Terms of Service‍

These Terms of Service as amended from time to time (collectively the “Agreement”) form an agreement between the customer accessing and otherwise using the Arco AI Services (the “Customer”) and Arco AI, Inc. (“Arco AI”), the supplier of the Arco AI Services, and is entered into on the earlier of the date Customer first uses any part of the Arco AI Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Arco AI and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

This Agreement sets forth the terms and conditions that govern the provision and use of the Arco AI Services.

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BY USING THE Arco AI ServiceS (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(j). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE Arco AI ServiceS. CUSTOMER REPRESENTS AND WARRANTS TO Arco AI THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE Arco AI ServiceS ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO Arco AI THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

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THE Arco AI ServiceS MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

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Arco AI’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE Arco AI ServiceS, EXCEPT WITH Arco AI’S PRIOR WRITTEN CONSENT.

Arco AI Services
1. Provisioning of the Arco AI Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Arco AI will make the Arco AI Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
2. Restrictions on Use. Customer will not itself, and will not permit others to:
  1. sub-license, sell, rent, lend, lease or distribute the Arco AI Services or any Intellectual Property Rights therein, or otherwise make the Arco AI Services available to others other than Permitted Users;
  2. use the Arco AI Services to permit timesharing, service bureau use or commercially exploit the Arco AI Services;
  3. use or access the Arco AI Services:
    1. in violation of any applicable law;
    2. in a manner that threatens the security or functionality of the Arco AI Services; or
    3. for any purpose or in any manner not expressly permitted in this Agreement;
  4. use the Arco AI Services to create, collect, transmit, store, use or process any Customer Data:
    1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
    2. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
    3. that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
  5. Modify the Arco AI Services;
  6. reverse engineer, decompile or disassemble the Arco AI Services;
  7. remove or obscure any proprietary notices or labels on the Arco AI Services, including brand, copyright, trademark and patent or patent pending notices;
  8. access or use the Arco AI Services for the purpose of building a similar or competitive product or service;
  9. perform any vulnerability, penetration or similar testing of the Arco AI Services; or
  10. use the Arco AI Services for any purpose or in any manner not expressly permitted in this Agreement.
3. Permitted Purpose. Customer may access and use the Arco AI Services solely for Customer’s internal business purposes.
4. Restricted Countries and Entities. Customer represents and warrants that it has not been listed on any U.S. or Canadian government list of prohibited or restricted parties. Customer represents and warrants that it is not located in any country that is subject to a U.S. or Canadian government embargo or designated by the U.S. or Canadian government as a “terrorist supporting” country.
5. Suspension of Access; Scheduled Downtime; Modifications. Arco AI may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
  1. suspend Customer’s access to or use of the Arco AI Services or any component thereof:
    1. if Customer or any Permitted User violates any provision of this Agreement;
    2. for scheduled maintenance;
    3. due to a Force Majeure;
    4. to address any emergency security concerns;
    5. if required to do so by a regulatory body or as a result of a change in applicable law; or
    6. for any other reason as provided in this Agreement.
  2. Modify the Arco AI Services.
6. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Arco AI to the Arco AI Services.
7. Subcontracting. Arco AI may engage third parties to assist it in providing the Arco AI Services or any part thereof.
8. Third-Party Products. The Arco AI Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Arco AI does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Arco AI as “certified” or otherwise. Arco AI cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Arco AI. Arco AI is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
User Accounts
1. In order for Customer to access and use the Arco AI Services, Arco AI will issue one account (the “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Arco AI Services (each, a “Permitted User”).
2. The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Arco AI Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Arco AI Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Arco AI of any actual or suspected unauthorized use of the Arco AI Services. Arco AI reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
3. If Customer makes a request to have its Customer User Account deleted, Arco AI will retain such Customer User Account and any associated Customer Data for a period of seven (7) days from the date of the deletion request (the “Account Retention Period”). During the Account Retention Period, the Customer User Account will be inaccessible to the Customer, but Customer may request to have its Customer User Account restored by contacting Arco AI pursuant to Section 12. After the Account Retention Period, the Customer User Account will be permanently deleted as well as any associated Customer Data, excluding Customer Data that is required to be retained for longer in accordance with the Privacy Policy. Once the Customer User Account is permanently deleted, Customer will not be able to recover its Customer User Account.
Ownership; Reservation of Rights
1. The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Arco AI, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
  1. provide the Arco AI Services;
  2. create output generated and returned by the Arco AI Services (“Output”);
  3. improve and enhance the Arco AI Services and its other offerings; and
  4. produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
2. Arco AI may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Arco AI and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Arco AI.
3. As between Customer and Arco AI, Customer owns all Output. Arco AI hereby assigns to Customer all its right, title and interest in and to the Output. Customer acknowledges and agrees that due to the nature of machine learning, Output may not be unique or accurate. Customer is responsible for evaluating the Output and for ensuring that any Output is appropriate, accurate, complete, and does not violate any applicable laws. Customer is responsible for its use of the Output at all times.
4. Arco AI or its licensors retain all ownership and Intellectual Property Rights in and to:
  1. the Arco AI Services;
  2. anything developed or delivered by or on behalf of Arco AI under this Agreement (excluding the Output);
  3. all other Arco AI’s Confidential Information, including but not limited to, any reports generated from the Arco AI Services or any Aggregated Data; and
  4. any Modifications to the foregoing (i), (ii) and (iii).
5. (collectively “Arco AI Property”).
6. Customer grants to Arco AI and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Arco AI Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of the Arco AI Services or any of Arco AI’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Arco AI is not obligated to use any Feedback.
7. All rights not expressly granted by ****Arco AI ****to Customer under this Agreement are reserved.
Privacy

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Customer understands that Personal Information will be treated in accordance with Arco AI’s privacy policy located at Privacy Policy (the “Privacy Policy”) or such other place as may be updated by Arco AI’s from time to time.

