Terms of Service

The Terms of Service for Arcade Services made effective as of October 7th, 2025 between the Customer (“Customer” or “you”) and Arcade Solutions Inc., located at 10228 E Northwest Hwy, Unit #352, Dallas, TX 75238 (“Arcade”), and governs the terms of use of the Arcade Services. By agreeing to access the Services, Customer agrees to be subject to the terms and conditions of this Agreement and shall become an integral part hereof upon its execution by Arcade and Customer. No Service is binding on either party until fully executed by authorized representatives of both Arcade and Customer. Arcade and Customer may individually be referred to herein as a “party” or together as the “parties”. 

Each Authorized User of Customer must agree to Arcade's End User License Agreement (“EULA”) to use the Services as an End User of the Service (defined in the EULA); provided, however, as to Customer, in the event of any discrepancies or inconsistencies between the provisions of this Agreement and the EULA, the provisions of this Agreement shall prevail, unless otherwise expressly agreed in a separate Service Order, which makes reference to the specific section number(s) of this Agreement to be affected. In no event shall any Service Order amend, change or otherwise alter any of the terms and conditions set forth in this Agreement other than as set forth above with respect solely to the Arcade Services to be rendered pursuant to such Service Order. 

Under these terms, Arcade agrees to provide access to software as a service known as Arcade Unlimited and all products selected in the applicable Service Order (collectively the “Services”), which involves gamifying sales goals, communicating with, rewarding and recognizing employees (Customer’s Authorized Users) to increase workforce productivity and engagement for Customer.

Definitions

Account - An account specific to you, your use of the Services, or an Authorized User’s use of the Services, as applicable, accessed by User Identification. 

Authorized Users - Your employees, agents and independent contractors who you authorize to use the Services as permitted under this Agreement, the Documentation, for whom subscription to the Services have been ordered, and who have been supplied User Identifications. Any Authorized User under Customer in this Agreement shall agree to Arcades EULA as an End User thereunder. 

Business Day - A business day, which excludes weekends and public holidays in the State.

Claim - A claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Consequential Loss - Any special, indirect, incidental, consequential or economic loss (including loss of profits, revenue, savings, opportunity or goodwill), even if the possibility of such a loss being suffered has been brought to the attention of the relevant party.

Content - All forms of information, including text, voice, pictures, animations, video, sound recordings, software, separately or combined, sent and received across a network.

Device - Any hardware used to access our Service.

Documentation - The user manual and/or other written materials provided by Arcade in relation to the Services and Software functionalities and use instructions.

Enhancements - New releases and updates of the Service generally made available by us containing new features or functions of performance.

Fee - The fee payable in U.S. dollars (USD) for a License to access the Service or as agreed between Customer and Arcade in an applicable Service Order.

Government Agency - A government or governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

Intellectual Property - All Intellectual Property Rights in or relating to the Service, including all programming and software elements, any derivative works and all of our copyrights, trademarks or any other identifying characteristics used in relation to the Services.

Intellectual Property Rights - All statutory and other proprietary rights in respect of all intellectual or industrial property including all trademarks, patents, copyright, confidential information and all other intellectual property as defined by Article 2 of the Convention Establishing the World Intellectual Property Organization of July 1967 and the right to register them.

License – the license defined in Section 1 to this Agreement. 

Loss - Damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and includes Consequential Loss.

Personal Information - Information or an opinion (including information or an opinion forming part of a database), whether true or not and whether included in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Privacy Policy - The Arcade Solutions privacy policy as amended from time to time which can be accessed at https://www.arcade.co/privacy

Service - The software as a service consisting of a system and application provided by Arcade and any Updates or Enhancements to it, which is accessed by a web browser or application on an Authorized User’s Device, and includes web enabled Support, management and monitoring of the software and the capture and tracking of User Information uploaded from Devices.

Site - www.arcade.co and all subdomains including but not limited to Manage.ArcadeHub.co, App.ArcadeHub.co, PlayArcade.co, Blackboard.ArcadeHub.co, Live.ArcadeHub.co and Signup.Arcade.co.

Specifications - The specifications noted on the Site or in the Documentation about the Service. State means the State of Texas, United States.

Support - If support support specified in Exhibit B which we provide you in relation to the Service during the term of your License.

