END USER SOFTWARE LICENSE AGREEMENT
Version Date: 19 February 2019
This End User License and Services Agreement, including any and all SOW’s agreed to by the parties (collectively, the “Agreement”), is between the entity identified in the Quote (“Customer”) and Arena Solutions, Inc., a California corporation (“Arena Solutions,” “we” or “our”), and sets forth the terms and conditions under which Arena Solutions will make available certain services and Customer will be permitted to use such services. This Agreement is effective as of the date set forth in the Quote or, if no effective date is specified, the date of Customer signature on the Quote (“Effective Date”). By signing the Quote, Customer and Arena Solutions agree to be bound by the terms of the Agreement. In the event of conflict between this Agreement, the Quote or the SOW, the following order of precedence shall apply: i) the Quote; ii) SOW; and iii) the Agreement.
“Application” means the software delivered by Arena in object code form by electronic download only, for loading on Customer’s client-computers approved by Arena for use by Users, and specifically identified in the applicable Quote.
“Derivative Works” means a revision, enhancement, translation, abridgment, condensation, or expansion of Application or any other form in which such Application may be recast, transferred, or adapted, which, if used without the consent of Arena, would constitute a copyright infringement.
“Documentation” means the user manuals and any other materials, including updates thereto, in any form or medium made generally available by Arena or its authorized reseller or distribution to the users of the Application, regarding the proper installation and use of the Application.
“Effective Date” shall mean the effective date set forth in the Quote or, if no effective date is specified, the date of Customer signature on the Quote.
“Fees” means the fees payable by Customer to Arena as set forth in the Quote.
“License” means a license granted by Arena to Customer that allows Customer to use the Application in strict accordance with this Agreement.
“New Versions” means new releases and new versions of the Application by Arena.
“Quote(s)” means the ordering documents authorized by Arena Solutions or its authorized distribution partners for purchases of Services hereunder, including addenda thereto, that are entered into between Customer and Arena Solutions from time to time.
“Updates” means modifications, revisions, or enhancements to the Application, other than New Versions, typically to correct errors.
“Users” means individuals who are authorized by Customer to use the Application, including but not limited to Customer employees, consultants, contractors and agents, including named user and concurrent user licenses, provided that only a single user may use each license (for named user license only) and provided that each such user must have a distinct login or ID, and login or IDs may not be shared with another user unless the original user’s access is first disabled.
2.1. Application License. Subject to the terms and conditions of this Agreement, including without limitation payment of the Fees, Arena hereby grants to Customer as of the Effective Date, a non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable License for Customer’s internal use by Users during the Term of this Agreement as defined in applicable Quote, to install the Application and allow Customer’s Users to use the Application and Documentation for the sole benefit of Customer and solely at Customer’s site. In the event Customer desires to license additional Application from Arena, the parties shall execute one or more additional Quotes for the applicable Application. The Application and Documentation may not be distributed to any third parties. Customer may use the Application for internal business purposes only in relation to its own computer systems and any computer systems or facilities owned or managed exclusively by or for Customer. Customer may not use the Application for providing hosted or service bureau services to the general public or any third-party entities that are not managed facilities for which Customer provides integral IT services.
2.2. If the Application is a version that Customer has converted or exchanged from a prior version, Customer agrees that it will no longer use the prior version. Arena reserves the right to require the certification of the destruction of such previous version of the Application.
2.3. Feedback. If Customer provides any feedback to Arena concerning the functionality and performance of an application (including identifying potential errors and improvements), Customer hereby assigns to Arena all right, title and interest in and to the feedback and Arena is free to use the feedback without payment or restriction.
3. PROHIBITED USES
3.1. Restrictions on Use. Customer shall not (i) allow third parties or develop methods for third parties to use the Application; (ii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Application, in whole or in part, and Customer shall not attempt to obtain in any other manner any Application source code, and shall not carry out any action to the detriment of Arena’s intellectual property rights or those of its suppliers; (iii) make copies, execute, publish, or reproduce Application or Documentation, unless expressly authorized in this Agreement (and all copies must maintain Arena’s copyright notices); (iv) develop any Derivative Works or any type of software program based on Application, the Documentation, or any other Confidential Information (as defined in Section 9) of Arena; (v) make available, reveal, disclose, offer, or allow the use of Application by third parties, without the prior written consent of Arena; (vi) alter or modify the Application without the prior written consent of Arena; (vii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Application, including without limitation any mechanism used to restrict or control Application functions; (viii) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by Arena for downloading Application; or (ix) disclose to any third party any benchmarking or comparative study involving the Application or Documentation.
