, irrevocable, non-exclusive, sub-licensable, transferable, fully paid-up, royalty-free license to use, and allow others to use, the Customer Content in an aggregate and anonymous manner for analytics, product improvement, and any other lawful purpose. Customer is solely responsible for the accuracy, quality, and legality of Customer Content, and for ensuring that it has all necessary rights to collect, use, and share such content. Subject to the license set forth in this Section 3.4, please reference the Arch Platform Privacy Policy available on its website for a description of how Arch uses and discloses User Content. Customer agrees to indemnify, defend, and hold harmless Arch Parties from and against any claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to Customer Content, including but not limited to any claim that the Customer Content infringes or misappropriates a third party’s intellectual property or other rights, or violates applicable law.
4. AI FEATURES
The Platform may include artificial intelligence and machine learning features or technologies (“AI Features”), which may be wholly or partially provided by third- party AI service providers (“AI Providers”).
4.1 Arch Permitted Uses
Arch may use AI Features to enhance and improve the functionality of the Platform and Connectors, including but not limited to: (i) automating and enhancing operational processes; (ii) implementing protective measures against inadvertent data disclosure; (iii) performing quality control functions; and (iv) conducting impact analyses. Customer acknowledges that Customer Content and AI-generated outputs therefrom may be processed by the AI Features for the purpose of providing analytical insights, recommendations, and improvements through the Platform.
4.2 Customer Permitted Uses
Customer may use the AI Features solely in accordance with the terms of this Agreement, and the AI Provider Terms (as defined below). Customer may only use the AI Features in countries and regions supported by AI Providers as specified in the AI Provider Terms.
4.3 AI Provider Terms
The AI Features may include artificial intelligence models, technologies, or features licensed from the AI Providers that require Arch to pass through additional terms (“AI Provider Terms”). By using the Platform, Customer agrees to comply with such AI Provider Terms made available by Arch to Customer, as such terms may be updated from time to time. As of the Effective Date, the AI Providers and applicable AI Provider Terms are as follows:
- Anthropic PBC: Usage Policy (https://www.anthropic.com/legal/aup);
Countries and Regions Anthropic Supports (https://www.anthropic.com/supported-countries)
- Cohere Inc.: Usage Policy (https://docs.cohere.com/v2/docs/usage-policy)
When Arch introduces new AI Features, Arch may provide additional terms or make updates to the terms that apply to Customer’s use of the AI Features. Arch does not commit to the use of specific AI models in the Platform. Arch reserves the right to add, remove, or exchange AI models, in its sole discretion, at any time.
4.4 Output Verification and Limitations
Notwithstanding any recommendation contained within output of the AI Features, reliance on such outputs is in Customer’s discretion. Customer acknowledges that AI Features consist of emerging technologies and, given the nature of such technologies, their use may result in false, incomplete, incorrect, misleading, or unfair outputs that are not reflective of recent events or information. Customer acknowledges and agrees that outputs should not be relied upon without independent verification for accuracy and completeness. It is Customer’s responsibility to evaluate whether the outputs are appropriate for Customer’s Use Case, including where human review is appropriate, prior to using or sharing outputs. Customer acknowledges and agrees that (i) output from AI Features may not qualify for intellectual property protection; (ii) similar or the same output may be wholly independently produced to similar requests from different customers; and (iii) Customer’s rights to output may not be enforceable against other users of the AI Features. Arch’s indemnification obligations, to the extent provided in the Agreement, shall apply to Arch’s Platform and Connectors, but not to output of the AI Features provided by AI Providers.
5. OBLIGATIONS OF CUSTOMER
5.1 Fees
If any fees are due for use of the Connectors and/or Platform, such fees will be outlined in, and payable in accordance with the terms of, the applicable Order and/or SOW. Customer will pay all such fees (if any) in accordance with the terms of the applicable Order and/or SOW. Any amounts not paid within the net payment period specified in the applicable Order and/or SOW will be subject to late fee of the lesser of 1.5% per month and the maximum amount permitted by applicable law unless otherwise specified in the applicable Order and/or SOW.
5.2 Feedback
Customer may provide timely Feedback to Arch, including, without limitation, Feedback related to the utility of the Connectors and the Platform for the Use Case. Customer agrees that Arch will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer. For the avoidance of doubt, Feedback does not include Customer Content in the Platform.
6. TERM AND TERMINATION
6.1 Term
This Agreement begins on the Effective Date and, unless earlier terminated as set forth herein, continues until expiration of the Term.
6.2 Termination
In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving prior, written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach within 30 days of receipt of such notice. In addition to the foregoing, Arch reserves the right to suspend or terminate Customer’s or any Authorized User’s access to the Platform immediately upon notice in the event of any actual or suspected violation of Section 3.3 (Restrictions on Use). Suspension may continue until the violation is resolved to Arch’s reasonable satisfaction. If the violation is not remedied within 30 days of notice, Arch may terminate this Agreement without further obligation.
6.3 Effect of Expiration or Termination.
Upon any expiration or termination of this Agreement, (i) the rights and licenses granted in Section 3.1 will cease, and Customer will immediately cease all access to and use of the Connectors and the Platform, and (ii) each party will return to the other party or destroy, at such other party’s election, all Confidential Information of such other party and certify in writing as to such return or destruction. Customer is solely responsible for downloading any Customer Content from the Platform prior to the effective date of termination, and Arch shall not be required to retain any Customer Content after such date. If Arch terminates this Agreement due to Customer’s uncured material breach in accordance with Section 6.2, Customer shall remain liable for all committed and non- cancellable fees or charges for the remainder of the Term.
