Arena Solutions Service Agreement
This Service Agreement (this "Agreement”) is between Arena Solutions, Inc., a California corporation ("Arena Solutions”) and the entity ("Customer”) that has contracted for Arena Solutions' "Arena PLM” services (the "Service”), located at app.bom.com. This Agreement governs Customer's use of the Arena Solutions Internet web site (the "Site”), located at http://www.arenasolutions.com, and the Service. The portion of the Service for which Customer has initially contracted is described either in an Arena Solutions "Quotation” accepted by or on a webpage on the Site provided to Customer (each a "Quote”). The Quote is incorporated herein by this reference. This Agreement is effective as of the date Customer is notified that any Service described in the Quote is first available to Customer (the "Effective Date”).
1. Service Units. Subject to the terms of this Agreement, Arena Solutions grants Customer a non-exclusive, limited license to use the portions of the Service for which Customer has then contracted (such portions of the Service are collectively, the "Service Units”). Customer's right to use Service Units shall commence on the Effective Date. The Service Units and their respective functions at any particular time are as described on the Site at such time.
2. Charges and Payment of Fees.
2.1 Service Unit Fees. Customer agrees to pay the fees for the contracted Service Units at the prices and on the terms set forth in the Quote and on the other terms of this Agreement; provided that if the Quote indicates that Arena Solutions will provide Customer the Service Units at no charge for a specified period, then no charge applies for such Service Units for such period. Customer may purchase additional Service Units at the prices then in effect (unless otherwise agreed) and on the other terms of this Agreement, including Section 2.2, subject to restrictions on additional Service Unit purchases as may be indicated in the Quote. Customer also may reduce its Service Units as set forth in Section 2.2. Except as expressly set forth in this Agreement, (a) Customer may not reduce the Service Units covered by this Agreement, and (b) Service Units fees are not refundable or creditable. Customer is responsible for paying for all Service Units ordered for the entire then-current term, whether or not such Service Units are actively used. Charges for services other than Service Units will be billed as agreed at the time such services are contracted. All prices are quoted in and shall be payable in United States dollars.
2.2 Payment Terms.
(a) Generally. Arena Solutions charges and collects in advance for Service Units. Service Units are payable either on an annual basis ("Annual Service Units”) or on a one-time basis.
(b) Fees for Adding Service Units. If Customer adds Service Units, Customer will be billed or invoiced when such Service Units are added. The fees for all added Annual Service Units, when added or renewed on an anniversary of the Effective Date (each a “Renewal Date”), will be billed or invoiced for a one year term. The fees for Annual Service Units other than on a Renewal Date (“Off-Term Units”) will be billed or invoiced for a proportionate amount of the applicable annual fee based on the length of the period from the date such Off-Term Units are added until the next Renewal Date. Thereafter, such Off-Term Units will be billed or invoiced for the full annual fee with Customer’s other Annual Service Units.
(c) Reducing Annual Service Units. Customer may elect to terminate any or all of its Annual Service Units on each Renewal Date if Customer provides Arena Solutions at least thirty (30) days’ advance written notice of such election.
(d) Invoices. Service Unit charges will be based on the number of Service Units contracted for or used, whether or not such Service Units are actively used. Invoices will be (i) generated (A) on or prior to the Effective Date and, for Service Units added other than on a Renewal Date, as such Service Units are added, and (B) unless this Agreement has terminated, approximately one month in advance of any subsequent Renewal Date for all then effective Annual Service Units, and (ii) due within thirty (30) days of the date of such invoice. Customer must notify Arena Solutions within sixty (60) days following receipt of any invoice if it disagrees with any charge in such invoice and the basis for such disagreement. To the extent Customer fails to provide such notice in such time period, then such invoice will be deemed conclusive and Customer will be deemed to have waived any right to thereafter dispute the charges in such invoice.