4. SUPPORT AND OTHER SERVICES
4.1. Support. Support services are provided with the license for the Applications during the Term and includes access to updates, upgrades, bug fixes and enhancements provided generally by Arena to its customers (“Support”). In order to receive Support, Customer must use the current or immediately prior version of the Application (i.e. any release indicated by a numeral change to right or left of first decimal versus the prior release), provided that Customer shall convert to then current version of the Application once it has been commercially available for one (1) year.
4.2. Other Services. If and when Customer desires to obtain other services (“Other Services”) from Arena, Customer shall communicate to Arena the type and extent of Other Services desired, and Arena shall develop and provide to Customer a statement of work (the “SOW”) describing the desired Other Services for Customer’s review and approval. Arena shall have no obligation to provide Other Services to Customer unless and until an SOW has been duly executed by Customer. Each SOW shall commence upon its execution by both parties and shall continue until all tasks described therein are completed, unless earlier terminated pursuant to Section 13. The parties may, by mutual agreement, make changes (“Changes”) to the scope, content, deliverables, schedule or other substantive aspects of the Other Services agreed to in any SOW. The party requesting a Change shall prepare a written “Change Order,” specifying in adequate detail the requested Change(s), and shall submit it to the other party for review and, if accepted, approval thereof. In no event shall any Change be effective or acted upon in any way or implemented until a Change Order defining such change has been approved in writing by the duly authorized representatives of both parties.
4.3. Subcontracting. Arena may subcontract all or some of its Support obligations to third parties. In such an event, Arena shall remain fully responsible for all of its Support obligations hereunder.
5. FEES AND PAYMENTS
5.1. Fees. Customer agrees to pay Arena the Fees as set forth in the Quote.
5.2. Payment Terms. Fees must be paid in United States Dollars, or as otherwise stated in the Quote, and are exclusive of out-of-pocket expenses. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment within thirty (30) days of the date of the invoice. Late payments will incur monthly interest charges of 1.5% per month after forty-five (45) days, or the maximum interest rate permitted by law, whichever is less, together with any collection costs (including reasonable attorneys’ fees). Payment options may be credit card, wire/electronic transfer, company check, or other pre-arranged payment method. Arena may invoice parts of an order separately. Arena is not responsible for pricing, typographical, or other errors, in any quotation or offer and reserves the right to cancel any orders resulting from such errors.
5.3. Taxes. All payments for Services under this Agreement shall be made free and clear and without deduction for any and all present and future Taxes. Payments due to Arena under this Agreement shall be increased so that amounts received by Arena, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement if no Taxes were due on such payments. For purposes of this Agreement, the term “Taxes” means all income withholding taxes, levies, imposts, duties, fines, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party’s net income or property. The Customer shall indemnify Arena for the full amount of Taxes attributable to the provision of Services under this Agreement, and any liabilities (including penalties, interest, and expenses) arising from such Taxes, within 30 days from any written demand by Arena party. The Customer shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to Arena receipts or notarized copies thereof within 30 days after the due date for such tax payments. Without prejudice to the survival of any other Agreement of Customer hereunder, the obligations of Customer contained in this section shall survive the payment in full of all payments hereunder.
6. EXPORT RULES. Customer shall not ship, transfer, or export the Application into any country or use the Application in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the “Export Laws”). If any portion of the Application is identified as an export controlled item under the Export Laws, Customer represents and warrants that Customer is not a citizen of, or otherwise located within, or an entity organized under the laws of, or otherwise located within, any nation embargoed by the United States (including without limitation Iran, Syria, Sudan, Cuba, Crimea region of Ukraine, and North Korea), and that Customer is not otherwise prohibited under the Export Laws from receiving the Application. All rights to use the Application are granted on condition that Customer complies with the Export Laws, and all such rights are and shall be deemed forfeited if Customer fails to comply with the Export Laws.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Ownership. Title to the Application, Documentation, Updates, and all patents, copyrights, trade secrets, and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of Arena and its licensors. Customer may not remove, obscure, or alter any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Application or Documentation and will not acquire any rights in the Application or Documentation, except the limited license specified in this Agreement. Arena and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Application, including any improvement or development thereof. Arena retains all rights not expressly granted to Customer in this Agreement. Customer shall promptly notify Arena in writing upon discovery of any unauthorized use of the Application or Documentation or infringement of Arena’s proprietary rights in the Application or Documentation.
