This End User License Agreement (this “Agreement”) sets out the terms and conditionson which Arnica, Inc., a Delaware corporation with offices at 1150 Sanctuary Parkway, Suite 450, Alpharetta, GA 30009, (“Arnica”) provides access to and use of Arnica’s proprietary software platform (the “Platform”) available on or through the website https://app.arnica.io (the “Site”) to each customer of the Platform (“Customer” or “you”). Each of Arnica and Customer may also be referred to as a “Party” herein and together as the “Parties.” You should read this Agreement carefully. By indicating acceptance of this Agreement, either by singing this End User License Agreement, or by clicking “I Agree”, “Accept” or other similar button, or by otherwise using the Platform, you are entering into a legally binding agreement with Arnica (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Platform on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “Customer” and “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Platform.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND ARNICA, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.

1.              Provision of the Platform.
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1.1         Nature of the Platform. Arnica has developed the Platform, which enables companies to optimize developer operations, including securing development environments, identifying potential risks to source code security and protecting against those risks, and improving the efficiency of such operations. Arnica offers a Basic Version of the Platform free of charge, as well as a paid Premium Version with additional features.

1.2       Provision Generally.  During the Term (as defined in Section 5.1), Arnica will provide Customer with access to and use of the Platform through Arnica’s cloud-hosted software-as-a-service application. Arnica will provide Customer with access to the documentation for the Platform. Customer may use the documentation solely to support Customer’s use of the Platform hereunder. Customer may upload information and data into the Platform, which may include, without limitation, information regarding and access to Customer’s source code management system and audit trails, information regarding employees and other personnel of Customer, and behavioral data of Customer’s developers (the “Customer Data”). The Platform will generate reports based on analysis of Customer Data which identify potential risks associated with Customer’s source code development practices and ways to mitigate such risks (the “Results”), which Customer can access within the Platform or download. The specific terms and conditions under which Customer may utilize the Platform, including the specific deliverables that Arnica shall provide to Customer as Results, and the frequency with which Arnica shall make said Results available to Customer, shall be set forth in one or more applicable Proposal (the “Proposal”), each of which is incorporated into and forms part of this Agreement upon execution by both Parties.

1.3          Grant of Rights.  Subject to Customer’s compliance with the terms and conditions of this Agreement, Arnica hereby grants to Customer a limited, non-exclusive, non-transferable, non-sub-licensable right for the number of Identities allocated to Customer in the applicable Proposal to access and use the Platform to generate the Results, solely for Customer’s internal business purposes, during the Term. An “Identity” shall mean any person that has committed code or had any PR activity in the last 90 days. The number of Identities permitted under this Agreement is set forth in the applicable Proposal. All rights not expressly granted to Customer are reserved by Arnica and its licensors or other providers. There are no implied rights.

1.4         Access; Privacy Policy. Customer can register an unlimited number of users to access the Platform; provided that the number of Identities shall not exceed the number of Identities set forth in the applicable Proposal, and any excess shall be subject to the true-up provisions of Section 4.4. Customer may use a third-party login service to authenticate to the Platform. Customer shall keep all such usernames and passwords safe and secure, and shall be responsible for all use of the Platform using usernames and passwords issued to Customer and designated employees. Customer shall notify Arnica immediately of any actual or suspected unauthorized use of any of its credentials for the Platform. Arnica operates the Platform under the Privacy Policy published at https://www.arnica.io/legal/privacy (the “Privacy Policy”), which is hereby incorporated into this Agreement. Each party shall comply with the Privacy Policy.

1.5         Restrictions.  Customer shall not permit any user, affiliate or any third party to: (a) use the Platform for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Platform, or for any other purpose not expressly permitted herein; (b) permit anyone not allocated to a Customer designated user to access or use the Platform; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Platform, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code), or any other underlying data or technology, associated with the Platform; or (e) use any robot, spider, scraper or other automated means to access the Platform, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Platform. All acts and omissions occurring under Customer Identities shall be deemed to be those of Customer, and Customer shall be responsible therefor. Without limiting any of its other rights or remedies, Arnica reserves the right to suspend any Customer employee’s right to access the Platform if Arnica reasonably believes that the user associated with such Identity has materially violated the restrictions and obligations in this Agreement, in which case, it shall provide Customer prompt written notice of such suspension.

