Archipelago Analytics, Inc. (“Archipelago,” “Company,” “we,” “us”) offers a Software as a Service(SaaS) platform which, among other things, digitizes risk information for analytics and use in insurance placements (collectively, the “Service”),and websites including but not limited to www.onarchipelago.com (collectively, the “Website(s)”). These Terms of Use (“Terms of Use”) create a legal agreement directly between you (“you,” or “user”) and Archipelago and explains the rules governing use of the Service and Websites.

By accessing or using the Service and/or the Websites, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms of Use and by the terms of our Privacy Policy. If you do not agree to these Terms of Use and/or to our Privacy Policy, please do not access or use the Service or the Websites.

We may, from time to time, modify these Terms of Use. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Terms of Use, you must stop using the Service and the Websites. The updated Terms of Use will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you. Your continued use of the Service and/or the Websites after any such update constitutes your acceptance of such changes.

1. ELIGIBILITY AND USER TYPE

1.1 General. To use the Service and Websites you must be, and represent and warrant that you are, at least 13 years of age and competent to agree to these Terms of Use. If Company has previously prohibited you from accessing or using the Service or Websites, you are not permitted to access or use the Service or Websites.

1.2 User Type. Users referred to in these Terms of Use include individuals who access any of the Websites and/or engage with the Service, either as (a) a sole individual or direct customer of Company, or (b) as a user authorized to access and use the Service by a customer of Company (an “Authorized User”). For purposes hereof, all of the foregoing are referred to herein collectively as “users,” and customers of Company are referred to as “Customers.”

1.2 Customer’s Choices and Instructions. If you are an Authorized User, it means you have been authorized to access and use the Service by a Customer that has separately agreed to our Terms of Use or entered into a written agreement with Company (in either case, the “Contract”) that permits Customer to access and use the Service and to authorize you and others to access and use the Service. In such case, when you submit User Content (defined in Section 4 below) to the Service, you acknowledge and agree that such User Content is owned by Customer and that the Contract provides Customer with various choices and control over that User Content. For example, Customer may provision or deprovision access to the Service, enable or disable third party integrations, and manage permissions and settings, and these choices and instructions may result in the access, use, disclosure, modification, or deletion of certain or all User Content. As an Authorized User, you also acknowledge and agree to the following:

AS BETWEEN COMPANY AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A)INFORM YOU AND ITS OTHER AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF USER CONTENT; (B)OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ITS OTHER AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF USER CONTENT AND THE OPERATION OF THESERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF USER CONTENT UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ITS OTHER AUTHORIZED USERS RELATING TO OR BASED ON USER CONTENT, THE SERVICE OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICE WHICH IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.

2. ACCOUNT REGISTRATION AND USE

2.1 Account Registration and Confidentiality. To access the Service and, as applicable, all or portions of the Websites, you must register for an Company account by creating a username and password and as otherwise required therein. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a Customer (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the Customer and agree that Company is entitled to rely on your instructions.

2.2 Unauthorized Account Use. You are responsible for notifying us at legal@onarchipelago.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Company will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Company or a third party due to someone else using your account.  In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, Company reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.

3. PROPRIETARY RIGHTS

3.1 Company Proprietary Rights. The Service, the Websites, and all materials contained therein (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork, and other graphic materials, and names, logos, trademarks and services marks) or derived (in whole or in part) there from, are, as between Company and you, owned by Company and/or its Affiliates, including ownership of all intellectual property rights therein and are protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service and the Websites are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service and/or the Websites. You acknowledge that the Service and the Websites have been developed, compiled, prepared, revised, selected, and arranged by Company and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Company and such others. You agree to protect the proprietary rights of Company and all others having rights in the Service and the Websites during and after the term of these Terms of Use and to comply with all written requests made by Company or its suppliers and licensors of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Service and the Websites. For purposes hereof, the term “Affiliate” means an entity controlled by, controlling, or under common control with Company.