8.1. Definition. “Confidential Information” means: (a) the Application; and (b) any business or technical information of Arena or Customer, including but not limited to any information relating to Arena’s or Customer’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” and, if orally disclosed, reduced to writing by the disclosing party within thirty (30) days of such disclosure.
8.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.
8.3. Use and Disclosure Restrictions. During the Term of this Agreement, and for a period of five (5) years after any termination of this Agreement, each party will not use the other party’s Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.
9. WARRANTIES; DISCLAIMER
9.1. Warranty. Arena warrants, for a period of ninety (90) days from the original delivery date, that the Application will be free from defects in materials, workmanship and design and will substantially confirm to the specifications set forth in the Documentation. This limited warranty does not apply to third party or open source software. Arena’s entire liability and Customer’s exclusive remedy in the case of a breach of the foregoing warranty shall be correction of the error, or at Arena’s option, replacement of the Application. This limited warranty, is void if defect has resulted from accident, abuse, negligence, misapplication, or where the Application has not been properly installed or used in accordance with the Documentation.
9.2. Disclaimer. EXCEPT AS SET FORTH HEREIN, THE SOFTWARE IS BEING DELIVERED TO YOU “AS IS” AND ARENA AND ITS SUPPLIERS MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. ARENA AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. ARENA AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. GIVEN THE NATURE AND VOLUME OF MALICIOUS AND UNWARRANTED ELECTRONIC CONTENT, ARENA DOES NOT WARRANT THAT ANY SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR WILL DETECT ONLY SECURITY THREATS OR MALICIOUS CODE OR THAT ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY SOFTWARE OR SERVICE IS ACCURATE, COMPLETE OR FREE OF VIRUSES, MALICIOUS CODE, INTRUSIONS, SECURITY BREACHES OR OTHER HARMFUL CONTENTS OR COMPONENTS. LICENSEE ASSUMES ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE THE SOFTWARE AND ASSUMES ALL RISKS ASSOCIATED WITH ITS USE.
10.1. Customer Indemnity. Customer shall indemnify, defend and hold harmless Arena, Arena’s suppliers, and their respective affiliates, officers, directors, employees, representatives, and agents from and against all losses, damages, or expenses of whatever form or nature, including attorney’s fees and other costs, arising out of or related to Customer’s use of the Application, other than any such liability as to which Arena has indemnified Customer hereunder, provided that: (i) Customer is promptly notified in writing of any such claim; and (ii) Customer shall have the exclusive right to control the defense of such claim. In no event shall Arena settle or compromise any such claim without Customer’s prior written approval. Arena may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice. This Section 11.1 states the entire liability of Customer with respect to any of the foregoing.
10.2. Arena Indemnity. Arena shall indemnify, defend and hold harmless Customer, its affiliates, and their respective officers, directors, employees, representatives, and agents from and against all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs, arising out of or related to any third party claim against Customer that the Application violates any patent, copyright or trade secret right of such third party, provided that: (i) Customer’s use of the Application is in accordance with the terms of this Agreement; (ii) Arena is promptly notified in writing of any such claim; and (iii) Arena shall have the exclusive right to control the defense of such claim. In no event shall Customer settle or compromise any such claim without Arena’s prior written approval. Arena shall either: (i) obtain for Customer the right to continue to use the Application; or (ii) modify the Application so that it becomes non-infringing; or (iii) only in the event that options (i) and (ii) above are not commercially reasonable, terminate the License with respect to the infringing components of the Application without any further obligation to Customer. Customer may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice. This Section 11.2 states the entire liability of Arena with respect to any of the foregoing.
10.3. Exceptions. Arena’s indemnification obligations shall not apply to any claim of infringement resulting from: (i) the combination of the Application with other products or services (to the extent that the claim is based upon such combination); (ii) use of the Application if it has been modified, altered, enhanced, or changed in any way by anyone other than Arena; (iii) use of the Application in a manner not authorized by this Agreement or provided for in the documentation; or (iv) use of other than the most current, release of the Application, if such claim would have been avoided by use of the most current release.
11. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY OF LICENSEE ARISING UNDER SECTIONS 4 (PROHIBITED USES), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF ARENA, ARENA’S LICENSORS OR SUPPLIERS), BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOST REVENUE, LOST PROFITS. LOST SAVINGS, LOST BUSINESS OR LOSS OF GOODWILL, EVEN IF ITS REPRESENTATIVE (OR IN THE CASE OF ARENA, A REPRESENTATIVE OF ONE OR MORE OF ARENA’S LICENSORS OR SUPPLIERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. EXCEPT FOR LIABILITY ARISING UNDER SECTION 9 (CONFIDENTIALITY), THE AGGREGATE LIABILITY OF ARENA, AND ARENA’S LICENSORS AND SUPPLIERS, AND LICENSEE, RESPECTIVELY, UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER IN THE SIX MONTHS PRECEDING THE INCIDENT.
