Term and Conditions

ARTHA SYSTEMS LLC

1. PLEASE READ CAREFULLY: THESE TERMS OF SERVICE (“TERMS”) WILL CONSTITUTE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“SELLER”), AND ARTHA SYSTEMS LLC (“ARTHA”) UPON SIGNING WHEN PRESENTED WITH THESE TERMS WHEN YOU ARE FIRST GIVEN ACCESS TO, OR BY USING THE ARTHA WEB APPLICATION (“SERVICE”) IN ANY MANNER, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE SERVICE. THESE TERMS SUPPLEMENT THE EXECUTED SUBSCRIPTION SERVICES AGREEMENT, OR LIKE END USER AGREEMENT (“AGREEMENT”) BY AND BETWEEN SELLER AND EITHER ARTHA OR AN AUTHORIZED ARTHA RESELLER (“RESELLER”). IF YOU DO NOT HAVE SUCH AN AGREEMENT, YOU MAY NOT USE THE SERVICE. TO THE EXTENT OF ANY CONFLICT BETWEEN THE AGREEMENT AND THESE TERMS, THESE TERMS SHALL CONTROL AND GOVERN.

2. Terms of Service. Subject to the terms and conditions of the Agreement, ARTHA grants to Seller a limited non-exclusive, non-transferable (except in connection with an assignment as permitted in the Agreement) and terminable license to use the Service purchased by Seller as described in the applicable documentation solely for Seller’s internal operations unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Seller will be subject to these Terms.

2.1 Seller Must Have Internet Access. Seller must have or must obtain access to the Internet and software that will access and display Web-based content. Seller must also provide all equipment necessary to make such (and maintain such) connection to the Internet. T-1, T-3, DSL, cable, or other high speed Internet connection is required for proper performance of the Service.

2.2 Accuracy of Seller’s Contact Information. Seller shall provide accurate, current and complete information on Seller’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.

2.3 Passwords, Access, and Notification. Seller may designate a number of users under Seller’s account that corresponds to the number of seats purchased by Seller. Seller may provide and assign a unique user name and password to each authorized user for each seat purchased. Seller is prohibited from sharing passwords and/or user names with any unauthorized user. Seller will be responsible for the confidentiality and use of Seller’s user’s passwords and user names. Seller will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Seller data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Seller’s account. Any electronic communications that ARTHA receives via Seller’s accounts will be deemed to have been sent by Seller. Seller agrees to immediately notify ARTHA if Seller becomes aware of any loss or theft or unauthorized use of any of Seller’s user names, password, and/or account number.

2.4 Seller’s Conduct. Seller shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Seller shall not send any electronic communications from the Service that are unlawful, harassing, libelous, defamatory, or threatening. Except as expressly permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Seller shall not access the Service by any means other than through the interfaces that are provided by ARTHA. Seller shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Service, or by creating Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Seller shall not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Seller will not in any way express or imply that any opinions contained in Seller’s electronic communications are endorsed by ARTHA. Neither Seller, nor someone acting on Seller’s behalf, shall use the Service to target for solicitation any ARTHA Sellers for purposes of providing any competitive product. Seller shall ensure that any use of the Service by Seller’s employees (or Seller’s other authorized users) is in accordance with the terms and conditions of this Agreement.

2.5 Third-Party Software. Seller shall use third party software necessary for accessing the Service, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by ARTHA. Seller shall use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by ARTHA and to follow logon procedures for services that support such protocols. ARTHA is not responsible for notifying Seller of any upgrades, fixes or enhancements to any such software; or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet, which are not owned or operated by ARTHA.

2.6 Transmission of Data. Seller understands that the technical processing and transmission of Seller’s electronic communications is fundamentally necessary to Seller’s use of the Service. Seller consents to ARTHA’s interception and storage of electronic communications and/or Seller data, and Seller acknowledges and understands that Seller’s electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by ARTHA. Seller acknowledges and understands that changes to Seller’s electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Seller further acknowledges and understands that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. ARTHA is not responsible for any electronic communications and/or Seller data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by ARTHA, including, but not limited to, the Internet.

2.7 Links/Third-Party Data. The Service may provide, or third parties may provide, links to other websites or resources. Because ARTHA has no control over such websites and resources, ARTHA is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. In addition, ARTHA is not responsible for any third-party information that may be provided to Seller through the Service (e.g., through the integration of the Service with a third party online application).

2.8 Trademark Information. ARTHA, the ARTHA logo, the ARTHA SHOPPING CENTER, the ARTHA STOREFRONT, the ARTHA CONTROL CENTER, and other ARTHA service marks, logos and product and service names are marks of ARTHA (the “ARTHA Marks”). Seller agrees not to display or use the ARTHA Marks in any manner without ARTHA’s express prior written permission.

2.9 Confidential Information. For purposes of this Agreement, confidential information shall include the terms of the Agreement, Seller data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section 2.9 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.