1.6         Customer Cooperation.  Customer shall reasonably cooperate with Arnica in all matters relating to the Platform, and respond promptly to any request from Arnica to provide information, approvals, authorizations or decisions that are reasonably necessary for Arnica to provide the Platform in accordance with this Agreement. Customer will designate a “Key Contact” who will be available for frequent communications with Arnica regarding the use of the Platform by Customer, as well as contacts for administrative and payment matters, and Arnica will designate a point of contact to liaise with the Key Contact..
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2.              Support; Service Levels.  

2.1         Support. Arnica shall provide Customer with an in-app assistant, a service ticket portal and e-mail customer support from 8AM-8PM EST, Monday through Friday, (excluding nationally recognized holidays), which Customer may use to obtain reasonable assistance with respect to use of and access to the Platform and to report any error, defect, or failure, whether full or partial, in the functioning of the Platform or any failure of the Platform to conform with the documentation therefor. Additional support services may be available for paying customers of the Premium Version if so indicated in the applicable Proposal.

2.2         Availability. Arnica shall use commercially reasonable efforts to provide the Platform twenty-four (24) hours a day, seven (7) days a week.Customer agrees that from time to time the Platform may be inaccessible or inoperable for various reasons, including (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Arnica may undertake from time to time; or (c) causes beyond the reasonable control of Arnica, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Arnica shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. Arnica shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Platform in connection with Downtime, whether scheduled or not.

3.              Ownership and Intellectual Property Rights.  

3.1         By Arnica. Customer acknowledges and agrees that as between Arnica and Customer, all right, title and interest in and to the Platform (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, text, images, designs, data and other tangible or intangible technical material or information) made available to Customer by Arnica in providing the Platform, other than the Customer Data and the Results), and all improvements and derivatives of the foregoing, including all intellectual property and proprietary rights embodied therein or associated therewith, are and shall remain owned by Arnica or its licensors or other providers. This Agreement in no way conveys any right, title or interest in the Platform other than a limited right to use the Platform in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Arnica trademark, service mark or logo, or any proprietary notices or labels, including any copyright or trademark notices, from the Platform or any Results. In the event Customer provides Arnica with feedback or suggestions regarding the Platform, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback, other than the Customer Data and the Results, shall be considered Confidential Information of Arnica, and Arnica shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose and without any payment to Customer.

3.2         By Customer. Arnica acknowledges and agrees that as between Arnica and Customer, all right, title and interest in and to the Customer Data and the Results, including all intellectual property and proprietary rights embodied therein or associated therewith, are and shall remain owned by Customer or its licensors. Notwithstanding the foregoing, Results which arewritten reports created by Arnica may include data, modules, components, and analysis frameworks (collectively, “Technical Elements”) owned or developed by Arnica prior to, or independently from, its engagement hereunder, and Arnica retains all rights thereto (and to any modifications or enhancements to Technical Elements developed in the course of providing the Results). Accordingly, to the extent that any such Technical Elements are integrated into any Results, Arnica hereby grants to Customer a perpetual, worldwide, non-exclusive, paid-up, limited license to use, copy and modify such Technical Elements as integrated into such Results for internal purposes only. Customer hereby grants to Arnica a non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Customer Data solely in connection with providing the Platform to Customer, and improving and developing the Platform. In addition, Arnica may analyze Results, and Results of other customers, to create anonymized aggregated statistics or data that do not identify Customer or any individual, and Arnica may during and after the Term use and disclose such statistics or data in any manner in its discretion. Customer shall be solely responsible for, and shall be solely responsible for securing all necessary rights and licenses for, providing, updating, uploading and maintaining, and all Customer Data.

