Subscription Agreement
This Subscription Agreement ("Agreement") is between ARC Document Solutions, LLC, a Texas limited liability company ("ARC"), with its principal place of business at 12657 Alcosta Blvd., Suite 200, San Ramon, CA 94583, and the organization agreeing to these terms ("Client").
ARC provides a cloud-based software platform with product modules (collectively, the "ARC Facilities Platform and Modules") that provide quick and easy access to building and equipment information, as well as optional services relating to digitizing and setting up content (collectively, "ARC Facilities"). This Agreement governs Client's access to and use of ARC Facilities.
By signing an Order Form (as defined below) relating to ARC Facilities, or using the ARC Facilities Platform and Modules on a trial basis, you agree to this Agreement as the Client. If you are agreeing to this Agreement for use of ARC Facilities by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to the terms of this Agreement, otherwise you must not sign up for or use ARC Facilities.
"Affiliate" means any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership of a majority share of the stock, equity or voting interests of such entity. A Client Affiliate may procure services under this Agreement for its own account pursuant to a SOW executed by such Customer Affiliate. A Client Affiliate who signs a SOW will be deemed to be the Client hereunder and solely responsible for its performance or non-performance hereunder.
"AUP" means ARC's acceptable use policy, posted at www.arcfacilities.com/contracts/AUP.
"Client Data" means all data and information, including, without limitation, any physical and electronic documents, graphics or images that are created, installed, uploaded, provided or transferred by Client or Client's Users in connection with access to and use of the ARC Facilities Platform and Modules.
"License Subscription" means the right to access and use the ARC Facilities Platform and Modules as described in Exhibit A and as set forth in an SOW.
"Other One-Time Services" means such optional one-time custom services provided by ARC to Client as set forth in an SOW.
"Quick Start Program" means the one-time services provided by ARC to Client as set forth in an SOW.
"SLA" means ARC's standard service level agreement, currently posted at www.arcfacilities.com/contracts/SLA.
"SOW" means a statement of work in the form attached as Exhibit B signed by both parties from time to time during the Term.
"Users" means users of Client's License Subscription account, including Client's, and Client's Affiliate's, employees, consultants, contractors and agents.
2.1 Use. During the Term (as defined below), Client and its Users may access and use the ARC Facilities Platform and Modules pursuant to the terms of this Agreement and any applicable SOW. Access to the ARC Facilities Platform and Modules is granted to individual Users and cannot be shared with or used by third parties who are not authorized Users under this Agreement.
2.2Modifications; Updates. ARC may modify and update the ARC Facilities Platform and Modules, the Optional Services (as defined below), SLA and AUP from time to time. If ARC modifies the ARC Facilities Platform and Modules in a manner that materially reduces their functionality, ARC will notify Client at the email address associated with Client’s account, and Client may provide notice within thirty days of the modification to terminate this Agreement.
2.3.1 The License Subscription allows Client and Users to download software used in connection with the ARC Facilities Platform and Modules. If any component of that software is offered under an open source license, ARC will make the license available to Client and to the extent that the provisions of that license grant Client additional rights, those provisions may override some of the terms of this Agreement with respect to that component of the software.
2.3.2 ARC grants to Client during the Term a limited non-exclusive license to use the software solely in connection with the License Subscription and in accordance with this Agreement. This license is non-transferable, non-sublicensable and will be fully paid up upon Client’s payment of fees owed under this Agreement.
3.1 Support. ARC will provide support to Users via email at Support@ARCFacilities.com and via phone at 1-855-879-2721. Support is included in the License Subscription at no additional charge.
3.2 SLA. ARC will provide the service levels described in the SLA. The remedies listed in the SLA are Client's sole remedy for any failure of the ARC Facilities Platform and Modules.
4.1 Optional Services. ARC will provide the Services Subscription, and/or Other One-Time Services (the “Optional Services”), if any, as specified in an SOW, and Client will provide assistance necessary to enable delivery of the Optional Services.
5.1 Acceptable Use. Client will comply with the AUP. In addition, Client will not: (a) use the ARC Facilities Platform and Modules for service bureau or time-sharing purposes or in any other way allow third parties to exploit the ARC Facilities Platform and Modules, except Client’s Users; (b) provide passwords or other log-in information to any third party, except Client’s Users; (c) share non-public features or content of the ARC Facilities Platform and Modules with any third party; or (d) access the ARC Facilities Platform and Modules in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the ARC Facilities Platform and Modules, or to copy any ideas, features, functions or graphics of the ARC Facilities Platform and Modules. In the event that it suspects any breach of the requirements of this Section 5.1, ARC may suspend Client’s access to the ARC Facilities Platform and Modules without advance notice, in addition to such other available remedies.
