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 an Order Form executed by such Client Affiliate. A Client Affiliate who signs an Order Form will be deemed to be the Client here under and solely responsible for its performance or non-performance here under.
- “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 Order Form.
- “Order Form” means the ordering document related to ARC Facilities signed from time to time during the Term.
- “Other One-Time Services” means such optional one-time custom services provided by ARC to Client as set forth in an Order Form.
- “Quick Start Program” means the one-time services provided by ARC to Client as set forth in an Order Form. “Services Subscription” means the optional ongoing services provided by ARC to Client as set forth in an Order Form.
- “SLA” means ARC’s standard service level agreement, currently posted at www.arcfacilities.com/contracts/sla.
- “Users” means users of Client’s License Subscription account, including Client’s, and Client’s Affiliate’s, employees, consultants, contractors and agents.
ARC FACILITIES PLATFORM AND MODULES
- Use. During the Term, Client and its Users may access and use the ARC Facilities Platform and Modules pursuant to the terms of this Agreement and any applicable Order Form. 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.
- Modifications; 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.
- 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.
- 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.
- Trial Use Client may access and use the ARC Facilities Platform and Modules on a trial basis during the applicable trial period subject to the terms of this Agreement. ANY ACCESS AND USE FOR TRIAL PURPOSES IS PROVIDED “AS IS” AND ARC PROVIDES NO SLA OR WARRANTIES FOR THE TRIAL. ANY CLIENT DATA PROVIDED DURING THE TRIAL WILL NOT BE STORED OR AVAILABLE AFTER THE TRIAL.
- 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.
- 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. Credits issued pursuant to the SLA apply to outstanding or future invoices only and will be forfeited upon termination of the Agreement. ARC is not required to issue refunds or make payments against such credits.
- Optional Services. ARC will provide the Services Subscription and/or Other One-Time Services (the “Optional Services”), if any, as specified in an Order Form, and Client will provide assistance necessary to enable delivery of the Optional Services.
- 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.
- 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.
- 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.
- 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.
FEES; PAYMENT; TAXES
- Fees. Client will pay all fees specified in each Order Form in U.S. Dollars. Except as otherwise provided in this Agreement, fees are non-cancellable and non-refundable.
- 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.
- 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.
TERM & TERMINATION
- Term. The term of this Agreement will commence on the Effective Date and continue for a period of five (5) years (“Term”). 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.
- Termination .Either party may terminate the 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 the fees paid for 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.
- 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 Order Form.
- 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.
- Surviving Provisions. Sections 5, 6, 8, 9, 11.2, 12 and 13 will survive any termination or expiration of this Agreement.
- Reservation of Rights. ARC retains all right, title, and interest in and to the 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.
- Suggestions. ARC may use, modify and incorporate into its products and services, license and sub-license 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.
- Client Data.
- 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. Client will not provide, upload or transmit any personally identifiable or sensitive information to the ARC Platform and Modules and agrees that ARC will have no liability for Client’s failure to comply with this requirement.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
LIMITED WARRANTY & DISCLAIMER
- 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 Order Form. 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.
- 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.
LIMITATION OF LIABILITY
- 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 WHETHER 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 ORDER FORMS) WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO ARC PURSUANT TO THIS AGREEMENT (INCLUDING ANY ORDER FORMS) 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.
- Modification. ARC may revise this Agreement from time to time and the most current version will be available at www.arcfacilities.com/contracts/subscription-agreement. If a revision, in ARC’s sole discretion, is material, ARC will notify Client (by, for example, sending an email to the email address associated with the applicable account). Client is responsible for checking the most current version of this Agreement regularly. By continuing to access or use the ARC Facilities Platform and Modules after revisions to this Agreement are made available, Client agrees to be bound by the revised Agreement.
- Entire Agreement. This Agreement, including any Order Form, 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 Order Form, this Agreement. Any terms and conditions on a Client purchase order will not apply to this Agreement and are null and void.
- Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
- 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.
- 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.
- Waiver. A waiver of any default is not a waiver of any subsequent default.