4.              Fees.  

4.1         Fees.  Use of the Basic Version is offered to Customer free of charge. Arnica offers the Premium Version of the Platform with paid subscription plans that allow customers to access additional or exclusive features or content. If you purchase the Premium Version, Arnica will invoice Customer for the fees set forth in the applicable Proposal, and Customer shall pay each invoice within thirty (30) days of the invoice date. Where the SubscriptionTerm (as defined in Section 5.1) exceeds twelve (12) months, Arnica will invoice the fees in advance in annual installments, the first upon the Effective Date and each subsequent installment upon commencement of each successive Annual Billing Period (as defined in Section 5.1). Fees may include subscription fees for Identities and fees for AI Credits, each as set forth in the applicable Proposal; fees for AI Credits allocated to an Annual Billing Period are invoiced in advance together with that Annual Billing Period’s installment. Invoicing in annual installments is a payment convenience only; it does not divide the Subscription Term into separate or successive terms, does not create any renewal, expiration, non-renewal or termination event at the end of any Annual Billing Period, and does not entitle Customer to reduce, cancel, defer or discontinue any installment. Customer’s obligation to pay the fees for the full Subscription Term is unconditional and non-cancelable. All fees are nonrefundable, except as expressly provided in Section 5.3 or Section 9.4.Customer agrees and represents that all information Customer provides to Arnica for the purpose of subscribing to the Platform is accurate, complete and current, and Customer agrees to notify Arnica of any changes to the credit card information associated with Customer’s Arnica account, including changes in billing address and expiration dates. If Arnica does not receive payment as due for a Premium account, Arnica may suspend Customer’s access to the Premium Version of the Platform in accordance with Section 4.3 and/or terminate this Agreement for material breach in accordance with Section 5.2(b). Customer’s failure to pay any undisputed amount when due shall constitute a material breach of this Agreement for purposes of Section 5.2(b).

4.2         Taxes.  All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind, whether foreign, federal, state, local or other, associated with this Agreement, the Platform, or Customer’s access to the Platform. Customer shall be solely responsible for all such taxes, duties and charge, except for taxes imposed on Arnica’s income, which may be invoiced by Arnica from time to time. 

4.3           Late Payments.  Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Arnica for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder. Additionally, in the event of late payment by Customer, Arnica may in its sole discretion suspend Customer’s access to the Premium Version of the Platform with fifteen (15) days prior written notice. Suspension under this Section 4.3 does not relieve Customer of its obligation to pay all fees for the full Subscription Term.

4.4           Usage Limits and True-Up. Customer acknowledges that its use of the Platform may be limited in volume, including as to Identities, as may be set forth in Customer’s Proposal (AI Credit consumption is governed exclusively by Section 4.5 and is not subject to true-up under this Section 4.4). To the extent that the usage volume of any Customer of the Premium Version exceeds the volume covered by such Customer’s then-current subscription, Arnica may invoice Customer an incremental or “trueup” fee for such prior excess use at the rates specified in the applicable Proposal, and Customer shall pay such invoice within thirty (30) days. For clarity, such invoice may issue after the expiration or termination of this Agreement. During the term of this Agreement and for two (2) years thereafter, (a) Arnica shall maintain appropriate records of its activities hereunder (including the volume and other scope of its use of the Platform) in order to reasonably demonstrateand evidence its compliance with this Agreement, including use limits, and (b) Arnica may in its discretion from time to time, review such records using its internal personnel or external advisors, in order to confirm Customer’s compliance with this Agreement (and in the event of non-compliance, without limiting Arnica’s other rights or remedies therefor, Customer shall promptly reimburse Arnica for its costs and expenses associated with such review). 

