Terms of Service
Terms of Service
Arrivalist offers to individuals and/or companies (hereinafter referred to as “Customer” or “Customers”) access to the Arrivalist suite of products upon the signing of an Order with an Arrivalist representative. Upon review and approval by Arrivalist personnel, access to Arrivalist software shall be granted. We do not allow anonymous free trials, including those from temporary email addresses. We suspend all Accounts not following these requirements and obligations of this Agreement. Unique Arrivalist Product terms and conditions are located in Appendix A.
Subscription and Data License Grant
Subject to Customer paying all fees and following the terms and conditions enumerated in this Agreement and the applicable sales quote [if applicable] (hereinafter referenced as “Order Form”), Arrivalist hereby grants to Customer and/or user, and Customer and/or user subscribes to and accepts, a limited and non-exclusive license to access and use the software and content via the Internet and during the term enumerated in the relevant Order Form/Agreement. This license and Agreement are non-transferable except with the prior, express written consent of Arrivalist. Access and use of the software, data and other content shall be initially granted for Customer and/or user promptly after the effective date of any executed Order Form unless there is a statement of work pertaining to initial implementation, in which case initial activation shall occur pursuant to that statement of work. For purposes of clarity and acknowledgement by Customer, acceptance of any Order Form provided by Arrivalist and the terms enumerated therein, contractually binds Customer to the terms of this Agreement and the Order Form.
Arrivalist and associated products websites and all of its content as well as all software, content, methodologies, deliverables, and documentation and services are licensed, not sold to Customer and/or user. As between Customer and/or user and Arrivalist, Arrivalist shall be the sole and exclusive owner of all right, title and interest therein, including without limitation all copies thereof, all updates and other modifications thereto, and all intellectual property rights therein, whether suggested, created, made, or provided by Arrivalist, Customer, or any other person. Customer, Customer’s affiliates, and users shall not acquire any right, title, or interest, express or implied, in any software, content, methodologies, deliverables, or documentation, other than the limited license granted under the terms of this Agreement. To the extent that any of them has or does acquire any such right, title or interest, Customer, on behalf of itself and its affiliates and the users, shall assign and hereby assigns all such rights to Arrivalist.
(a) Arrivalist may offer custom payment terms to a Customer spending more than $50,000 per year with us. For Accounts spending less, all fees are payable net thirty (30) days from the first day of the subscription license. Late payments may result in the temporary suspension of all users associated with an Account.
(b) Waiver of Right to Cancel. For EU and UK citizens, by placing your order, you acknowledge and agree that you are waiving your right to cancel and return your order within 14 days as provided by the EU rules on online and distance selling. You understand and accept that this waiver is a condition of your purchase and that you will not be entitled to a full refund if you change your mind or are dissatisfied with the product or service you ordered. You further agree that this waiver is irrevocable and binding upon you and your successors and assigns.
Term, Cancellation and Renewal
(a) Auto Renewal: All Subscriptions will be auto renewed based on the duration noted on the Order Form attached.
(c) Renewal dates are based on the date of the first subscription purchased by the user and designated in the Order Form..
Arrivalist reserves the right to terminate any subscription for cause if it detects any inappropriate or unauthorized usage.
One login is associated with the Customer administrator. The Customer administrator is the only user, other than Arrivalist administrators at the request of the Customer, who can add new users, purchase upgrades and assign users.
Named Users and Passwords
Arrivalist shall designate the number of Passwords deployed in the Order Form. Arrivalist shall license one (1) password per User who is an employee of the Customer. Only the User who is registered on a given User Password is permitted to access and use the Software. Customer shall require Users to take appropriate steps to secure their passwords and log-in credentials. Customer may reassign a validly licensed password to another User but may not share or otherwise allow two or more Users per password licensed.
(a) “Confidential Information” means (a) information of either party or its suppliers that is heretofore or hereafter received or accessed by the other party in connection with this Agreement, that contains trade secrets or is otherwise confidential, and that is either identified as confidential when it is disclosed or within 30 days thereafter or should reasonably be understood by the Recipient to be confidential and (b) all software, content, methodologies, deliverables, documentation, Customer and/or user data, network data, and access thereto. “Recipient” means the party receiving information from the other party.
