Arena Solutions, Inc. (“Arena”) created the Arena Test Drive as a free, limited-time offer for prospective customers to utilize the Arena services with pre-populated data.
This Test Drive Service Agreement (this “Agreement”) is between Arena and the entity (“Prospect”) that has agreed to this trial use of the Arena services (the “Service”), located at app.bom.com. This Agreement governs Prospect's use of the Arena Internet web site (the “Site”), located at http://www.arenasolutions.com, and the Service.
By using this Site and Service, you and other users of your Arena account (collectively, “Users”) are deemed to have understood and agreed to this Agreement which specifies the terms and conditions of use. If you do not accept and agree to these terms and conditions, do not use the Service or Site.
1. Use of the Site and Service.
1.1 Permitted Users. Use of the Service and the Site by Prospect, its employees, and each third party that Prospect designates as a permitted user (each such employee and third party is a “Permitted User”), is subject to the terms and conditions of this Agreement. Prospect may not designate a competitor of Arena as a Permitted User. Permitted Users are licensed on a “named user” basis and may only be used by the individual Permitted User named in the account. Prospect understands and agrees that it is responsible for, and agrees to indemnify and hold Arena harmless from, the acts and omissions of the Permitted Users. Prospect agrees not to assign more than seven Permitted Users.
1.2 Ownership. Arena and/or its licensors own all right, title and interest, including intellectual property rights, in and to the Service and the Site. Prospect acknowledges that no title to the intellectual property in the Service is transferred to Prospect. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information Prospect or any Permitted User provides to Arena relating to the Site or the Service are owned exclusively by Arena. Prospect hereby assigns such rights to Arena. Arena reserves all rights not expressly granted hereunder. Prospect 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. Prospect also agrees that it will not “frame” or “mirror” the Site, the Service, or any content contained therein.
1.3 General Conduct. Prospect 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 Prospect 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 to access or view the Service or use the Service or the Site for any purpose competitive with Arena; (j) harass or interfere with another user's use and enjoyment of the Service; or (k) shall not prepare any derivative work of the Site or of the Service, Prospect shall 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. Prospect also agree that it will not “frame” or “mirror” the Site, the Service, or any content contained therein.
1.4 Third Party Interaction. Prospect 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 Prospect or the Permitted User and the applicable third-party. Arena shall have no liability, obligation or responsibility for any such activities or any agreements or terms of use applicable to such activities.
1.5 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. User accounts cannot be “shared” or used by more than one individual. Prospect agrees to submit accurate, current and complete information about each Permitted User, and to promptly update such information. Arena understands and agrees that the identity of a specific Permitted User may change during the term of this Agreement if Prospect desires to remove one individual's access to the Service and to provide another individual with such access.
1.6 Passwords. Each Permitted User will have a personal password for his or her user account. Arena has no obligations with regard to the use of such password by third parties. Prospect agrees to notify Arena as soon as commercially reasonable if Prospect has any reason to believe that the security of Prospect's account has been compromised.
1.7 Security. Arena uses commercially reasonable practices to maintain the integrity of the data Prospect or a Permitted User places on the Site (“Data”), as outlined in the then current version of the Arena “Security Statement” (the current version of which is located at http://www.arenasolutions.com/security.html). Such Security Statement may be amended from time to time by Arena.
1.8 Data. Prospect, not Arena, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data transmitted through, or posted using, the Site or the Service, including all actions of the Permitted Users. Arena 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.
1.9 Privacy. Prospect agrees to the Arena “Privacy Policy” located at (http://www.arenasolutions.com/privacy.html) (the “Privacy Policy”). Arena may amend the Privacy Policy from time to time, as set forth in the Privacy Policy, and Prospect will be deemed to have agreed to such amendments as set forth in the Privacy Policy. Prospect and Arena agree that Arena may only use the Data in accordance with the then current version of the Privacy Policy. Arena is not granted by this Agreement, ownership in any of the Data or other materials Prospect submits or posts as part of its use of the Service. Arena may access Prospect'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 will not otherwise monitor, edit, or disclose any information regarding Prospect or its account, including any Data, without Prospect's prior permission.
1.10 Storage. Arena reserves the right to establish or modify general practices and limits concerning the storage of Data on the Service during the trial period.
1.11 Support. Arena will provide Prospect with reasonable levels of support through a variety of systems, including the FAQs and email.
1.12 Service Level Commitment. Arena agrees to provide Prospect a service level commitment as outlined in the then current version of the Arena “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.
2. Term and Termination.
2.1 Term. Unless sooner terminated, this Agreement commences on the date it is accepted by the Prospect (“Effective Date”) and continues for the duration specified on the webpage describing the Arena Test Drive (“Offer”) at the time of registration.
2.2 Termination. Arena, in its sole discretion, may suspend or terminate, at anytime, Prospect's and each Permitted User's password, account, or use of the Service and remove and discard any Data within the Service.
2.3 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, (a) all of Prospect's Service Units and all licenses granted hereunder immediately terminate, (b) Prospect's right to access the Site or the Service or to access or use any Data immediately ceases, and (c) Arena and its licensors shall have no obligation to maintain any Data stored in a terminated account or to forward any Data to Prospect or any third party. In addition, Sections 1.2, 2, 3, 4, 5, 6, 7, 8, 9 and 10 will survive the expiration or termination of this Agreement.
3. No Representations or Warranties. Arena 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 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 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.
4. 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 $1,000; provided that such cap on liability shall not apply to liability under Section 6 nor to the costs of defense incurred by an indemnifying party under Section 5. In addition, except for liability under Section 5 or 6, none of Arena, its licensors, nor Prospect, 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.
5. Infringement Indemnification.
5.1 Indemnity Obligation. Arena will defend, at its own expense, any claim, suit or proceeding (a “Claim”) brought against Prospect 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. Prospect will defend, at its own expense, any Claim brought against Arena 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 4, the indemnifying party will pay all damages, costs and expenses finally awarded to third parties against the indemnified party in such action.
5.2 Effect on Service. If the Site or the Service are, or in Arena's opinion might be, held to infringe as set forth above, Arena 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 Prospect to continue to use the Site and the Service at no additional expense to Prospect. If neither of such alternatives is, in Arena's opinion, commercially reasonable, then Prospect's right to continue to use the infringing portions of the Site or the Service shall terminate and Arena's' 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 fees relating to such terminated portions of the Site and the Service.
5.3 Limitations. Arena will have no liability for any claim of infringement to the extent based on (a) Prospect'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 Prospect 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.
5.4 Entire Liability. The foregoing states the entire liability of Arena to Prospect concerning infringement of intellectual property rights, including but not limited to, patent, copyright, trademark and trade secret rights.
6. General Indemnification. Prospect hereby agrees to indemnify and hold harmless Arena and its suppliers and licensors against any claim, damages, loss, liability or expense, including attorneys fees, arising out of Prospect's or any Permitted User's use of the Site or Service in any way contrary to this Agreement. Prospect specifically agrees to reimburse Arena for any expense, including attorneys fees, if Prospect is determined to be a competitor of Arena and has accessed the Site and Service under this Offer.
7. 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, or at the address then on record in Prospect's account information with Arena, in the case of Prospect. 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 Prospect the next time Prospect 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
8. 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 10 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.
9. 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.
10. 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 Prospect uses the Service from outside the United States of America, Prospect 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. Prospect may not assign or transfer this Agreement without Arena's prior written consent.
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