5.2 Unauthorized Access. Client will take reasonable steps to prevent unauthorized access to the ARC Facilities Platform and Modules, including protecting its Users’ passwords and other sign-in information. Client will notify ARC immediately of any known or suspected unauthorized use of the ARC Facilities Platform and Modules.
5.3 Compliance with Laws. In its use of the ARC Facilities Platform and Modules, Client will comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data.
5.4 Use and Access. Client is responsible and liable for: (a) its Users’ use of the ARC Facilities Platform and Modules, including unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Client; and (b) any use of the ARC Facilities Platform and Modules through Client’s account, whether authorized or unauthorized.
6.1 Fees. Client will pay all fees specified in each SOW in U.S. Dollars. Except as otherwise provided in this Agreement, fees are non-cancellable and non-refundable.
6.2 Invoicing & Payment. Fees for the License Subscription, Quick Start Program and any Optional Services are due within 30 days of the invoice date without deduction of any kind. Any late payments will be subject to a service charge equal to 2% per month of the amount due or the maximum amount allowed by law, whichever is less.
6.3 Taxes. The amounts payable under this Agreement are exclusive of any sales, use, excise, value added, import, business, service, goods and services, consumption, withholding or other applicable taxes, tariffs or duties (“Taxes”). Client is solely responsible for payment of all Taxes except for any taxes based solely on ARC’s net income.
7.1 Term. The term of this Agreement will commence on the Effective Date and continue for a period of five (5) years (“Term”); provided, however, that this Agreement will not terminate with respect to an SOW while such SOW is in effect. This Agreement will automatically renew for successive one (1) year periods (each a “Renewal Period”) unless either party gives the other party written notice at least ninety (90) days prior to the end of the then-current term.
7.2 Termination. Either party may terminate this Agreement for cause upon thirty (30) days written notice (10 days in the event of non-payment) to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such notice period. If ARC terminates this Agreement due to Client’s material breach of this Agreement, ARC is not obligated to issue a refund or credit for any unused portion of fees paid for the License Subscription, Quick Start Program and Optional Services. Upon termination by Client for uncured breach by ARC, ARC will refund Client any prepaid unused fees after the effective date of termination.
7.3 Outstanding Fees. Termination, for any reason, will not relieve Client of the obligation to pay fees for the License Subscription, Quick Start Program and Optional Services completed by ARC prior to the effective date of the termination in accordance with the applicable SOW.
7.4 Effect of Termination. Client may download Client Data that is in electronic format prior to the effective date of termination of this Agreement. ARC will provide to Client a digital copy of Client Data that is in electronic format promptly following ARC’s receipt of Client’s written request for Client Data that is in electronic format, which written request must be received by ARC prior to the effective date of termination of this Agreement. If this Agreement is terminated for Client’s material breach, the full balance of any unpaid fees will immediately become due and payable, together with any arrears unpaid at the time of default. Promptly following termination of this Agreement, ARC will, unless legally prohibited, remove and permanently delete all Client Data (and any backups thereof) in its systems or otherwise in its possession or under its control. ARC will not be liable for any loss or damage incurred by Client, its Users or any third party as a result of ARC’s deletion of Client Data upon termination of this Agreement.
7.5 Surviving Provisions. Sections 5, 6, 8, 9, 11.2, 12 and 13 will survive any termination or expiration of this Agreement.
8.1 Reservation of Rights. ARC retains all right, title, and interest in and to the ARC Facilities Platform and Modules, including all related proprietary software and underlying infrastructure and all graphics, user interfaces, logos, and trademarks reproduced and through the ARC Facilities Platform and Modules. This Agreement does not grant Client any intellectual property license or rights in or to the ARC Facilities Platform and Modules or any of components, except to the limited extent that this Agreement specifically sets forth Client’s Users right to use and access the ARC Facilities Platform and Modules.
8.2 Suggestions. ARC may use, modify and incorporate into its products and services, license and sublicense any feedback, comments or suggestions related to the ARC Facilities Platform and Modules, Quick Start Program and Optional Services that Client or Users may provide to ARC without any obligation to Client.
8.3.1 Client retains all right, title and interest in and to Client Data. Client grants ARC and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, irrevocable, sub-licensable and transferable license to host, cache, copy, and display Client Data in any form, medium, or technology now known or later developed during the Term and any Renewal Period for the purpose of providing products and services under this Agreement.
8.3.2 Client represents and warrants that (i) Client owns or has sufficient legal right to the intellectual property rights in the Client Data, (ii) Client has and will keep in effect during the Term, all such licenses, approvals, consents and permissions necessary to provide the Client Data to ARC at no charge to ARC and (iii) the Client Data does not violate applicable law or the rights of any third party. Client will indemnify, defend (with counsel reasonably acceptable to ARC) and hold ARC harmless from any reasonable costs and other amounts that ARC may incur from Client’s failure to comply with this Section.