(b) Protection. The Recipient shall protect and keep confidential all Confidential Information received or accessed from the other party, including all copies thereof in Recipient’s possession or control, and all passwords therefor, and shall do so with at least the same degree of care as Recipient protects its own Confidential Information of similar value, but with not less than reasonable care. The Recipient shall use such information only for the purposes of this Agreement and subject to its limitations and restrictions (which, as to the software, content, methodologies, deliverables, and documentation, include the licensing limitations and restrictions). Confidential Information may be disclosed by the Recipient only to its employees, subcontractors, and users, only on a need-to-know basis, and subject to a confidentiality agreement or obligation. The Recipient shall ensure that any person to which Recipient discloses any Confidential Information complies with the confidentiality, licensing limitations and restrictions, and other applicable requirements of this Agreement. In no event may Customer and/or user disclose, or cause to be disclosed, the software, content, methodologies, deliverables, or documentation, or any design or other technical information related thereto, to any competitor of Arrivalist.
(c) Exceptions. A Recipient’s obligations under this Section 15 shall not apply to any part of the Confidential Information that Recipient can document: (1) at the time of disclosure it was generally known to the public or, after such disclosure, became generally known to the public other than by a breach of this Agreement by Recipient; (2) was already in the possession of the Recipient at the time of such disclosure, without an obligation of confidentiality; (3) was later received on a non-confidential basis by Recipient from a third party having the right to impart such information; or (4) is developed by an employee or agent of Recipient who did not have access to the Confidential Information. In addition, those same obligations shall not apply to any part of the Confidential Information that is required to be disclosed by Recipient as a matter of law or by order of a court, governmental agency, or arbitral tribunal of competent jurisdiction, or that is needed to be disclosed in connection with the prosecution or defense of a claim under this Agreement, provided (i) that Recipient provides the other party with reasonable advance notice of the disclosure and (ii) that Recipient takes reasonable and lawful actions requested by the other party and cooperates with the other party to avoid and/or minimize the extent of such disclosure.
LIMITATION OF LIABILITY
(a) ALL INFORMATION AND/OR DATA RECEIVED AND/OR DERIVED FROM USE OF THIS WEBSITE, THE SOFTWARE AND/OR SERVICES RELATED THERETO IS PROVIDED AND/OR CREATED “AS IS”. NOTHING IN THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES PROVIDED THEREIN, NOT IN FACT, CONSTITUTE LEGAL ADVICE IN ANYWAY OR IN ANY FORM AND CUSTOMER HEREBY DISCLAIMS AND WAIVES ANY RELIANCE WHATSOEVER UPON THE SAME.
(b) ARRIVALIST DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS RELATING TO THIS WEBSITE, THE ARRIVALIST PRODUCTS, SOFTWARE, CONTENT, METHODOLOGIES, DELIVERABLES, DOCUMENTATION, AND/OR SERVICES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY, OR OTHER. ARRIVALIST DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY OF DATA AND ITS VALUATION, ACCURACY OF DATA, RELIANCE ON DATA, RELIANCE ON THIRD PARTY SUPPLIED DATA AND/OR FREEDOM FROM VIRUSES. ARRIVALIST DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS ARISING FROM CUSTOM OR TRADE USAGE, FROM COURSE OF DEALING OR PERFORMANCE, OR FROM PROMOTIONAL MATERIALS, PROPOSALS, OR OTHER DESCRIPTIVE LITERATURE. THE SOFTWARE IS NOT CUSTOM SOFTWARE AND ARRIVALIST DOES NOT PROMISE THAT THE SOFTWARE WILL MEET CUSTOMER’S AND/OR USER’S REQUIREMENTS. DUE TO THE INHERENT NATURE OF SOFTWARE, ARRIVALIST DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL SOFTWARE DEFECTS WILL BE CORRECTED.
(c) ARRIVALIST WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY CUSTOMER AND/OR ITS USERS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS WEBSITE, THE SOFTWARE AND/OR THIS AGREEMENT OR RELATED AGREEMENTS IN ANY WAY (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM LOSS OF USE, LOSS OF DATA, COST OF COVER, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF IP RIGHTS, AND, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM DEFECTS IN OR USE OF ANY SOFTWARE, USER REFERENCE GUIDES OR SERVICES OR FROM ANY INACCURATE, INCOMPLETE, OR OUT-OF-DATE ANALYTICS), UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR BREACH OF STATUTORY DUTY), EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
(d) AT NO TIME SHALL THE CUMULATIVE LIABILITY OF ARRIVALIST FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY CUSTOMER AND/OR USER’S USE OF THIS WEBSITE AND/OR THE ARRIVALIST SOFTWARE IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ARRIVALIST BY THE USER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM.
Misuse of Abuse of Data
(a) Access or scrapping of Arrivalist and associated product databases in an automated manner is not permitted absent written permission from Arrivalist as part of an explicit scrapping Agreement. The Data from this site may not be directly or indirectly copied, disassembled, resold or redistributed in any manner. Arrivalist reserves the right to take any and all action for violation of this agreement, including but not limited to, banning from the site, as well as any and all legal action afforded Arrivalist in law or in equity.