4.5       AI Credits. In addition to fees for Identities, Customer may purchase Arnica AI Credits (“AI Credits”) in the quantities and at the rates set forth in the applicable Proposal. AI Credits are a prepaid, consumption-based entitlement to use those features of the Platform that Arnica designates as consuming AI Credits, and are drawn down as such features are used, at the consumption rates set forth in the applicable Proposal or, if not so specified, as published by Arnica from time to time.
(a)     Annual Allocation; Expiration; Reset. The quantity of AI Credits set forth in the applicable Proposal is allocated to Customer for each Annual Billing Period (as defined in Section 5.1) and must be consumed during that Annual Billing Period. Any AI Credits that remain unconsumed at the end of an Annual Billing Period expire automatically at the end of that Annual Billing Period and do not carry forward, roll over, accumulate, or otherwise remain available to Customer. At the commencement of each subsequent Annual Billing Period, Customer’s AI Credit balance is reset to the quantity of AI Credits purchased for that Annual Billing Period. AI Credits purchased in addition to the Proposal allocation during an Annual Billing Period expire at the end of that same Annual Billing Period on the same basis.(b)       No Cash Value; Nonrefundable. AI Credits have no cash value, are not transferable, exchangeable, or redeemable for cash or credit, and confer no right other than the entitlement described in this Section 4.5.Except as expressly provided in Section 5.3, fees paid for AI Credits are nonrefundable, including upon expiration under Section 4.5(a).
(c)       Exhaustion. If Customer consumes all AI Credits available to it in an Annual Billing Period, Arnica may suspend Customer’s access to the AI Credit-consuming features of the Platform until Customer purchases additional AI Credits. Any such suspension is limited to those features, does not affect Customer’s access to the remainder of the Platform, does not constitute a breach of this Agreement or a failure by Arnica to provide the Platform, and does not relieve Customer of any payment obligation hereunder.
(d)    Relationship to the Subscription Term. For the avoidance of doubt, the annual allocation, expiration and reset of AI Credits under this Section 4.5 is a consumption mechanic applicable to a prepaid entitlement only. It does not divide the Subscription Term into separate or successive terms, does not create an annual term, an annual term expiration, a renewal event, or a right of non-renewal, and does not confer on either Party any right to terminate, cancel, or elect non-renewal at the end of any Annual Billing Period. Sections 5.1 and 5.2 govern the Subscription Term notwithstanding anything in this Section 4.5.
(e)    Reporting. Arnica will make Customer’s then-current AI Credit balance and consumption history available to Customer within the Platform.

5.              Term; Termination.  
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5.1           Term.  The term of this Agreement (“Term”) shall commence on the Effective Date. The “Effective Date” shall be the date Customer first accesses the Platform, for customers of the Basic Version, or the effective date set forth in the applicable Proposal, for customers of the Premium Version. If Customer purchases a paid subscription for the Premium Version of the Platform, the term of such subscription shall commence on the Effective Date for the paid subscription and, unless earlier terminated in accordance with Section 5.2, shall continue for the period expressly set forth in the applicable Proposal as executed by both Parties (the “Subscription Term”), which may be a period of one (1) year or a multi-year period. Each successive twelve (12) month period within the Subscription Term is an “Annual Billing Period.” Where the Subscription Term exceeds twelve (12) months, the Subscription Term is a single, continuous and non-cancelable term; the Annual Billing Periods within it are billing intervals only and do not constitute separate subscription terms, separate agreements, renewal periods, or points at which either Party may terminate, cancel, or elect non-renewal. No provision of this Agreement shall be construed to create an annual term, an annual term expiration, or an annual exit right within a multi-year Subscription Term. Upon expiration of the Subscription Term, the subscription shall automatically renew for successive renewal terms of twelve (12) months each, or for such other renewal period as the applicable Proposal specifies, at Arnica’s then-current rates, unless either Party gives notice of non-renewal in accordance with Section 5.2(a). Arnica shall notify Customer of any increase in the fees applicable to a renewal term at least sixty (60) days prior to the expiration of the then-current Subscription Term or renewal term.
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5.2           Termination.   
(a)        Non-Renewal. Either Party may elect not to renew a Premium Version subscription by giving the other Party at least thirty (30) days’ prior written notice before the expiration of the then-current Subscription Term or renewal term. Where the Subscription Term is one (1) year, such notice must be given at least thirty (30) days prior to the end of that one-year Subscription Term (the subscription year). Where the Subscription Term is a multi-year period as agreed and executed by both Parties, such notice must be given at least thirty (30) days prior to the end of that multi-year Subscription Term, and may not be given so as to take effect at the end of any Annual Billing Period within it. If neither Party gives such notice, the subscription shall renew as set forth in Section 5.1. Notice of non-renewal by Customer must be given in writing in accordance with Section 11.4; unsubscribing within the Platform is not effective to terminate, cancel, or elect non-renewal of a Premium Version subscription. Customer may discontinue a Basic Version account at any time by unsubscribing within the Platform or by discontinuing use of the Platform.
(b)       Termination for Cause. Either Party may terminate this Agreement by written notice thereof to the other Party if the other Party materially breaches this Agreement and does not cure such breach within fifteen (15) days after written notice thereof.
(c)        Insolvency. Arnica may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
(d)       No Termination for Convenience. Except as expressly set forth in this Section 5.2 or in Section 9.4, neither Party may terminate this Agreement or any Proposal for convenience, without cause, at will, or for any reason not requiring a material breach, and Customer may not terminate, cancel, reduce, or suspend a Subscription Term prior to its expiration. No other provision of this Agreement, and no Statement of Work, shall be construed to confer a right to terminate, cancel, or elect non-renewal other than as set forth in this Section 5.2.
(e)    Effect of Early Termination by Customer. If Customer terminates or purports to terminate this Agreement or any Proposal prior to the expiration of the Subscription Term other than under Section 5.2(b), or if Arnica terminates this Agreement under Section 5.2(b) or Section 5.2(c), all fees for the remainder of the Subscription Term shall become immediately due and payable, without prejudice to any other right or remedy available to Arnica. The Parties acknowledge and agree that such amounts represent the agreed contract price for the Subscription Term to which Customer committed and are not a penalty. 
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5.3         Effects of Termination; Survival.  Effects of Termination; Survival. Upon any expiration or termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate (other than the perpetual license to Technical Elements granted in Section 3.2), and Arnica shall no longer provide access to the Platform to Customer, (b) Customer shall cease and cause its users to cease using the Platform, and (c) each party shall promptly return or destroy any Confidential Information of the other party in its possession, subject to Sections 3.2, 4.4 and 10.3. If Customer terminates this Agreement under Section 5.2(b), Arnica shall refund to Customer a pro-rata portion of any prepaid fees corresponding to the period following the effective date of termination for which the Platform was not provided, together with the fees paid for AI Credits allocated to the then-current Annual Billing Period that remain unconsumed as of that date. Any obligations that have accrued prior to expiration or termination, including payment obligations, shall survive expiration or termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive expiration or termination of this Agreement: Sections 1.5, 3, 4, 5.2(e), 5.3, 6.2, 7.3, 8, 9, 10, and 11.1 through 11.13.