3.2 Trademarks. Archipelago, Onarchipelago, Archipelago Analytics, and the Archipelago logo are trademarks of Archipelago. “Archipelago Trademarks” means the foregoing, as well as all other names, marks, brands, logos, designs, trade dress, slogans and other designations Archipelago uses in connection with its products and services. You may not remove or alter any Archipelago Trademarks, or co-brand your own products or material with Archipelago Trademarks, without Archipelago’s prior written consent. You acknowledge Archipelago’s rights in Archipelago Trademarks and agree that any use of Archipelago Trademarks by you shall inure to Archipelago’s sole benefit. You agree not to incorporate any Archipelago Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies. All other brands and names used on this Website may be trademarks, registered trademarks, or service marks of their respective owners.

3.3 You agree to notify Company immediately upon becoming aware of any claim that the Service or the Websites infringes upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service and the Websites shall, as between you and Company, at all times be and remain the sole and exclusive property of Company. Any unauthorized use of any material contained on or through the Service or the Websites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

4. USER CONTENT AND FEEDBACK

4.1 User Content; License to Company. The Service allows you to submit information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. As between Customer, on the one hand, and any Authorized Users on the other, Customer owns all User Content. Customer (for itself and all of its Authorized Users) hereby grants to Company and its Affiliates a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export, display, reproduce, adapt, publish, transmit, and display User Content subject to the terms and conditions of the applicable Contract, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; and (c) as expressly permitted in writing by Customer or user, as applicable. Customer represents and warrants that it has secured all rights in and to User Content from its Authorized Users as may be necessary to grant this license. All other users hereby grant to Company and its Affiliates a license to access, use, process, copy, distribute, perform, export, display, reproduce, adapt, publish, transmit, and display User Content, as permitted by Company’s Privacy Policy and as otherwise required by law or to otherwise to comply in good faith with legal process. Company reserves the right to remove from the Service or any Website any User Content that violates these Terms of User or that is otherwise objectionable in Company’s sole discretion.

4.2 Feedback. The Service and the Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to Company and share such Feedback with other users, or the public. By submitting such Feedback, you grant Company and its Affiliates a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other Company marketing materials and where required to do so by law or in good faith to comply with legal process.). Company reserves the right to remove any Feedback posted in public forums for any reason at our sole discretion.

4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that Company does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Company and its Affiliates for all claims resulting from User Content and/or Feedback you submit through the Service or the Websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

5. LICENSE AND ACCEPTABLE USE

5.1 License. Subject to your compliance with these Terms of Use, including but not limited to the Acceptable Use terms below, we grant you a non-sublicensable, non-transferable, non-exclusive, limited license to access and use the object code version of the Service and/or Websites solely for your own internal use as necessary to use the Service and/or Websites and otherwise in accordance with these User Terms and, to the extent applicable, the Contract, and only in a manner that complies with all legal requirements that apply to you or your use of the Service and the Websites. Company may revoke this license at any time, in its sole discretion. Company reserves all rights not expressly granted under these Terms of Use, and no other rights are granted under these Terms of Use by implication or otherwise.

5.2 Acceptable Use. You must at all times comply with the following rules regarding acceptable use of the Service and the Websites, including but not limited to the following rules regarding disruption of the Service, misuse of the Service and Websites, and User Content standards within the Service and Websites.

You may not:

• access, tamper with, or use non-public areas of the Service or the Websites, Company’s computer systems, or the technical delivery systems of Company’s providers;
• probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
• accessor search the Service or the Websites by any means other than Company’s publicly supported interfaces (for example, “scraping”);
• attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
• interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Service or the Websites.

You may not utilize the Service or the Websites to carry out, promote, or support:

• any unlawful or fraudulent activities;
• the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
• activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
• the publishing or posting of other people’s private or personal information without their express authorization and permission;
• the sending of unsolicited communications, promotions advertisements, or spam;
• the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
• the promotion or advertisement of products or services other than your own without appropriate authorization.

You may not post any content on the Service or the Websites that:

• violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
• is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
• contains any personal information of minors;
• contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without Company’s prior written consent granted as part of a Customer Agreement;
• contains viruses, bots, worms, or similar harmful materials; or
• contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.