6.4 Survival
Sections 1, 3.2, 3.4, 4.4, 5.2, 6.4, and 7-10 shall survive this Agreement’s expiration or termination.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party, including, without limitation, the Disclosing Party’s business, trade secrets, technology, intellectual property, customers, assets, finances and operations.
7.2 Use and Disclosure of Confidential Information
The Receiving Party will maintain in confidence the Confidential Information during the Term and thereafter and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations or exercising the Receiving Party’s rights under this Agreement.
7.3 Exceptions
The foregoing confidentiality obligations will not apply to information that (i) was publicly known before the Disclosing Party’s disclosure of the information, or becomes publicly known, through no violation of the terms of this Agreement, after the Disclosing Party’s disclosure of the information, (ii) was already known by or in the possession of the Receiving Party at the time of disclosure without any obligation of confidentiality, (iii) was obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality, or (iv) was independently developed by the Receiving Party in the course of work by its employees, who neither used nor had access to Confidential Information.
8. DISCLAIMER OF WARRANTIES
THE CONNECTORS, THE PLATFORM AND ANY INSTALLATION, INTEGRATION, AND OPERATION ACTIVITIES DESCRIBED OR REFERENCED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ARCH AND ITS SUPPLIERS, OFFICERS, AFFILIATES, EMPLOYEES, REPRESENTATIVES, LICENSORS, CONTRACTORS (“ARCH PARTIES”) MAKE NO, AND HEREBY DISCLAIM ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ARCH DISCLAIMS ANY WARRANTY RELATED TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF OUTPUTS. TO THE EXTENT ARCH PARTIES MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. ARCH PARTIES (INCLUDING ITS THIRD-PARTY PARTNERS AND LICENSORS) SHALL NOT BE LIABLE FOR OUTPUTS, INCLUDING ANY RELIANCE PLACED ON THE OUTPUTS GENERATED BY AI FEATURES, INCLUDING CONSEQUENCES OR RESULTS OF THE USE OF THE AI FEATURES AND OUTPUTS OR ANY DETERMINATIONS OR DECISIONS RESULTING THEREFROM.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL ARCH PARTIES BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER ARCH PARTIES WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. ARCH’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO ARCH HEREUNDER. WITHOUT LIMITING ANY OF THE FOREGOING, ARCH SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER CAUSED BY THE ACTS OR OMISSIONS OF ANY THIRD-PARTY VENDOR PROVIDING ANY PRODUCTS OR SERVICES IN CONNECTION WITH CUSTOMER’S USE OF THE API, ANY CONNECTORS, OR THE PLATFORM.
10. MISCELLANEOUS
10.1 Promotion and Marketing
The parties may choose to work collaboratively and in good faith to effectuate a collaborative promotion and/or marketing opportunities.
10.2 Evaluation Use
If Customer’s Use Case is internal evaluation, testing, demonstration or trial basis only (“Evaluation Use”), then this Agreement will govern Customer’s access to and use of the Connectors and Platform except as modified by this Section 10.2. Customer’s license to use the Platform and Connectors for Evaluation Use will commence on the date Arch grants Customer access thereto and continue for 60 days thereafter, unless Arch and Customer agree otherwise (the “Evaluation Period”). Customer may use the Platform and Connectors with an unlimited number of Authorized Users during the Evaluation Period but only for non- commercial, internal Evaluation Use. Either party may terminate their Evaluation Use at any time during the Evaluation Period without liability. At the end of the Evaluation Period, unless otherwise agreed by the parties, Customer’s license to use the Platform and Connectors will automatically cease, and (i) Customer will immediately cease all access to and use of the Connectors and the Platform, and (ii) each party will return to the other party or destroy, at such other party’s election any Confidential Information exchanged in connection with the Evaluation Use. If Customer desires to continue its use of the Platform and Connectors beyond the Evaluation Period, Customer must acquire a license thereto for the applicable fee as documented under an Order and/or SOW.
10.3 Modifications
Customer acknowledges and agrees that Arch has the right, in its sole discretion, to modify this Agreement from time to time. Customer will be notified of modifications by posting such change on online or by notifying Customer. Customer is responsible for reviewing and becoming familiar with any modifications. Customer’s continued use of the Platform and Connectors after the effective date of the modifications will be deemed acceptance of the modified terms.
10.4 Beta Offerings
Arch may, in its sole discretion, offer certain early-stage, test or beta features as part of or in connection with use the Platform or Connectors, which may be designated by Arch from time to time as alpha, beta, engineering sample, pre-production, or early access (“Beta Offerings”). Customer’s use of any Beta Offering is completely voluntary. Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. Customer acknowledges and agrees that all use of any Beta Offering is at its sole risk.
10.5 Waiver
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10.6 Assignment
This Agreement is not assignable, transferable, or sub-licensable by Customer, except with Arch’s prior written consent.
10.7 Governing Law; Venue
This Agreement and any dispute arising out of this Agreement shall be governed by the laws of the State of California without regard to its conflict of laws rules. For all such matters, each party submits to the exclusive jurisdiction the state and federal courts located in Santa Clara County, California.
10.8 Entire Agreement
The parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, including any confidentiality agreements between the parties. Any modification to this Agreement must be in a writing signed by both parties.
10.9 Relationship of the Parties
The relationship between the Parties is that of independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
10.10 Counterparts
This Agreement may be executed in counterparts (which may be exchanged by facsimile or PDF), each of which shall be deemed an original, but which together shall constitute one and the same instrument.