6.              Customer Data.  ​

6.1           Arnica Responsibilities.  Arnica will not use Customer Data other than as permitted in this Agreement. Arnica shall operate the Platform in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. To the extent Arnica processes personal data on Customer’s behalf, such processing is governed by the Data Processing Addendum executed between the Parties or, if none has been executed, by Arnica’s standard Data Processing Addendum availableat https://www.arnica.io/legal/dpa, which is incorporated herein by reference. Arnica maintains a current list of its sub-processors at https://www.arnica.io/legal/subprocessors. Arnica shall notify Customer without undue delay, and in any event within seventy-two (72) hours, after becoming aware of a Security Incident affecting Customer Data.​

6.2           Customer Responsibilities.  Customer is solely responsible for all Customer Data provided by Customer, including for the accuracy, integrity and quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Arnica any Customer Data that is unlawful, that violates the intellectual property or other proprietary rights of any third parties, or that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (b) upload or otherwise make available to Arnica any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (c) interfere with or disrupt the Platform or servers or networks connected to the Platform; or (d) violate any applicable law, rule or regulation, including those regarding the export of technical data.

​7.              Representations and Warranties; Disclaimer.​

7.1           General Representations and Warranties. Each Party hereby represents and warrants to theother Party that: (a) it is a corporation, company or other entity (asapplicable) duly organized, validly existing and in good standing in its jurisdiction of organization; (b) its execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part; (c) the provisions set forth in this Agreement constitute legal, valid and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement do not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.  