2.10 Usage Limits. ARTHA currently limits the number of SKU’s based on the Subscription Service Agreement; Sellers using SKU in excess of this limit will be charged additional fees. ARTHA limits the bandwidth usage to 5 (five) gigabytes per month per account. If a Seller’s bandwidth usage exceeds 5 (five) gigabytes in a given billing month, ARTHA reserves the right to charge additional fees with no additional notice.

2.11 License From Seller. It is ARTHA’s practice to make tape backup copies of the Seller data in Seller’s account and stores the backup copies for approximately one year at ARTHA’s offsite storage facility. Subject to the terms of this Agreement, ARTHA agrees that, as between Seller and ARTHA, Seller data shall at all times be considered the property of Seller.

3. Ownership. ARTHA shall own all rights, title and interest in and to all intellectual property rights in the Service. The license granted to Seller does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by ARTHA.

4. Disclaimer of Warranties. EXCEPT ANY WARRANTIES PROVIDED TO SELLER ARE EXPRESSLY PROVIDED IN THE AGREEMENT. EXCEPT FOR THE FOREGOING, ARTHA DOES NOT GRANT ANY WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE SERVICE OR ANY OTHER SUPPORT OR SERVICES RELATED THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARTHA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, TITLE, ACCURACY OF DATA, NONINTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. ARTHA DOES NOT REPRESENT THAT SELLER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET SELLER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.SELLER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR SELLER’S PURPOSES.

5. Limitations of Liability. ARTHA SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF ARTHA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY. ARTHA’S CUMULATIVE LIABILITY TO SELLER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY SELLER TO EITHER ARTHA OR AN AUTHORIZED ARTHA RESELLER FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE DISCLAIMER OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS MAY NOT BE PERMITTED IN CERTAIN JURISDICTIONS. IN SUCH CASE, COMPANY’S AND ARTHA’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in for access to the Service and that, were ARTHA to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.

6. Export Laws. The licenses granted to Seller and Seller’s use of the Service is subject to all applicable export or import laws, regulations, orders, or other restrictions. Notwithstanding anything contained in these Terms or the Agreement to the contrary, Seller shall not export or import, directly or indirectly, any software or technical information to or from any country to which such export or import is restricted or prohibited or as to which such government or any agency thereof requires a license or other governmental approval at the time of export or import without first obtaining such license or approval. Furthermore, Seller shall cooperate as requested by ARTHA to insure compliance with any such export or import restrictions. Seller will hold harmless and defend, at ARTHA’s option, ARTHA from any third party claim arising from Seller’s failure to comply with this section.

7. Government End Users. If Seller is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Service and related documentation include “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).

8. Suspension/Termination.

8.1 Suspension For Delinquent Account. ARTHA reserves the right to suspend Seller’s access to and/or use of the Service (and that of any other Seller of ARTHA that controls, is controlled by, or is under common control with Seller) (a “Seller Affiliate”) for any accounts for which any payment is due but unpaid but only after ARTHA has provided Seller two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice (“Delinquent Account Status”). ARTHA shall not be liable to Seller or to any Seller Affiliate or other third party for any suspension of the Service resulting from Seller’s nonpayment of fees as described in this Section 8.1.

8.2 Suspension for Ongoing Harm. ARTHA may, with reasonably contemporaneous oral or written notice to Seller, suspend Seller’s access to the Service if ARTHA reasonably concludes that Seller is using the Service to engage in denial of service attacks, spamming, or using the Service to engage in illegal activity, and/or Seller’s use of the Service is causing immediate, material and ongoing harm to ARTHA or others. If ARTHA suspends Seller’s access to the Service, ARTHA will use commercially reasonable efforts to resolve the issues causing the suspension of Service. ARTHA shall not be liable to Seller nor to any third party for any suspension of the Service under such circumstances as described in this Section 8.2.

9. Modification to or Discontinuation of the Service. ARTHA reserves the right at any time to modify, temporarily or permanently, the Service (or any part thereof). In the event that ARTHA modifies the Service in a manner which removes or disables a feature or functionality on which Seller materially relies, ARTHA, at Seller’s written request, shall use commercially reasonable efforts to substantially restore such functionality to Seller. In the event that ARTHA is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction or if restoring such functionality would cause ARTHA to infringe upon the intellectual property rights of a third party), Seller shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for the terminated portion of the Term. Seller acknowledges that ARTHA reserves the right to discontinue offering the Service at the conclusion of Seller’s then current term. Seller agrees that ARTHA shall not be liable to Seller or to any third party for any modification of the Service as described in this Section 9.

10. Third Party Beneficiary Rights. ARTHA shall be considered an intended third party beneficiary of these Terms and the EULA. As such, ARTHA may enforce these Terms and the EULA as reasonably necessary to protect its rights.

11. Governing Law. These Terms and your use of the Service shall be governed by the laws of the State of New Jersey, USA, without regard to principles of conflict of laws.

12. Modification to the Terms of Service. These Terms may be amended by ARTHA in its discretion by providing thirty (30) days advance notice to a user designated as an administrator of your ARTHA account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Seller’s account.