(e) Non-Payment and Collection. In addition to any other rights granted to Arena Solutions herein, Arena Solutions reserves the right to suspend or terminate this Agreement and Customer access to the Service as set forth in Section 4.2 in the event of Customer’s failure to meet its payment obligations (Customer account becomes delinquent). Past due invoices are subject to interest of 1.0% per month or the maximum permitted by law, whichever is less, plus all expenses of collection.
2.3 Adding Service Units. Adding most Service Units requires contacting Arena Solutions, paying the required Service Units fees as set forth in Section 2.2, and obtaining the necessary access rights. However, except as set forth in the Quote, Customer may add certain Service Units ("User Initiated Service Units”), such as "Full Access User Licenses” without contacting Arena Solutions. Customer understands that Arena Solutions will, periodically, remotely audit Customer's use of the Service to determine if its usage of User Initiated Service Units is exceeding the Service Units for which Customer has paid. If Customer uses User Initiated Service Units in excess of those for which it has paid, then Customer will be charged for those additional User Initiated Service Units on the terms set forth in Section 2.2(b); however, such Service Units will be deemed to commence as of the fifteenth day of the month in which such Service Units were first used.
3. Use of the Site and Service.
3.1 Permitted Users. Use of the Service and the Site by Customer, its employees, and each third party that Customer designates as a permitted user of a Service Unit (each such employee and third party is a "Permitted User”), is subject to the terms and conditions of this Agreement. Customer may not designate a competitor of Arena Solutions as a Permitted User. Service Units licensed on a "named user” basis may only be used by the individual Permitted User named in the account for such Service Unit pursuant to Section 3.5. Customer understands and agrees that it is responsible for, and agrees to indemnify and hold Arena Solutions harmless from, the acts and omissions of the Permitted Users.
3.2 Ownership. Arena Solutions and/or its licensors own all right, title and interest, including intellectual property rights, in and to the Service and the Site. Customer acknowledges that no title to the intellectual property in the Service is transferred to Customer. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information Customer or any Permitted User provides to Arena Solutions relating to the Site or the Service are owned exclusively by Arena Solutions. Customer hereby assigns such rights to Arena Solutions. Arena Solutions reserves all rights not expressly granted hereunder. Customer agrees that it will not attempt to, nor authorize others to, reverse engineer, reverse compile, disassemble, modify, adapt, translate, create derivative works from, sell, rent, lease, loan, time-share, distribute, transmit over a network, sublicense or provide service bureau services by using, the Service, in whole or in part. Customer also agrees that it will not "frame” or "mirror” the Site, the Service, or any content contained therein.
3.3 General Conduct. Customer agrees to, and to cause each Permitted User to, abide by this Agreement and all applicable local, state, national and foreign laws and regulations in connection with the Service and the Site. In addition Customer agrees to not, and to cause each Permitted User to not: (a) use the Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest or collect information about the users of the Service or the Site or use such information for the purpose of transmitting or facilitating the transmission of unsolicited bulk electronic mail or communications; (c) use the Service or the Site to transmit or post unlawful, harassing, libelous, abusive, harassing, tortious, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) use the Service to host any data or information requiring security clearances issued by the United States or any other government; (e) use the Service or the Site to transmit or post any material that may infringe or violate the intellectual property rights or other rights of third parties, including patents, trademarks, copyrights or rights of publicity; (f) use the Service to transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, and cancelbots; (g) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (h) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; (i) allow any competitor of Arena Solutions to access or view the Service or use the Service or the Site for any purpose competitive with Arena Solutions; or (j) harass or interfere with another user's use and enjoyment of the Service.
3.4 Third Party Interaction. Customer or a Permitted User may access other Internet sites through the Site or the Service or interact with third parties through the Site or the Service. All such access and interaction are solely between Customer or the Permitted User and the applicable third-party. Arena Solutions shall have no liability, obligation or responsibility for any such activities or any agreements or terms of use applicable to such activities.