7.2           Arnica Limited Warranty.  Arnica warrants that it will provide the Platform in a competent and workmanlike manner, in accordance with good industry practices and this Agreement. Arnica does not warrant that it will be able to correct all reported defects in the Platform or that use of the Platform will be uninterrupted or error free. Arnica makes no warranty regarding features or services (including data or content) provided by any third parties. Arnica retains the right to modify the Platform in its sole discretion; provided that doing so does not have a material adverse impact on the Platform hereunder.  ​

7.3           Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.2 ABOVE, ARNICA MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE PLATFORM AND THE RESULTS (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE PLATFORM OR THE RESULTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE PLATFORM WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, OR (C) AS TO THE ACCURACY OR RELIABILITY OF THE RESULTS OR ANY INFORMATION OBTAINED FROM THE PLATFORM. ​

8.              Limitations of Liability.

​8.1     Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ARNICA’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE PLATFORM AND THIS AGREEMENT, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ARNICA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  

​8.2   Disclaimer of Indirect Damages. EXCEPT FOR (A) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER (FOR PAID CUSTOMERS), (B) A PARTY’S BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY PROVISIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE PLATFORM) OR (C) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE TO ARNICA HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR THE LOSS OF PROFITS OR REVENUES ARISING OUT OF OR RELATED TO THE PLATFORM OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE INCONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE. ​

9.              Indemnification. ​

9.1           Arnica Indemnification. This Section 9.1 applies to subscribers of the Premium Version only. Arnica shall defend, indemnify and hold harmless Customer and its directors, officers, employees and agents (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonableattorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Platform infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).  ​

9.2           Customer Indemnification. Customer shall defend, indemnify and hold harmless Arnica and its directors, officers, employees, agents and providers (“Arnica Indemnified Parties”) from and against any Claims to the extent based on (a) any claim that the Customer Data Infringes any third party intellectual property or proprietary right (excluding patents), or (b) any other violation of Customer’s obligations under Section 6.2 above.

9.3           Indemnification Process. As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or Arnica Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim (provided that the Indemnitee may participate using counsel of its own choosing, at its own expense), and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).

9.4           Exclusions.  Arnica’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Platform (including any use of the Platform not strictly in accordance with the documentation therefor, Arnica’s instructions, and this Agreement), (b) any modification, alteration or conversion of the Platform not created or approved in writing by Arnica, (c) any combination of the Platform with any computer, hardware, software or Platform not provided by Arnica, (d) Arnica’s compliance with specifications or other requirements of Customer, or (e) any Customer Data provided by Customer or any third party data or materials. If the Platform is or may be subject to a Claim of Infringement described in Section 9.1 above, Arnica may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Platform as contemplated herein; or (ii) replace ormodify the Platform so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer the portion of any pre-paid Fees for access to and use of the Platform which does not occur due to such termination. Arnica’s obligations in this Section 9 shall be Arnica’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Platform.

10.           Confidentiality.  

10.1         Definition.  “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder before or during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Customer Data and Results (excluding the Technical Elements) shall be deemed Confidential Information of Customer, and (iii) the Platform shall be deemed Confidential Information of Arnica, regardless of whether or not the Platform is labeled or identified, or would reasonably be considered, confidential.    

10.2         General Obligations.  Each Party agrees that it will during the Term and thereafter: (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors (provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).

10.3         Return or Destruction.  Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, and (b) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination or expiration.

11.           Miscellaneous.

11.1         Assignment. Neither Party may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights hereunder, or delegate any of its obligations hereunder, without the prior written consent of the other Party; provided, Arnica may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights or delegate any of its obligations hereunder to an affiliate or to a successor to all or substantially all of its assets, stock or business, without Customer’s prior written consent. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.  

11.2         Compliance with Laws.  Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.

11.3         Entire Agreement; Amendment.  This Agreement (including all Proposals, and other attachments hereto, which are incorporated herein by reference) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the Parties or this Agreement. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of an Proposal executed by both Parties, the Proposal shall control with respect to the subject matter of that conflict; provided that Sections 5.1 and 5.2 shall control over any Proposal, and no Proposal shall be construed to create an annual term, an annual term expiration, or any right to terminate, cancel, or elect non-renewal within a multi-year Subscription Term, unless the Proposal expressly so provides by specific reference to this Section 11.3. Arnica reserves the right to modify the Basic Version of the Platform at any time, without notice to you. Arnica may also from time to time amend this Agreement prospectively as it applies to the Basic Version, and will notify Customer by posting on the Platform. Customer agrees that Customer’s continued use of the Basic Version constitutes Customer’s agreement to the amended Agreement. With respect to a Premium Version subscription, no amendment published by Arnica shall apply during the then-current Subscription Term or renewal term unless agreed in a writing signed by both Parties; any such amendment shall take effect with respect to that subscription only upon commencement of the next renewal term, and if Customer does not agree to the amendment its sole remedy is to give notice of non-renewal in accordance with Section 5.2(a). If Customer does not agree to any amended Agreement that Arnica publishes with respect to the Basic Version, Customer must terminate its Basic Version account and cease using the Basic Version of the Platform.

