Arena SaaS Subscription License Terms

These SaaS Subscription License Terms (together with any Order Form(s), the “Agreement”) constitute a binding agreement by and between Stationfy, Inc., including Arena.im brand (collectively “Arena”), and the customer (“Customer”) listed on any order form or similar document entered into online or otherwise between the parties (each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”).

WHEREAS, Arena develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”); and

WHEREAS, Customer would like to subscribe to and access the Service;

NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows: 

  • Service License Grant. Subject to the terms and conditions of this Agreement, Arena hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Term, solely by the number of authorized users as set forth on the applicable Order Form, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”).
  • Consulting Services. If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Arena may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service.  Consulting Services may include, without limitation, installation services and/or training. Unless otherwise mutually agreed in the applicable SOW or Order Form, all Consulting Services will be paid for and performed on a time and materials basis, at Arena’s standard hourly rates. Customer shall reimburse Arena for actual and reasonable travel and travel-related expenses incurred by Arena in connection with the Services or any Consulting Services provided hereunder.

2.     Proprietary Rights.

2.1.    Customer Data.  Arena acknowledges and agrees that Customer shall own all title to and ownership of the Customer Data (defined below) and that Arena shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Arena’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of this Agreement, which Customer may input into the Service. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Service, which shall be considered Arena Data (defined below).  If and to the extent necessary for operation of the Service by Customer, Customer hereby grants to Arena a limited, non-exclusive license, during the Term, to use the Customer Data within the Service in order to perform its obligations herein.

2.2.    Arena Technology.  Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Arena owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Arena Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Arena Technology”). Subject only to Section 2.1 above, Arena shall own all rights to any data in and/or derived from the Service, including all data Arena incorporated therein, and all usage data, statistical data or aggregated data collected (collectively, “Arena Data”). Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Arena, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Arena Technology.

3.     Fees; Payment Terms. Customer shall pay to Arena in immediately available US dollars, the applicable subscription and other fees in the amounts and timing as specified in any Order Form (the “Fees”).  If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement.  The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars and shall be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. Arena may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional Services or purchase additional equipment or consulting), but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using your account.

4.     Term; Termination. The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Arena or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Arena that Customer has complied with these requirements; (c) Arena shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 – 10.

5.     Warranty. Arena warrants to Customer that, during the Term, the Service shall operate in substantial conformity with the Documentation, and that the Consulting Services, if any, will be performed in a professional and workmanlike manner. The foregoing warranty shall not apply if the non-conformance is not replicable or results from third party systems or components used by Customer to access the Service, including any lack of interoperability with such third party systems or components. Arena does not warrant that operation of or access to the Service will be uninterrupted or error-free, or that all reported defects will be corrected. Arena’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Arena’s sole discretion, to (i) use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity, or (ii) terminate this Agreement and refund to Customer the that portion of any prepaid Fee associated with any unused balance of the Term. Arena shall have no obligation with respect to a warranty claim unless notified of such claim promptly and within the Term. Customer is solely responsible for maintaining its own connectivity and connection to the Service via any necessary hardware, software, telecommunications and internet connections, at its own cost and expense, and Arena is not responsible for any interruptions thereto, and Customer expressly agrees that Arena shall not be liable in any manner for any interruption in or failure of access to the Service, nor shall any such interruption or failure of access be deemed a breach of the terms of this Agreement.  If and to the extent the Service includes, integrates or links to any third party content, data or software (“Third Party Content”), Customer acknowledges and agrees that (a) Arena is not responsible for any Third Party Content and it is provided as is; and (b) any Third Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc., for which Customer shall be responsible for agreeing to and complying with. Without limiting the generality of the foregoing, Arena is not responsible for end user error, errors in inputs or for errors in any Customer Data; Arena does not independently verify the truthfulness or accuracy of any data or content input into the Service and is not responsible for the fraud, misrepresentation, negligence or misconduct of any end user or other third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICE IS PROVIDED “AS IS”.  ARENA EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY USAGE OF TRADE OR CUSTOM OF DEALING AND DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.