(b) Arrivalist reserves the right to ban users from this site, whether using automated means or not, if, in Arrivalist’s sole opinion, they are abusing the Arrivalist data or database.
(c) All users of the Arrivalist and associated products’ websites and software must comply fully with all applicable laws, statutes, ordinances, rules and regulations, and agree not to use our web site or software to facilitate collusion or for any other conduct violating any applicable laws, statutes, rules and regulations.
Each party agrees for itself and its affiliates that, without the prior written consent of the other party, it shall at no time during the Term or for a period of six months after the end of the Agreement thereafter solicit, make any offer to hire, hire, or enter into any employment, consulting, or other arrangement with, any individual engaged by the other party or its affiliates as an employee or consultant at any time during the term in which Customer and/or user uses Arrivalist products or services.
Any notice, election, request, consent, approval, or waiver required or permitted by the terms of this Agreement shall be sufficient if in writing and delivered personally, or sent by telephonic facsimile machine, delivery confirmation required, or sent by commercial delivery service with fees paid by sender, delivery confirmation required, or by certified or registered mail with postage fully prepaid, return receipt requested or delivery confirmation required, and in each case if delivered or addressed as follows:
If to Arrivalist, then to:
Chief Operations Officer, Arrivalist Co.
If to Customer or user, then to the billing address on your invoice. accompanying any purchase. With a copy to:
General Counsel Arrivalist Co.
Either party may change the address or facsimile phone number to which notices, elections, requests, consents, approvals, and waivers may be sent to it by giving written notice to the other party in the manner provided in this Section.
Governing Law; Arbitration/Litigation
This Agreement shall be governed by and construed under the laws of the State of Colorado, without regard to its conflict of laws principles. All claims, disputes or causes of action under $10,000 USD between us relating to or arising from this Agreement and/or the UCGP shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which must be commenced within one (1) year after such claim, dispute or cause of action arises. The arbitration shall be conducted in Denver, Colorado, and the Federal Arbitration Act, and not any state law concerning arbitration, shall apply. The arbitration award shall be final and exclusive, and the prevailing party in the arbitration may file an action in court to confirm and to enforce the arbitration award. Any such action, or any claim exceeding $10,000 USD, cause of action or proceeding not subject to arbitration as set forth in this Section, shall be filed and adjudicated in a state or federal court in Denver, Colorado, and all parties agree to submit to the personal jurisdiction of those courts. You irrevocably waive any rights to seek and/or obtain injunctive or other equitable relief and any defense of forum non conveniens. Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses and attorneys’ fees incurred as a result of such action. Further, any and all disputes, claims and causes of action arising out of or connected with this Agreement and/or the UCGP, will be resolved individually, without resort to any form of class action.
All suits arising out of or in connection with this Agreement shall be brought solely in (a) the State of Colorado if Customer and/or user has an office in the Americas or (b) in Barcelona Province, Spain if Customer and/or user does not have an office in the Americas. In case (a), the parties hereby submit to the jurisdiction of any United States federal court sitting in Denver or, if such court does not accept jurisdiction, a Colorado state court sitting in Denver. In case (b), the parties hereby submit to the jurisdiction of any court of competent jurisdiction sitting in Barcelona Province, Spain. Excepted from both cases (a) and (b) are actions to enforce a judgment or an arbitral award or for injunctive relief, which may be filed in any court of competent jurisdiction.
If either party breaches, or attempts or threatens to breach, the confidentiality, license restrictions or limitations, ownership, or non-solicitation provisions of this Agreement, the other party to this Agreement shall be entitled to an injunction against the breaching party. Nothing herein precludes the other party from pursuing any other remedies available hereunder or at law or equity for such breach, including the recovery of damages.
Customer and/or user shall comply fully with all applicable export laws and regulations of the United States and any other relevant jurisdiction (“Export Laws”) to assure that the Software, Content, Data Methodologies, Documentation, any Deliverables, and any direct product of them are not (a) exported, directly or indirectly, in violation of the Export Laws or (b) used for any purpose prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer and/or user shall comply with any regulations or registration procedures required by applicable law to make this Agreement enforceable. The licenses granted to Customer and/or user are subject to Customer and/or user’s compliance with this Section.
The official language of this Website and Agreement is English. All reports and written communications between the parties shall be in English.
Entire Agreement; Amendments
This Agreement constitutes the entire, final, and complete agreement between the parties hereto relevant to the subject matter hereof. It supersedes and replaces all prior and contemporaneous agreements, promises, proposals, offers, understandings, representations, warranties, descriptions, promotional materials, and other communications whatsoever, whether written or oral, express or implied, relevant to the subject matter hereof, whether between the parties or their representatives or otherwise. Without limitation, the terms of this Agreement and the applicable Order Form shall supersede the terms of any Customer and/or user purchase order or other ordering document.