In addition to any other remedies that may be available to us, Company reserves the right to take any remedial action it deems necessary, including but not limited to immediately suspending or terminating your access to the Service and the Websites without notice should you fail to abide by the rules in this Section.

6. PRIVACY

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms of Use.

7. THIRD-PARTY LINKS AND WEBSITES

The Service and the Websites may provide information and content provided by third parties; links to third-party websites or resources, such as sellers of goods and services; and third-party products and services for sale directly to you. Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

8. DISCLAIMERS; LIMITATION OF LIABILITY

THE SERVICE AND THE WEBSITES AND INFORMATION CONTAINED THEREIN, WHETHER PROVIDED BY COMPANY, ITS AFFILIATES, LICENSORS, SUPPLIERS, ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE OR THE WEBSITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR THE WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE OR THE WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE OR THE WEBSITES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, COMPANY’S AGGREGATE LIABILITY WILL NOT EXCEED $100. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR THE WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE OR THE WEBSITES, AND NEITHER COMPANY NOR ITS AFFILIATES WILL BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR WEBSITES. COMPANY WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.  

If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above. Accordingly, some of the above limitations may not apply to you. If you are a resident of a state that permits the exclusion of these warranties and liabilities, then the limitations in this Section specifically do apply to you.

9. INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, CONTRACTORS, AND REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICE OR THE WEBSITES, YOUR VIOLATION OF THESE TERMS OR OF COMPANY’S PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF FEEDBACK TO THE SERVICE OR THE WEBSITES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER INDIVIDUAL OR ENTITY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

10. MODIFICATION

Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and/or the Websites (or any part thereof), with or without notice. You agree that Company shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Service and Websites.

11. GENERAL TERMS

11.1 Entire Agreement; Order of Precedence. The Terms of Use, including any terms incorporated by reference into the Terms of Use, constitute the entire agreement between you and us and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in these Terms of Use and any terms incorporated by reference herein (e.g. the Privacy Policy),the terms of these Terms of Use will first prevail; provided, however, that if there is a conflict or inconsistency between these Terms of Use and an applicable Contract, the terms of the Contract will first prevail, followed by the provisions in these Terms of Use, and then followed by the terms incorporated by reference herein (e.g. the Privacy Policy). The Customer will be responsible for notifying its Authorized Users of those conflicts or inconsistencies and until such time the terms set forth herein will be binding.

11.2 Governing law; Venue. These Terms of Use, and any disputes arising out of or related hereto, will be governed exclusively by the laws of California without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in San Francisco, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Terms of Use or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts.

11.3 No Waiver. No waiver of any provision of these Terms of Use will be binding unless in writing, no waiver of any provisions of these Terms of Use will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Company to exercise or enforce any right or remedy in these Terms of Use does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms of Use to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use will remain in full force and effect.

11.4 Statute of Limitations. To the maximum extent permitted under applicable law, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service and Websites and/or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.

11.5 Force Majeure. Under no circumstances shall Company, its Affiliates, licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.

11.6 Survival. The sections titled “Proprietary Rights,” “User Content and Feedback,” “Disclaimer; Limitation of Liability,” “Indemnity,” and all of the provisions under the general heading “General Terms” will survive any expiration or termination of these Terms of Use.

11.7 Miscellaneous. These Terms of Use, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms of Use, and any rights or licenses granted hereunder, may be assigned or delegated by Company without restriction. These Terms of Use bind and inure to the benefit of each party and the party’s successors and permitted assigns. There are no third party beneficiaries to these Terms of Use except as expressly stated herein. These Terms of Use may not be modified by an oral statement by a representative of Company. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms of Use. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Service and Websites for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. Headings used in these Terms of Use are for convenience only and are not intended to, nor shall they, have any legal or contractual effect.

11.8 Notices. We may deliver notice to you by e-mail, posting a notice on the Service or the Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: legal@onarchipelago.com.

12. QUESTIONS

If you have any questions about these Terms of Use, please contact us at legal@onarchipelago.com.