3.5 User Accounts and Information. In order for a Permitted User to use a Service Unit to access the Service, he or she must have a user account and be registered with Arena Solutions. User accounts cannot be "shared” or used by more than one individual. Customer agrees to submit accurate, current and complete information about each Permitted User, and to promptly update such information. Arena Solutions understands and agrees that the identity of a specific Permitted User may change during the term of this Agreement if Customer desires to remove one individual's access to the Service and to provide another individual with such access.
3.6 Passwords. Each Permitted User will have a personal password for his or her user account. Arena Solutions has no obligations with regard to the use of such password by third parties. Customer agrees to notify Arena Solutions as soon as commercially reasonable if Customer has any reason to believe that the security of Customer's account has been compromised.
3.7 Security. Arena Solutions uses commercially reasonable practices to maintain the integrity of the data Customer or a Permitted User places on the Site ("Data”), as outlined in the then current version of the Arena Solutions "Security Statement” (the current version of which is located at http://www.arenasolutions.com/security). Such Security Statement may be amended from time to time by Arena Solutions.
3.8 Data. Customer, not Arena Solutions, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data transmitted through, or posted using, the Site or the Service, including all actions of the Permitted Users. Arena Solutions shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Data or for the failure to store any Data.
3.9 Privacy. Customer agrees to the Arena Solutions "Privacy Policy” located at (http://www.arenasolutions.com/privacy) (the "Privacy Policy”). Arena Solutions may amend the Privacy Policy from time to time, as set forth in the Privacy Policy, and Customer will be deemed to have agreed to such amendments as set forth in the Privacy Policy. Customer and Arena Solutions agree that Arena Solutions may only use the Data in accordance with the then current version of the Privacy Policy. Arena Solutions is not granted by this Agreement, ownership in any of the Data or other materials Customer submits or posts as part of its use of the Service. Arena Solutions may access Customer's account, including its Data, in connection with monitoring the Service for technical performance, to respond to service or technical problems, to plan for service upgrades or enhancements, or as otherwise stated in the Privacy Policy. Arena Solutions will not otherwise monitor, edit, or disclose any information regarding Customer or its account, including any Data, without Customer's prior permission.
3.10 Storage . Customer is allowed a pre-determined amount of storage as specified in the Quote. Arena Solutions reserves the right to establish or modify general practices and limits concerning the storage of Data on the Service on future Quotes.
3.11 Support. Arena Solutions will provide Customer with reasonable levels of support through a variety of systems, including FAQs and email.
3.12 Service Level Commitment. Arena Solutions agrees to provide Customer a service level commitment and credits as outlined in the then current version of the Arena Solutions “Service Level Commitment” (the current version of which is located at http://www.arenasolutions.com/slc). Such Service Level Commitment may be amended from time to time by Arena Solutions.
4. Term and Termination.
4.1 Term and Renewal. Unless sooner terminated, this Agreement commences on the Effective Date and continues until the first anniversary of such date, unless an earlier expiration date is specified in the Quote. On the expiration of the initial term and each renewal term, this Agreement will automatically renew for an additional one (1) year term, unless one party provides the other with written notice of its intent not to renew at least thirty (30) days prior to such anniversary date (Customer's termination of all its Annual Service Units pursuant to Section 2.2(c) is deemed a notice of non-renewal). Notwithstanding the foregoing, if the Service Units are provided at no charge for an introductory period, then the initial renewal of this Agreement will only occur upon the mutual written agreement of the parties. If so renewed, then thereafter this Agreement will automatically renew as set forth above. Unless otherwise agreed, each renewal will be at the rates and on the terms of this Agreement as then in effect between the parties.
4.2 Suspension or Termination. If either party materially breaches this Agreement and fails to cure such breach within thirty (30) days of notice, then the other party, in its sole discretion, may terminate this Agreement, and, if Customer is the breaching party, Arena Solutions may suspend or terminate Customer's and each Permitted User's password, account, or use of the Service and remove and discard any Data within the Service. Any breach of Customer’s payment obligations will be deemed a material breach of this Agreement.