6.     Third Party Claim Defense and Indemnification.

6.1  Intellectual Property Infringement. Arena shall (a) indemnify and hold Arena harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of any third party claim that the Service infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer providing Arena with: (i) prompt notice of such claim (and in any event notice in sufficient time for Arena to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Arena at Arena’s expense. If Customer’s use of the Service is, or in Arena’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Arena may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term.  The foregoing defense and indemnification obligations of Arena shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Services, use or combination of the Service with other non-Arena products, services, hardware, software or processes, or any unauthorized use of the Service.  In addition, Arena’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 7 below and shall be capped at and included within any calculation of direct damages under that Section.  THIS SECTION 6 SETS FORTH ARENA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, OR ANY CONSULTING SERVICES.

6.2   Customer Indemnification Obligations.  Customer shall indemnify and hold Arena harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Service, or otherwise provided, by or on behalf of Customer; (iii) any actual or alleged non-compliance by Customer with applicable laws, rules and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including without limitation any breach of the scope of the license granted herein; or (v) Customer’s violation of Arena’s intellectual property rights, including without limitation any violation of Sections 2 or 9.1.

7.     Limitation of Damages. EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF SECTIONS 2, 8 OR 9 HEREOF, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM (IN ADDITION TO ANY FEES PAID BY CUSTOMER).  ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, ARENA DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE.  Customer is responsible for all use of the Services AND by all end users, including, without limitation, as applicable, any employees, agents and customers. Customer is responsible for communicating the terms and limitations in this Agreement to any and all such end users, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON ARENA’S LIABILITY. Customer may use the Services for informational purposes only, as an aid, but only as one information source among many, and not as the sole basis for making any decisions; Customer must use proper due diligence and use its own business judgment when making any decisions based on any information, analytics or reports derived from the Services.

8.     Confidentiality.

8.1.    Confidential Information.  Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Arena. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder.  The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.

8.2.    Return of Confidential Information.  Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification  of its compliance with the terms of this Section.

8.3.    Remedies.  Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.

9.        License Restrictions.

9.1       Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Service, or software or create any derivative works thereof; or (c) use the Service on behalf of any third party or for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Arena’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the software or on any copies made in accordance with this Agreement; (i) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Arena’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Service, or Documentation, or on any copies made in accordance with this Agreement; (j) use, or authorize or permit the use of, the Service except as expressly permitted herein; (k) use the Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party. The Service may be used only by Customer (i) for its internal business purposes and only for the direct benefit of Customer; (ii) only by the number of persons for whom a license fee has been paid, and all such use may only be by those persons using the Service for the benefit of Customer in the course and scope of their employment, subject to the terms hereof; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws and in compliance with all Documentation and instructions provided by Arena.  In order to access some features of the Service, Customer may have to register or create an account. Customer may never use another’s account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Arena immediately of any breach of security or unauthorized use of its account.  Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein.  To the extent the Service allows uploading or posting of content or data, you will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights.

9.2.      Evaluation License.  If the Service is licensed or leased on an evaluation trial basis, the term of such license or lease is thirty (30) days from the earlier of installation (if applicable) or first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Service is intended solely for Customer to determine the compatibility of the Service with Customer’s business needs, and only to be used in a non-production test environment. Arena has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period, and any Service provided for evaluation or beta purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein.