Tax - Any tax, levy, charge, impost, fee, deduction, value added tax or withholding tax that is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of any of the above.

Token - A digital, non-monetary unit of value awarded to Authorized Users within the Service, which may be redeemable for rewards as determined by the Customer. Tokens hold no cash value until redeemed through the Service.

Updates - Updates of the Service generally made available by Arcade containing correction of reported bugs, defects or errors, or which constitute a change, amendment or modification to the Service but which do not materially affect existing functionality.

User Identification - The unique username and password issued or otherwise assigned by us to an Arcade Customer and its Authorized Users for access to and use of the Service.

User Information - Any Personal Information, financial details and such other information of a person, company or other entity who provides such information for use of or in using the Services.

You or your – the Customer identified in the Service Order.

Your Content -Any Content (including User Information and other data) you: - (a) run on our Service; - (b) cause to interface with our Service; or - (c) upload to our Service under Account or otherwise transfer, process, use or store in connection with your Account.

We or us or our - Arcade Solutions, Inc.

1. The License

1.1 The License

Subject to and conditioned upon Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Arcade grants the Customer a revocable, non-transferable, non-exclusive, non-sublicensable, worldwide right for use of the Services during the Term for Customer’s internal use (the “License”).

This Agreement grants all right, title, or interest in or to any intellectual property rights in or relating to, the Services, Arcade materials, processes, systems, data, and any feedback derived from Customer’s or its Authorized User’s use of the Service to Arcade. Such Intellectual Property Rights and materials shall remain with Arcade and its respective third-party service providers. 

1.2 Customer Use, Access and License

​Arcade grants Customer the License to access and use of the Services during the License Term, solely for use under the terms of this Agreement. By accessing Services, Customer agrees to the terms of this Agreement and any other documents executed between the parties and incorporated into this Agreement by reference.

By using our Service, Customer shall not:

  1. use the Services in any way to monitor or evaluate the availability, performance or functionality of the Services for any competitive purpose, or perform or assist any other party to perform any benchmarking on the Services;
  2. use the Services for any illegal purpose, or in violation of any local, state, national, or international law;
  3. copy any portion of the Services, except as expressly permitted by this License;
  4. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services;
  5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
  6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
  7. rent, lease, lend, sell, sublicense otherwise make available the Services, or any features or functionality of the Services, to any third party for any commercial reason, including by making the Site available on a network where it is capable of being accessed by more than one device at any time;
  8. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
  9. directly or indirectly take any action that imposes or may impose (as determined by Arcade in its sole discretion) an unreasonable or disproportionately large load on Arcade or its third-party providers’ infrastructure; interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; run Mail list, Listserv, or any form of auto-responder or “spam” on the Services; or use manual or automated software, devices, or other processes to scrape any page of the Services; or
  10. create a false identity on the Services, misrepresent your identity, impersonate any person, create a profile for anyone other than you, or use or attempt to use another account.

1.3 Commencement and Term.

a) The duration of a License for Arcade Services shall commence on the Effective Date and shall continue for the length of time set forth in such Service Order (the "Initial Term"). Once signed by both parties, Services shall be non-cancellable, except as otherwise explicitly stated in such Service Orders or as set forth in this Agreement under Section 2.

(b) The Term of the Arcade Services procured by the Customer shall continue for the Term specified in the applicable Service Order. Thereafter, the applicable Services shall be automatically renewed for successive renewal term(s) of twelve (12) months each (each a “Renewal Term”), unless and until either party provides written notice of non-renewal to the other party at least thirty (30) days before the expiration of the then-current Services term. The duration of the License, including the Initial Term and any Renewal Terms, is referred to herein as the “Term.”

1.4 Onboarding and Support

(a) Arcade will set up the Service for the Customer, provide onboarding Support, and take all reasonable measures to ensure all performance data is securely updated in the Service through integration unless otherwise stated per product level description throughout the Term.

1.5 Fees and Payment

(a) All Fees for the Service shall be set forth in the applicable Service Order and are payable and due upon receipt of an invoice from Arcade unless otherwise specified. All Fees are non-refundable, this includes any amounts provided by Customer for Authorized Users to use Tokens, and any Tokens an Authorized User may leave on their Account at the time of termination or expiration of this Agreement.