Any provision of this Agreement may be waived only by a written instrument that expressly grants the waiver and is signed by a duly authorized representative of the granting party. Unless otherwise expressly provided in the waiver, it shall operate only as to the single instance giving rise to the waiver.
If any provision in this Agreement shall be held by a court or arbitral tribunal of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and the offending provision shall remain in effect as far as possible in accordance with the intention of the parties. However, if the Agreement, as so reformed, substantially alters the basis of the bargain between the parties, it shall be deemed terminated.
The rights and liabilities of the parties will bind and inure to the benefit of their respective permitted assigns, successors, and legal representatives. This Agreement is personal to the Customer and/or user. Accordingly, Customer and/or user shall not assign or transfer its license or rights or delegate its obligations under this Agreement, in whole or in part, directly or indirectly, including by contract, merger, consolidation, operation of law, Change of Control, or any other means. However, Customer and/or user may assign or transfer this Agreement in whole to any entity that acquires all or substantially all of its stock or other equity interests or all or substantially all of its business and assets, provided that (a) it has obtained Arrivalist’s prior written consent, which shall not be unreasonably withheld, delayed, or conditioned, (b) the acquiring entity is not a Competitor of Arrivalist, and (c) the acquiring entity agrees in writing to be bound by this Agreement. Arrivalist may assign or transfer this Agreement (and shall give notice thereof to Customer and/or user), may assign its right to payment of any amount that comes due hereunder, and may engage providers to assist it in the performance of this Agreement. No assignment or transfer by either party will release the assignor or transferor from any liability hereunder without the other party’s written agreement. Any attempted assignment or transfer in violation hereof will be void. “Change of Control” of an entity means a change of more than 50% in the beneficial ownership (as defined in Rule 13d-3 under the U.S. Securities Exchange Act of 1934) of the entity’s voting stock (or other voting equity interests) or, within any 12-month period, in the composition of its board of directors (or other governing body).
Supplemental Unique Definitions and Customers Obligations For Arrivalist Products
Obligations of Customer for Lodging and Travel Products Customer shall:
- Provide Arrivalist with Necessary Information:. Customer will make Arrivalist aware of desired Arrival Zones, Points of Interest, measurement definitions and other relevant information. If attribution services are being provided, then Customer shall also make Arrivalist aware of media plans, impression volume, media partners and other relevant campaign information.
- Payment. Unless otherwise provided in the Order Form, pay all setup fees upon execution of this Agreement within thirty (30) days of the invoice date. In the event Appendices provide for third party media purchases by Arrivalist on behalf of Customer, such third-party media shall be pre-paid by Customer.
Obligations of Customer for Attribution Products: the following Customer obligations apply:
- Embed Arrivalist Pixels in Media. Customer will make best efforts to place Arrivalist pixels and impression tracking code on all its owned and paid media that Customer will utilize in connection with the Arrivalist Technology and do so in a timely manner. Customer agrees to notify Arrivalist of any instances where pixels or impression tracking code may not be deployed as well.
- Placement of Arrivalist Pixels or Scripts on Customer Site(s). Allow Arrivalist to place tracking pixels or scripts on pages on Customer’s site(s) so that the Arrivalist Technology may identify Internet users who have been exposed to or have interacted with Customer online advertising. Placement of Arrivalist’s pixels/scripts shall not be unreasonably delayed.
- Supplemental Definitions for Media sites and Arrivalist Attribution Products: Arrivalist defines measurable media as sites, platforms and devices that accept our 3rd party pixel technology or pass back device and ad ID information for measurement purposes. The Arrivalist pixel and or device/ad ID is widely accepted across most media platforms, however there are few platforms that tend to be challenging amongst the measurement industry and require extensive approval and integration. Please see the list below for your reference:
- Facebook / Instagram
- Snap, Inc
- Google Ad Words, Search, Display (limited)
Additionally Device ID-based measurement of Connected TV and Out-of-home placements can be provided at an additional cost during the term, with the following stipulations: each media partner will agree to pass complete log files, per Arrivalist’s format and according to Arrivalist’s delivery timelines, with full device ID information; each partner will agree to Arrivalist’s data agreement, which governs the passing of information between the parties. Arrivalist does not guarantee statistically significant lift results. A minimum of 25 MM pixeled impression in a 12-month period is suggested for a viable program. Customer understands that this is a custom project that will require special handling and a distinct timeline to be outlined outside of this agreement.