11.4         Notices. Any notice required or permitted by this Agreement shall be deemed to have been received as follows: (a) by personal delivery, upon receipt; (b) by certified mail, as evidenced by the return receipt; or (c) by electronic mail to the notice address designated below or on record with the other Party, upon confirmation of receipt (an automated read receipt or delivery confirmation being sufficient). Notices to Arnica may be sent to Arnica’s address set forth in the preamble to this Agreement, with a copy by electronic mail to legal@arnica.io. Customer agrees that notice to Customer’s e-mail address on record with Arnica will constitute formal notice to Customer under this Agreement.​

11.5         Choice of Law.  This Agreement is and will be governed by and construed under the laws of the State of Georgia and the United States of America, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.  ​

11.6         Dispute Resolution. Arnica will attempt to resolve disputes with customers to their satisfaction. If, however, a matter arises that cannot be resolved promptly between Customer and Arnica, Customer agrees that any disputes arising out of or relating to the Platform or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Platform) shall be resolved exclusively by final and binding arbitration administered by the American ArbitrationAssociation (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). Customer agrees that the arbitration shall be held in Atlanta, Georgia, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both Customer and Arnica. Customer agrees that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At Arnica’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). In addition, Customer or Arnica may elect to bring an individual claim in a small claims court, but Arnica does not hereby agree to any personal jurisdiction that is otherwise lacking. Customer agrees that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. Customer further agrees that no claims of other parties may becon solidated with Customer’s or Arnica’s claims in the arbitration without both Customer’s and Arnica’s consent. CUSTOMER IS WAIVING CUSTOMER’S RIGHTS TO HAVE CUSTOMER’S CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST ARNICA. If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the waiver of class, mass, representative, private attorney general, and consolidated actions set forth in this Section 11.6 is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void. The Parties hereby consent to the jurisdiction of any federal or state court located in Atlanta, Georgia for any IP Claim, any small claims action, any proceeding to compel, enforce, or confirm arbitration or an arbitral award, and any other claim or proceeding not subject to arbitration under this Section 11.6, and waive any objections of improper venue or inconvenient forum.

11.7         Injunctive Relief. Each Party acknowledges that its breach of any intellectual property or confidentiality provisions herein (including any limitations or restrictions on use of the Platform) will cause substantial harm to the other Party that could not be remedied by payment of damages alone. Accordingly, the other Party will be entitled to seek preliminary, temporary and permanent injunctive relief, and other equitable relief, for any such breach, without any requirement to post bond, in any court of competent jurisdiction. The Parties hereby consent to the jurisdiction of any federal or state court located in Atlanta, Georgia for any IP Claim or other proceeding for injunctive relief related to this Agreement or their activities hereunder, and waive any objections of improper venue or inconvenient forum.

11.8         Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.​

11.9         Waiver. No waiver by either Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No waiver shall apply to any other time, or any other right, remedy, power or privilege.

​11.10      Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, (a) such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and (b) such provision, in such jurisdiction, shall be replaced by a valid, legal and enforceable provision that best reflects the Parties’ intent for such first provision.

​11.11      Headings; Interpretation.  Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.

​11.12      Counterparts. This Agreement may be executed in two counterparts (which may be delivered by .pdf or other facsimile format acceptable to the Parties), each of which shall be an original and both of which taken together shall form one agreement.  

​11.13      Force Majeure. Arnica shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Arnica, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage. This Section 11.13 shall not excuse or delay Customer’s obligation to pay any amounts due under this Agreement.