​(b) Fees will begin on the Effective Date of this Agreement unless otherwise specified in the Service Order above, or a separate Service Order under special terms.

(c) The Customer may upgrade their Service for access to additional functionality at any time during the Term of this Agreement subject to additional terms set by Arcade.

(d) Pricing for subsequent Renewal Term(s) shall be set at the then current Arcade pricing unless otherwise agreed to in writing by the parties.

(e) At the discretion of Arcade, use of Tokens and Data Connectors may be withheld until full payment is received from the Customer. In addition to the payment for Service, Customer shall be responsible for ensuring the amount of money available for Authorized Users to cash out their Tokens is in Customer’s Account at all times. All amounts payable to Arcade under this Agreement shall be paid by Customer to Arcade in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

(f) Taxes. Unless otherwise set forth on the applicable Service Order, Arcade Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (”Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Arcade’s net income. If Arcade has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Arcade with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is and shall be responsible for paying all Taxes related to its business and its employment, contractor, and agency relationships, including with any Authorized User that uses the Service hereunder. 

(g) For the avoidance of doubt, Arcade is not responsible for paying any employees, contractors, agents, or any other party engaged by Customer for services performed by Authorized Users for Customer, whether through an employment, contractor, agency or joint venture relationship. This includes but is not limited to commissions, royalties, equity, bonuses, benefits, or any amount in value. It is the sole option of Customer to use the Service for convenience if Customer wishes to offer Authorized Users access to the Service. Arcade shall  not be obligated to return any amount of Tokens for an Authorized User which is no longer employed or engaged by Customer. 

(h) If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Arcade may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law.

1.6 Account

(a) To access the Service, Arcade will create an account for Customer that will be associated with the Customer's unique email address (the "Account").

(b) Arcade will issue the Customer access and use to the Service as permitted herein. The Customer is solely responsible for ensuring the security and confidentiality of access credentials to the Service.

(c) The Customer is responsible for providing, installing, and maintaining all equipment and facilities necessary to enable the Service.

(d) Any transaction conducted by the Customer on the Account shall be deemed to have been performed by the Customer and Arcade is not liable for any unauthorized access to your Account (provided, however, Customer will not be liable for any unauthorized access to the Customer’s Account if the Customer has notified Arcade with at least forty-eight (48) hours advanced notice of any loss, theft or unauthorized use of any user identifications or user passwords), excluding transactions or access that results from any negligent or willful act or omission on Arcade's part. Use of the Account contrary to the provisions of this Agreement and resulting from the Customers failure to adequately protect and secure such information will be considered a breach of this Agreement by you.

(e) Account Inactivity. Any Authorized User Account that has been inactive, defined as the Authorized User not logging in, for ninety (90) consecutive days, may be automatically locked. Customer's designated administrators retain the ability to reactivate a locked account for an Authorized User at any time.

(f) Token Expiration on Locked Accounts.  Any Authorized User Account that has been locked shall not have a right to unused amounts, whether in cash, Tokens, or otherwise, upon the lock date of their account.

1.7 Token Management

(a) Administrator-Initiated Reversals. Customer, through its designated administrators (e.g., Company Managers, Team Managers), shall have the exclusive right to initiate a reversal of any Token distribution to an Authorized User's wallet.

(b) Reversal Period. The right to initiate a Token reversal is strictly limited to a thirty (30) day window ("Reversal Period"). The Reversal Period commences at the time and date that the Tokens are distributed to the Authorized User's wallet.

(c) Finality of Distribution. Upon the expiration of the 30-day Reversal Period, the Token distribution shall be considered final, conclusive, and irreversible. After this period, no reversals may be performed for any reason, including the termination of an Authorized User's employment or engagement with Customer. Customer agrees it is solely responsible for processing any necessary Token reversals for departing personnel as part of its standard offboarding procedures within this window, clarifying the process related to the obligation noted in Section 1.5(g).

(d) Non-Token Expiration on Active Accounts. The Reversal Period defined herein applies only to an administrator's ability to perform a reversal and does not constitute an expiration date for Tokens held by an Authorized User. Subject to the terms of this Agreement, an active Authorized User may redeem any Tokens present in their wallet at any time, regardless of the original distribution date..