4.3 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, (a) all of Customer's Service Units and all licenses granted hereunder immediately terminate, (b) Customer's right to access the Site or the Service or to access or use any Data immediately ceases, and (c) Arena Solutions and its licensors shall have no obligation to maintain any Data stored in a terminated account or to forward any Data to Customer or any third party. However, Arena Solutions will make available to Customer, within thirty (30) days of the termination or expiration of this Agreement, a file of the Data on the Service if Customer cures any of its breaches of this Agreement and requests such file prior to the effective date of such termination or expiration. The expiration or termination of this Agreement under this Section 4 will not (i) affect Customer's obligation to pay all amounts due to Arena Solutions accrued prior to termination (or, where applicable, after termination), nor (ii) entitle Customer to reimbursement or refund of any amounts already paid to Arena Solutions. In addition, Sections 3.2, 4, 5, 6, 7, 8, 9, 10, 11 and 13 will survive the expiration or termination of this Agreement.
5. No Representations or Warranties. Arena Solutions is providing the Site, the Service (including Service Units), and related support on an "As-Is" basis. Neither party makes any warranties, express or implied, concerning the subject matter of this Agreement, the Site, the Service (including Service Units) and all performance hereunder, and each party hereby disclaims any and all implied warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, and non-infringement of third party rights, in each case related to this Agreement, the Site, the Service and all performance hereunder. Arena Solutions does not warrant that the Site, the Service or related support shall be uninterrupted or error free, and makes no warranties regarding the completeness, accuracy or availability of the Site, the Service or related support. Neither Arena Solutions nor its suppliers make any representation or warranty regarding the accuracy of any materials or other information provided on or through the Site, the Service or related support. These disclaimers constitute an essential part of this Agreement.
6. Limitation of Liability. In no event shall either party's aggregate liability under or relating to this Agreement, the Site, the Service or related support exceed the amounts actually paid by and/or due from Customer for Service Units under this Agreement in the twelve (12) month period immediately preceding the event giving rise to such claim; provided that such cap on liability shall not apply to liability under Section 8 nor to the costs of defense incurred by an indemnifying party under Section 7. In addition, except for liability under Section 7 or 8, none of Arena Solutions, its licensors, nor Customer, shall be liable under or relating to this Agreement, the Site, the Service or related support under any theory for any incidental, consequential, special or exemplary damages in any way relating to this Agreement, including any lost profits or lost savings, regardless of the theory on which any such damages may be based, even if such entity has been advised of the possibility of such damages, or for any claim by any third party. These limitations and disclaimers of liability constitute an essential part of this Agreement.
7. Infringement Indemnification.
7.1 Indemnity Obligation. Arena Solutions will defend, at its own expense, any claim, suit or proceeding (a "Claim”) brought against Customer to the extent it is based upon a claim that the Site or the Service infringes upon any existing U.S. patent or copyright, or misappropriates any trade secret, of any third party. Customer will defend, at its own expense, any Claim brought against Arena Solutions to the extent it is based upon a claim that any Data infringes upon any existing U.S. patent or copyright, or misappropriates any trade secret, of any third party. The party seeking indemnification agrees that it shall promptly notify the other party in writing of any such Claim and give the indemnifying party full information and reasonable assistance in connection therewith. The indemnifying party shall have the sole right to control the defense of any such Claim at the indemnifying party's expense and the sole right to settle or compromise any such Claim. If the indemnified party complies with the provisions hereof, then, subject to the limits in Section 6, the indemnifying party will pay all damages, costs and expenses finally awarded to third parties against the indemnified party in such action.