- 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 reorganisation or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
- No Agency. ARC and Client are not legal partners or agents, but are independent contractors.
- 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).
- 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.
- 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.
- 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.
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 purchased separately or together – ARC Buildings, ARC Equipment, ARC Compliance, ARC Emergency and ARC Closeouts (“Modules”).
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. The Platform is highly secure and scalable, including a native mobile app and features such as search, interactive maps, forms, pins, tags, mark-ups and collaboration.
- ARC Facilities has ongoing development and release of new functionality. Generally, new functionality is included within the Platform and Modules at no extra charge. From time to time, ARC may release significant new features and functionality that constitute a different module. In this case, and only if ARC charges other clients separately for this new functionality, then such new functionality would not be included in the Services.
- 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.
- There is no cost associated with log-in IDs. Clients may have as many log-ins as they require at no separate or additional cost.
ARC Buildings - Works as part of, and requires, the Platform. ARC Buildings (also known as the Buildings Module) provides quick and easy access to building information including organized as-builts, plans and shutoff locations on interactive maps.
ARC Equipment – Works as part of, and requires, the Platform. ARC Equipment (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.
ARC Compliance - Works as part of, and requires, the Platform. ARC Compliance (also known as the Compliance Module) manages hospital compliance survey documentation with quick and easy access to environment of care, life safety and emergency management information.
ARC Emergency - Works as part of, and requires, the Platform. ARC Emergency (also known as the Emergency Module) provides quick and easy access to critical building, life safety and emergency-related equipment information during emergencies.
ARC Closeouts - Works as part of, and requires, the Platform. ARC Closeouts (also known as the Closeouts Module) provides quick and easy access to organized closeout documents.
Quick Start Program – ARC’s team will implement the Platform and Modules for the square footage specified in the Order Form:
- a. Project Management throughout the implementation until Go Live including setting up and configuring the Platform and Modules for Client.
- b. Digitization of paper content, if applicable, and uploading of digital content.
- i. Client will provide documents for buildings representing the square footage specified in the Order Form, 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 Order Form. Document types not specified below (i.e., non-facilities-related documents) are excluded and additional fees may apply.
- A. Documents for ARC Buildings – Large format building plans, as-builts, and related campus and floor maps.
- B. Documents for ARC Equipment – Equipment-related O&M binders, warranties and related equipment information.
- C. Documents for ARC Compliance – Hospital facilities compliance documents required for CMS/Joint Commission compliance reviews.
- D. Documents for ARC Emergency – Emergency plans and related emergency-reponse documents, campus maps, current building plans, and other emergency-related documents.
- E. Documents for ARC Closeouts – Client will deliver/ship the number of standard banker boxes (i.e., 10”x12”x15” boxes) specified in the Order Form to the ARC North American operations center specified by ARC’s project manager. Included document types are as-builts, O&M manuals, warranties, permits, RFIs & submittals. Other document types are not included. Within 14 days of completion of document scanning and indexing, Client must notify ARC’s project manager if Client wants documents returned or securely shredded. Client is responsible for picking up documents within 10 days of notification that the documents are ready for pick up. If Client wants documents returned, Client must arrange and pay for shipping
- 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, except as noted above for ARC Closeouts.
- c. Photo services – photo capture, upload and pinning to map locations for shutoffs, emergency equipment and critical equipment.
- d. Content enhancements – enhance equipment pages with linked information such as training videos, webpages and/or parts lits.
- e. Forms creation – create forms to Client requirements.
- f. 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 (As May Be Specified in Order Form)
Services Subscription – ARC’s project manager and customer success team will help keep the Client’s content current and accurate, including:
- a. Ongoing updating of content changes into the Platform and Modules as provided to ARC or uploaded by Client, including renovations, equipment changes, emergency procedure changes, photo uploading, organizing and pinning, forms management and creation, and other content updates.
- b. Training – ongoing User training including new Client employees and new product functionality.
- c. Best practices consulting – advise on ARC Facilities Platform and Modules usage improvements based on best practices.
Other One-Time Services – Additional services required by Client, as specified in the Order Form.