8.3.3 Promptly following termination of this Agreement, ARC will, unless legally prohibited, remove and permanently delete all Client Data, and Client will indemnify, defend (with counsel reasonably acceptable to ARC) and hold ARC harmless from any claim or liability arising from such removal and deletion.
8.3.4 ARC will not be responsible or liable for the accuracy of Client Data. Client is solely responsible for retaining adequate back-ups of Client Data and assumes all risk related to the transmission of Client Data to the ARC Facilities Platform and Modules. Client agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the ARC Facilities Platform and Modules, Client assumes such risks. ARC provides no representation, warranty or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties.
8.3.5 Unless it receives Client’s prior written consent, ARC will not access, process, or otherwise use Client Data other than as necessary to provide the ARC Facilities Platform and Modules, Quick Start Program and Optional Services; provided, however, that ARC may compile aggregated statistics that may include Client Data and data of other clients for internal or statistical use, provided that such use will not include any information that would identify Client or its Users or that would result in a breach of ARC’s obligations under Section 10.
9.1 During the Term, ARC and Client may have access to confidential or proprietary information of the other party (“Confidential Information”). Both parties agree to use the Confidential Information only as necessary to fulfill their respective obligations under this Agreement and agree to hold such Confidential Information in confidence, except such disclosure as may be required by law. Each party agrees that it will treat the other party’s Confidential Information with the same degree of care as it treats its own Confidential Information. Each party’s Confidential Information will remain the property of that party.
10.1 If ARC creates any audio, video, or printed marketing material (collectively the “Materials”) in connection with the Services, Client agrees that ARC may use and display the Materials solely for marketing and promotional purposes without liability for infringement of copyright or other proprietary rights. Client grants to ARC and its agents a limited, worldwide, non-exclusive, fully paid-up and royalty-free, perpetual, and irrevocable license to use, reproduce, publicly perform, and display the Materials.
11.1 Limited Warranty. In regard to the Quick Start Program and Optional Services only, ARC warrants that such services will be performed in a professional and workmanlike manner in accordance with the applicable SOW. This limited warranty for the Quick Start Program and Optional Services will survive for a period of ninety (90) days following completion of the Quick Start Program or Optional Services. This limited warranty does not cover issues or failure resulting from abuse, misuse, alteration, acts of nature or natural disaster or use of the ARC Facilities Platform and Modules or the software used in connection therewith or any hardware. Client’s sole remedy for breach of this limited warranty will be will be, in ARC’s sole discretion and at no charge to Client, (a) to use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity or, if ARC determines such remedy to be impracticable, (b) to allow Client to terminate and receive as its sole remedy any prepaid fees for the Quick Start Program or Optional Services for the remainder of the Term or the then current Renewal Period after the effective date of termination.
11.2 Disclaimer. CLIENT ACCEPTS THE ARC FACILITIES PLATFORM AND MODULES “AS IS” AND AS AVAILABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ARC MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ARC DOES NOT GUARANTEE THAT USE OF THE ARC FACILITIES PLATFORM AND MODULES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS OR THAT CLIENT DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
12.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHTHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, ARC’S MAXIMUM LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY SOWS) WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ARC PURSUANT TO THIS AGREEMENT (INCLUDING ANY SOWS) IN THE PRECEDING SIX (6) MONTH PERIOD. NOTWITHSTANDING THE FOREGOING, THIS SECTION 13 WILL NOT APPLY WITH RESPECT TO (A) DAMAGES FOR BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY (B) CLIENT’S BREACH OF SECTION 5 OR SECTION 8.3.2, OR (C) A PARTY’S BREACH OF SECTION 9.
13.1 Amendments. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
13.2 Entire Agreement. This Agreement, including any SOW, constitutes the entire agreement between Client and ARC with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. In the event of a conflict among documents the following order of precedence will apply: the SOW, this Agreement. Any terms and conditions on a Client purchase order will not apply to this Agreement and are null and void.
13.3 Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
13.4 13.4 Attorneys’ Fees and Costs; Waiver of Jury. The prevailing party in any action to enforce or interpret this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. To the maximum extent permissible, the parties hereby waive their rights to a trial by jury and acknowledge that such waiver is part of the consideration supporting this Agreement, without which, the parties would not have entered into this Agreement.
13.5 Notice. Notices must be sent via first class post or overnight courier and are deemed given when received. Notices to Client may also be sent to the applicable account email address and are deemed given when sent. Notices to ARC must be sent to ARC Document Solutions, LLC, 12657 Alcosta Blvd., Suite 200, San Ramon, CA 94583, with a copy to ARC Legal Department.