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2. Termination

2.1. This Agreement shall commence as of the Effective Date and will continue for as long as there is an active Service Order that refers to it (including renewals pursuant to Section 1). This Agreement is non-cancelable during the applicable Term provided that either party may immediately terminate this Agreement or all active Service Orders if:

(a) the other party fails to cure a material breach of the Agreement within ten (10) days of written notice from the non-breaching party. For the purpose of clarity, non-payment of past due invoices is deemed a material breach; or

(b) the other Party is involved in insolvency, receivership, bankruptcy proceedings, or makes an assignment for the benefit of creditors. Termination or suspension of this Agreement shall cause the termination or suspension, as the case may be, of any active Services.

2.2. Notwithstanding Section 2.1(a), Arcade shall have the right, at its sole discretion, to immediately terminate or suspend the Service and/or terminate the Agreement and any Service Order without a cure period, if it determines that Customer or any person using the Services through Customer’s Account, including any Authorized User, has violated the provisions of Sections 1 or 2 in a manner that cannot be cured. Suspension of an Account shall not result in an extension of the Term.

2.3. In addition to any other damages it may be entitled to under law, should either party or any person using the Services through Customer’s Account breach any material term of this Agreement, the other party shall have a right to injunctive relief and its attorneys’ fees and court costs required to address the breach.

2.4. Upon termination or expiration of this Agreement, Customer and its Authorized Users shall have no further right to access or use the Services in any manner.

2.5. Except as set forth in Section 2.1 above, any prepaid reward purchases by the Customer that are unused at the end of the License Term specified, shall be forfeited. Customer nor any of its Authorized Users shall have a right to unused amounts, whether in cash, Tokens, or otherwise, upon the termination or expiration of this Agreement. 

2.6. Notwithstanding the provisions of any non-disclosure or confidentiality agreement between the parties, upon termination or expiration of this Agreement, Arcade shall be entitled to retain one copy of any confidential information provided by Customer purely for archival purposes.

2.7. The provisions of Sections 1.6, 2.3, 2.4, 2.5, 2.6, 3, 4, and 5 shall survive termination or expiration of this Agreement.

3. Our Privacy Obligations

3.1. You acknowledge we collect and handle all Personal Information about you or contained in Your Content in accordance with our Privacy Policy (https://www.iubenda.com/privacy-policy/19963067), and we will comply in all respects with any limitations or restrictions on disclosure or use of Personal Information received by us as set forth in such Privacy Policy.

3.2. License of your Content: You give us a non-exclusive, worldwide, royalty-free and revocable License to copy, use and analyze your Content for creating statistics and determining trends of such items as retention rates and user analyzes which may then be used by us as we see fit, provided such output and analyzes will be anonymous and aggregated and will not contain personal information (“Resultant Data”). Further, you give us all right, title or interest in or two any Intellectual Property Rights in or relating to any, in any form or medium, information, material, concept, idea, subject matter, invention, improvement, discovery, method, development, works, derivative, enhancement, modification, or similar of the Service received, derived, created, made, conceived, or reduced to practice, directly or indirectly, from Customer’s and / or an Authorized User’s use thereof (“Feedback”). 

4. Confidentiality

4.1. A party (the “Receiving Party”) may receive information from the other party (the “Disclosing Party”) which is confidential or proprietary in nature and clearly marked as “confidential” or “proprietary” information or understood by its nature to be confidential and/or proprietary, including without limitation, the customer lists, the contents of this Agreement, research, development or business plans, customer and vendor information, operations, systems, policies, procedures, practices, data, methods, and/or other business and financial information (“Confidential Information”). The Receiving Party agrees that, during the Term of this Agreement and until one of the exceptions of Section 4.2 applies, it will keep each item of Confidential Information in the strictest confidence and protect such Confidential Information by similar security measures as it takes to protect its own Confidential Information of a similar nature, but in no event shall the Receiving Party take less than reasonable care with the Confidential Information of the Disclosing Party. The Receiving Party also agrees that it will not use any Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement.

4.2. The term “Confidential Information” shall not include information which is or becomes generally available to the public without breach of this Agreement, was in the possession of the Receiving Party prior to its disclosure by the Disclosing Party, is made available to the Receiving Party from a third party not in breach of any obligations of confidentiality, is independently developed by the Receiving Party, or is required to be disclosed by the Receiving Party pursuant to law, rule, regulation, subpoena or court order.