7.2 Effect on Service. If the Site or the Service are, or in Arena Solutions' opinion might be, held to infringe as set forth above, Arena Solutions may, at its option replace or modify the Site or the Service so as to avoid infringement but remain substantially functionally equivalent, or procure the right for Customer to continue to use the Site and the Service at no additional expense to Customer. If neither of such alternatives is, in Arena Solutions' opinion, commercially reasonable, then Customer's right to continue to use the infringing portions of the Site or the Service shall terminate and Arena Solutions' sole liability, in addition to its obligation to reimburse awarded damages, costs and expenses as set forth above, shall be to refund the balance of any prepaid Annual Service Units fees relating to such terminated portions of the Site and the Service.
7.3 Limitations. Arena Solutions will have no liability for any claim of infringement to the extent based on (a) Customer's use of the Site or the Service in a manner not required by the Site or the Service, (b) any Data or other materials Customer or any Permitted User places on the Site or the Service, or (c) use of the Site or the Service with any items not provided by Arena Solutions.
7.4 Entire Liability. The foregoing states the entire liability of Arena Solutions to Customer concerning infringement of intellectual property rights, including but not limited to, patent, copyright, trademark and trade secret rights.
8. General Indemnification. Customer hereby agrees to indemnify and hold harmless Arena Solutions and its suppliers and licensors against any claim, damages, loss, liability or expense, including attorneys fees, arising out of Customer's or any Permitted User's use of the Site or Service in any way contrary to this Agreement.
9. Notices. All notices, requests or other communications required to be given under this Agreement must be in writing. Each party may give notice by means of written communication sent by pre-paid post or courier or by email to the other party at the addresses set forth below (as it may be updated from time to time) in the case of Arena Solutions, or at the address then on record in Customer's account information with Arena Solutions, in the case of Customer. Notices addressed, as indicated above will be effective upon the earlier of (a) actual receipt, (b) three (3) days after posting, if sent by prepaid registered mail, return receipt requested, (c) the next business day, if sent by overnight courier, or (d) if sent by confirmed email, 12 hours after dispatch. A general notice on the Site shall be deemed to have been provided to Customer the next time Customer logs onto the Site or the Service.
Arena Solutions, Inc. 4100 East Third Avenue Suite 300 Foster City, CA 94404 Email Address: legal@arenasolutions.com
10. Arbitration. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration to be conducted in Foster City, California (or at such other location as the parties may agree) under the commercial arbitration rules then prevailing of the American Arbitration Association by one arbitrator appointed in accordance with those rules. The arbitrator will apply the law specified in Section 13 to the merits of any dispute or claim. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may grant permanent injunctions or other relief in such dispute or claim; provided that the arbitrator may not grant licenses to any intellectual property owned by either party nor may the arbitrator award punitive damages. Notwithstanding the foregoing, without breach of this arbitration provision either party may apply to any court of competent jurisdiction to collect amounts due, for temporary injunctive relief, or to enforce such party's intellectual property rights.
11. Force Majeure. Any failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, war (declared or undeclared), acts of terrorism, civil unrest, strike, fire, flood, or other act of nature, power outages, and failures of the Internet, delays in component supply, equipment failure, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
12. Publicity. Arena Solutions may list Customer on the Site as a customer of Arena Solutions. In addition, Customer agrees to reasonably consider cooperating with Arena Solutions from time to time in connection with serving as a customer reference, providing testimonials for the Service; and issuing press releases relating to the relationship between Customer and Arena Solutions.
13. General Provisions. This Agreement shall be governed by the laws of the State of California, without application of its conflict of laws principles. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of the United States and other applicable countries and jurisdictions. No waiver by either party of the breach of this Agreement will be valid or binding unless made in writing and signed by the party prejudiced thereby. This Agreement constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms and conditions on any purchase order or other document either party may submit to purchase Service Units or otherwise shall not be effective, notwithstanding any contrary terms therein. Except as set forth herein, this Agreement may be amended or modified only by the mutual written agreement of authorized representatives of the parties. Customer may not assign or transfer this Agreement without Arena Solutions' prior written consent.
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