13.6 Waiver. A waiver of any default is not a waiver of any subsequent default.
13.7 Subcontracting; Assignment. ARC may subcontract the provision of the Quick Start Program and Optional Services, or any part thereof, including technical support, to subcontractors selected by ARC. Client may not assign this Agreement or any rights or obligations under this Agreement without the written consent of ARC. ARC may not assign this Agreement without providing notice to Client, except ARC may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
13.8 No Agency. ARC and Client are not legal partners or agents, but are independent contractors.
13.9 Force Majeure. Except for payment obligations, neither ARC nor Client will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance).
13.10 No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, Users are not third-party beneficiaries to Client's rights under this Agreement.
13.11 Authority. Each individual executing this Agreement on behalf of a party represents and warrants that he or she has the authority to do so and has the power to bind the party on whose behalf he or she is signing.
13.12 Export Restrictions. The export and re-export of Client Data via the ARC Facilities Platform and Modules may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The ARC Facilities Platform and Modules may not be used in Cuba, Iran, North Korea, Sudan or Syria, or any country that is subject to an embargo by the United States and Client must not use the ARC Facilities Platform and Modules in violation of any export restriction or embargo by the United States or any other applicable jurisdiction.
EXHIBIT A
ARC Facilities Platform and Modules and Optional Services
ARC Facilities is comprised of a cloud-based software platform (“Platform”) with the following modules that may be purchased separately or together – Building Plans, Emergency Information, O&M Documentation, Hospital Compliance, Legacy Documents, and Construction Projects (“Modules”).
The Platform
The Platform uses proprietary technology to read the contents of building plans and documents, making information searchable with quick and easy access on mobile and desktop devices.
- ARC Facilities has ongoing development and release of new functionality.
- ARC will provide the cloud hosting and access via Amazon Web Services.
- ARC will maintain service levels as set forth at www.arcfacilities.com/contracts/sla.
The Modules
Building Plans - Works as part of, and requires, the Platform. Building Plans provides quick and easy access to building information.
Emergency Information - Works as part of, and requires, the Platform. Emergency Information (also known as the Emergency Module) provides quick and easy access to critical building, life safety, and emergency-related equipment information.
O&M Documentation - Works as part of, and requires, the Platform. O&M Documentation (also known as the Equipment Module) provides quick and easy access to equipment information while working on or off site. Equipment information may include O&M manuals, warranties, equipment photographs, inspection reports, map locations, notes and useful links. The equipment is findable via search, QR code scanning, and interactive maps.
Healthcare Compliance - Works as part of, and requires, the Platform. Healthcare Compliance (also known as the Compliance Module) provides healthcare facilities with historical building related documents stored alongside, but separate from, documents used for routine operations and building operations.
Legacy Documents - Works as part of, and requires, the Platform. Legacy Documents is an organized, online, secure storage location for historical building related documents stored alongside, but separate from, documents used for routine operations and building operations.
Construction Projects - Works as part of, and requires, the Platform. Construction provides quick and easy access to construction project documents and information.
Quick Start Program
ARC's team will implement the Platform and Modules for the square footage specified in the SOW:
a Project Management throughout the implementation until Go Live including setting up and configuring the Platform and Modules for Client.
bDigitization of paper content, if applicable, and uploading of digital content.
i.Client will provide documents for buildings representing the square footage specified in the SOW, packaged in boxes, ready for access and pick up by ARC’s services team. Client does NOT need to organize the documents. Additional fees may apply if Client provides additional documents for other buildings not specified in the SOW. Document types not specified below (i.e., non-facilities-related documents) are excluded and additional fees may apply.
A. Documents for Buildings Plans - Large format as-built building plans and related campus and floor maps.
B. Documents for Emergency Information – Emergency plans and related emergency-response documents, campus maps, current building floor plans, and other emergency-related documents.
C. Documents for O&M Documentation – Equipment-related O&M binders, warranties and related equipment information.
D. Documents for Healthcare Compliance - Hospital facilities compliance documents required for The Joint Commission compliance reviews.
E. Documents for Construction Projects - Included document types are construction plans, as-builts, O&M manuals, warranties, permits, RFIs & submittals. Other document types are not included.
ii.Documents will be scanned at 200 DPI resolution black & white. Documents that Client provides must be of good quality and must not require additional preparation prior to scanning. If the quality of the documents provided by Client requires document preparation (in the discretion of ARC), ARC will provide pricing and timelines for those documents.
iii.ARC will return Client’s documents promptly following completion of document scanning and indexing.
c. Photo services – photo capture, upload, and pinning to map locations for shutoffs, emergency equipment, and critical equipment.
d. Forms creation – create fillable PDF forms based on existing Client forms.
e. Training – User training.
Implementation is completed once the Client’s content is accessible in the Platform and User training has been completed (“Go Live”).
Optional Services
Other One-Time Services – Additional services required by Client, as specified in the SOW.