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Confidential Information
1. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include**,** except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
2. Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
  1. disclose Confidential Information of the Discloser to any person, except to:
    1. in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
    2. in the case of Arco AI to Arco AI’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Arco AI Services;
  2. use Confidential Information of the Discloser; or
  3. alter or remove from any Confidential Information of the Discloser any proprietary legend.
3. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
4. Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
5. Return of Confidential Information. Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Arco AI may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
Warranty and Disclaimer
1. Customer Warranty. Customer represents and warrants to and covenants with Arco AI:
  1. that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Arco AI to provide the Arco AI Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Arco AI and to or from all applicable third parties.
2. GENERAL DISCLAIMER. Arco AI DOES NOT WARRANT THAT THE Arco AI ServiceS (INCLUDING ANY CONTENT, DATA OR INFORMATION GENERATED THROUGH ARTIFICIAL INTELLIGENCE) WILL BE UNINTERRUPTED OR ACCURATE OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Arco AI ServiceS. FOR CLARITY, CUSTOMER ASSUMES ALL RISK, NOT LIMITED TO, FOR: (I) CONTENT UPLOADED TO THE Arco AI ServiceS, (II) THE OUTPUTS GENERATED BY THE ARTIFICIAL INTELLIGENCE FEATURES OF THE Arco AI ServiceS, (III) ITS USE OF THE Arco AI ServiceS, AND (IV) ANY ACTION ARISING FROM OR RELATED TO ANY ALLEGATION THAT THE OUTPUTS GENERATED BY THE ARTIFICIAL INTELLIGENCE FEATURES OF Arco AI’S ServiceS INFRINGE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE Arco AI ServiceS (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY Arco AI TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Arco AI HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Arco AI EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE Arco AI ServiceS OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, NON-INFRINGING OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Images‍

The Arco AI Services provide Customer with access to a selection of digital stills and videos made available to Arco AI by third parties (the “Images”). Images are for use within the Arco AI Services only and may not be printed.
1. As of May 11, 2024, Images are provided by Getty Images (Canada), Inc. (“Getty Images”) and Unsplash, Inc. (“Unsplash”). The following restrictions apply to Customer’s use of the Images provided by Getty Images and Unsplash:
  1. Customer will use: (A) Images provided by Getty Images in accordance with the Getty Images Content License Agreement available at https://www.gettyimages.ca/eula; and (B) Images provided by Unsplash in accordance with the Unsplash Terms and Conditions available at https://unsplash.com/terms; and
  2. Customer will not: (A) sell, modify, re-use, or re-sell the Images on a stand-alone basis; (B) activate the “right-click” function in the Images, or reverse engineer, decompile, or disassemble the Arco AI Services to enable the download or use of the Images without payment of fees; or (C) obtain any ownership rights to the Images.
Indemnities

The Customer will defend, indemnify and hold harmless Arco AI, and its officers, directors, employees and agents (each, a “Arco AI Indemnitee”) from and against any and all Losses incurred by a Arco AI Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate of a Arco AI Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Arco AI Services by the Customer or any Permitted User; (iv) any allegation the data, information or content generated by Customer, arising from the use of the Arco AI Services, infringe any third-party Intellectual Property Rights; or (v) use of the Arco AI Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Arco AI in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Arco AI. For clarity, Customer assumes all responsibility for the data, information or content generated by the Arco AI Services, including those generated by artificial intelligence.

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Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
1. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF Arco AI IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE Arco AI ServiceS IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL Arco AI’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
2. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Arco AI BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
1. Term. This Agreement will commence on the Effective Date and continue to be in effect for until the end of Customer’s subscription (the “Initial Term”). The Term will automatically renew for successive periods equivalent to the Initial Term (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
2. Termination by Arco AI. In addition, and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Arco AI Services may be terminated or suspended by Arco AI at any time at Arco AI’s sole discretion. Arco AI may immediately terminate Customer’s right to use the Arco AI Services or this Agreement: (1) if Arco AI believes that Customer or any Permitted User has violated this Agreement; (2) if Arco AI believes the use of Customer Data with the Arco AI Services is not in Arco AI’s or its users’ best interests; (3) if Arco AI ceases to offer the Arco AI Services; or (4) as required by applicable laws.
3. Termination. Notwithstanding any other Section of this Agreement, Arco AI may, in its discretion, terminate the Agreement at any time by providing at least 30 days’ advance written notice to Customer. Arco AI may, in addition to other relief, terminate this Agreement if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Arco AI may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
4. Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Arco AI Services and return any Arco AI Property in its possession and certify in writing to Arco AI that the Arco AI Property has been returned. In the event that applicable law, including without limitation privacy laws, does not permit Arco AI to comply with the delivery or destruction of the Customer Data, Arco AI warrants that it shall ensure the confidentiality of the Customer Data in accordance with applicable law.
5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), Section 13 (Notices), Section 14 (General Provisions), and Section 15 (Definitions).
Support Services

Customer will generally have access to Arco AI’s technical support via email [email protected]. Arco AI may amend the Support Services from time to time in its sole discretion.