4.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:  

  1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; 
  2. except as may be permitted by and subject to its compliance with this Agreement, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section;
  3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; 
  4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and 
  5. ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this section.
  6. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this section with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its representatives.

4.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this section; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. 

5. Representations, Warranties, and Disclaimer 

Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with this Agreement; and (d) it will comply with all applicable laws and regulations in its performance of this Agreement.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, ALL SERVICES AND ARCADE MATERIALS ARE PROVIDED “AS IS.” ARCADE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ARCADE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS OR SERVICES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS AND SERVICES. 

6. Indemnification and Limitation of Liability

Customer shall indemnify, defend, and hold harmless Arcade, its officers, directors, employees, agents, contractors and affiliates from and against any Loss or Claim brought against Arcade or an indemnified party listed herein arising out of or relating to (i) where such Loss or liability was caused by a breach of your obligations under this Agreement; (ii) where such Loss or liability was caused by any willful, unlawful or negligent act or omission by you; and (iii) any employment relationship, any employment- or engagement-related Claims by Authorized Users or Customer, including but not limited to payment or revocation of any Tokens or other amounts in value through the Service, or any employment, contractor, or other relationship between Customer and an Authorized Users. For the avoidance of doubt, Arcade simply acts as a provider of software Services and all employment or engagement relationships and contractual obligations between Customer and any Authorized User are strictly between such parties. 

Arcade shall indemnify and defend Customer from and against any and all Loss arising out of and related to any Claim of a third party that the Services infringe upon or violate Intellectual Property Rights, whether or not the claim, suit, proceeding or allegation is successful. Following notice of a Claim or of a threatened or actual suit relating to the infringement, Arcade shall, upon written notice to Customer, at Arcade’s election and Arcade’s expense: (x) procure for Customer the right to continue using the Services or component, (y) replace or modify the same so that it becomes non-infringing or (z) provide to Customer a refund for all amounts pre-paid hereunder for and in connection with the Services, its use, maintenance and cessation of use, including all monies paid or expenses incurred by Customer for system integration if neither (x) nor (y) are possible. THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ARCADE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

IN NO EVENT WILL ARCADE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ARCADE AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT OF LICENSE FEES ACTUALLY PAID BY CUSTOMER TO ARCADE FOR THE SERVICE TO WHICH THE CLAIM RELATES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

7. Miscellaneous 

(a) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties (or between Arcade and any Authorized User), and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

(b) Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Arcade may, without Customer’s consent, include Customer’s name and other indicia in its lists of Arcade’s current or former customers of Arcade in promotional and marketing materials.

(c) Notices. Unless otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party to the address or email set forth in the Service Order (or to such other address or such other person that such party may designate from time to time in accordance with this section 7). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, in each case, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the second day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

(d) Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

(e) Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

(f) Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control and makes performance under this Agreement impossible or commercially impracticable (a “Force Majeure Event”), including but not limited to (i) acts of God; (ii) flood, fire, earthquake, pandemics, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency; (viii) shortage of adequate power or transportation facilities. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The impacted party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the impacted party's failure or delay remains uncured for a period of sixty (60) days following written notice given by it under this Section 7(f), the other party may thereafter terminate this Agreement upon fifteen (15) days written notice. 

(g) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

(h) Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(i) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the County of Tarrant, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 

(j) Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

(k) Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Confidentiality or License would cause Arcade irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Arcade will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(l) Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

(m) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

(n) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, that provision must be construed to the extent necessary to ensure that it is not illegal, invalid or unenforceable. If that clause cannot be so construed, then that provision shall be severed without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.

(o) Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Arcade’s prior written consent.

8. Agreement & Acceptance

By accessing and using the Services, you confirm that you have read, understood, and agree to be bound by the terms and conditions set forth in the Terms of Service available on our website at https://arcade.co/terms, which governs your use of the Services.

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Changes to these Terms of Service‍

Arcade may update these Terms at its discretion. When we make material changes to these Terms, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the app or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Arcade Services after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using Arcade under the new version of the Terms, you may terminate your account by contacting help@arcade.co.

Contact Us

‍If you have any questions or comments about these terms of service or your personal information, please send an email to help@arcade.co.