12.1. Term. The term of this Agreement shall be for the period specified in the Quote, and if none is specified, then for an initial term of one (1) year from the Effective Date, and shall automatically renew for successive one (1) year periods, unless a party provides the other party written notice at least thirty (30) days in advance of the expiry of the then-current term of its desire to not renew such term (“Term”). Arena shall have the right to increase pricing for any renewal Term and will give Customer at least 30 days’ notice (which may be by email) of any increase in the fees, or any new charges and fees, prior to the end of the then-current Term. In the event Customer fails to renew a Support Term, Support shall no longer be provided.
12.2. Termination for Cause. Either party may terminate this Agreement, or a Quote or SOW executed hereunder, upon thirty (30) days’ prior written notice to the other party, if the other party is in material breach of this Agreement or such Quote or SOW (including Customer’s failure to make payment when due) and fails to cure such material breach within thirty (30) days after delivery of such written notice.
12.3. Immediate Termination. Arena or Customer may immediately terminate this Agreement, and all Quotes and SOWs executed hereunder, upon notice if the other party: (i) ceases to do business or otherwise terminates its business operations; (ii) becomes the object of the institution of voluntary proceedings in bankruptcy or liquidation; (iii) becomes the object of the institution of involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, if such petition or proceeding is not dismissed or receiver discharged within 30 days of filing or appointment; or (iv) breaches (only with respect to Customer).
12.4. Effect of Termination. Upon termination of this Agreement or a Quote for any reason, Customer shall: (i) immediately stop using the applicable Application; (ii) ensure that all of Customer’s users immediately stop using the applicable Application; (iii) return to Arena the original and all permitted copies of the applicable Application and proprietary information in Customer’s possession, custody, or control; (iv) in lieu of returning such Application and proprietary information as specified in the immediately preceding item, and (v) destroy all such copies and certify in writing, such destruction, signed by an officer of Customer.
12.5. Nonexclusive Remedy. Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
12.6. Survival. Termination of this Agreement shall not: (i) release either party from any claim, including but not limited to any claim for payment, of the other party accrued hereunder prior to the effective date of such termination; or (ii) affect the rights and obligations set forth in Sections 6, 8.1, 9, 11, 12, 13.5, and 14 which shall survive termination.
13.1. Assignment. Neither party may assign this Agreement or any right or obligation hereunder, including without limitation any change of control involving Customer, without the other party’s prior written consent, provided that Arena may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
13.2. Governing Law and Jurisdiction. Unless local law would require otherwise, the construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of California, excluding its choice of law rules, and applicable laws and regulations of the United States of America. The United Nations Convention on Contracts for International Sale of Goods shall not apply. The parties consent to the exclusive jurisdiction of the courts located in San Mateo County, California.
13.3. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
13.4. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
13.5. Notices. Except as otherwise provided herein, all notices to the parties shall be sent to the addresses listed on the Quote. All notices must be made either via email (to the extent expressly permitted in this Agreement), conventional mail, or overnight courier. Notice sent via conventional mail, using registered mail, is deemed received four business days after mailing. Notice sent via email or overnight courier is deemed received the second day after having been sent. Arena may post notices or messages on Arena’s web site to inform Customer of changes to the Support or other matters of importance. Arena shall inform Customer of such broadcast by e-mail. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 14.5.
13.6. Trademarks. Customer grants Arena the limited right to use its logo for promotional purposes on its website during the term of this Agreement.
13.7. Force Majeure. Except for payment obligations for Application, Support, and Other Services rendered, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, riot, act of God or governmental action. If such event giving rise to force majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund.
13.8. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
13.9. Announcements. Customer agrees that Arena may publicly announce and list Customer as a Customer of Arena.
13.10. Entire Agreement. This Agreement, including all schedules, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Except as expressly stated herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties, and in no case can be modified or supplemented by any other written or oral statements, proposals, service descriptions, or purchase order forms. For clarification purposes, neither Arena’s acceptance of Customer’s purchase order nor Arena’s commencement of performance under this Agreement shall constitute acceptance of any terms, conditions, or other provisions contained therein, and Arena shall have no obligation to honor any additional or conflicting terms unless contained in a written agreement signed by an authorized representative or officer of both parties.