9.3        Third Party APIs. The Services may integrate and/or interact with third party services, such as via APIs or browser extensions. For example, the Services may leverage APIs from third parties, and/or rely on third party browser extensions, and Arena has no affiliation, association, endorsement, or sponsorship by any other third party services with which it integrates or interacts from time to time (collectively, “Third Party Services”). Arena makes no claim, representation or warranty of any kind, type or nature concerning any Third Party Services, nor Customer’s or any end user’s use of or compliance with any third party terms of service for any such Third Party Services (collectively, “Third Party Terms”). It shall be Customer’s and end users’ sole responsibility to analyze and interpret any applicable Third Party Terms and comply therewith. Each such user is solely responsible for their interpretation of Third Party Terms and their actions relevant to compliance thereof. By using the Services, Customer hereby releases Arena and waives any and all claims or claim rights that it may have against Arena, and releases and indemnifies Arena against any claims that any third party may have against Customer or end users, including with respect to use of any Third Party Services, including if accessed or used via our Services, and with respect to Third Party Terms, applicable privacy policies or any other rules or regulations of such third parties. Without limiting the generality of the foregoing, Arena may elect, in our discretion, to utilize social logins, allowing you to login to the Services via other third party authentication services, such as (without limitation) Facebook, Twitter, LinkedIn, Google, or other account credentials. Customer understands that these are Third Party Services, and this in no way creates and endorsement of, by or from Arena to them or vice versa, that Arena is not responsible for such third party logins, systems or data, and that by using such third party logins, Customer may be subject to their respective privacy policies and other terms of use. Arena is not responsible for any failure or inability to integrate with such Third Party Services due to factors outside Arena’s control, such as, without limitation, if any Third Party Service changes, blocks, or even eliminates their applicable APIs.

9.4        DMCA notice. Since we respect artist and content owner rights, it is Arena’ policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Arena’ copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

  • An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  • Identification of the copyrighted work that you claim has been infringed;
  • Identification of the material that is claimed to be infringing and where it is located on the Service;
  • Information reasonably sufficient to permit Arena to contact you, such as your address, telephone number, and, e-mail address;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
  • A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice Arena

Address: 2443 Fillmore St #380-5512 San Francisco, CA 94115

Telephone: N/A Fax: N/A Email: [email protected]

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying Arena and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Arena rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Arena has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Arena may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

9.5     Third-Party Links. The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Arena. Arena does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the Service, you do so at your own risk, and you understand that these Terms and Arena’ Privacy Policy do not apply to your use of such sites. You expressly relieve Arena from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Arena shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

10.     General.

10.1.         Notices.  All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section.

10.2.         Assignment.  Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Arena.  Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.  The Services shall at all times be hosted by or on behalf of Arena on a server environment of its’ choosing. Arena reserves the right to change the server environment from time to time as it may deem fit, or outsource hosting or other aspects of the Service in its sole discretion, so long as the Service continues to comply with the express requirements of this Agreement

10.3.         Publicity.  Customer expressly grants Arena the right to include Customer in a list of customers on Arena’s website or other promotional material in relation to the Services for marketing purposes. Customer can deny Arena this right at any time by submitting a written notice, requesting to be excluded from promotional material.

10.4.         Waiver.  A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.

10.5.         Force Majeure.  Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.

10.6.         Entire Agreement; Construction.  This Agreement and its Exhibits and Schedules, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement.  The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.

10.7.         Independent Contractors.  The relationship of Arena and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.

10.8.         Non-Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Arena or (ii) hire or engage for any services any person employed by Arena. In the event of a breach of this non-solicitation clause, Customer agrees to pay Arena compensation equal to Arena’s employee’s annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Arena.

10.9.         Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the State of California without regard to conflict of laws provisions. The federal and state courts sitting in Sunnyvale, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

10.10.      Modifications to Software, Products and Services. We reserve the right to modify or discontinue the Services or any other software, products or services at any time with or without notice to you, including without limitation by adding or subtracting features and functionality, third party content, etc.  In the event of such modification or discontinuation, your sole remedy shall be to terminate this Agreement as set forth herein.  Continued use of any software, products or services following any such changes will indicate your acknowledgement and acceptance of such changes and satisfaction with the software, products and/or services as so modified.

10.11.     Modifications to Terms.  We may change the terms of this Agreement from time to time, by updating these terms as posted online and/or in the applicable software. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If you object to any such changes, your sole recourse will be to terminate this Agreement. Continued use of the software, products or services following such changes will indicate your acknowledgement of such changes and agreement to be bound by such changes.

Last Updated May 22, 2018.  Arena reserves the right to update these terms from time to time.