Operator Collaboration Terms & Conditions

The Terms and Conditions of Use, as updated by ArrowStream from time to time, govern your use of this web site.

Last updated: May 1, 2019

These Operator Collaboration Terms and Conditions (together with any order form, if any, issued hereunder, the “Agreement”) are between ArrowStream Software, LLC, a Delaware limited liability company, with an address at 141 W Jackson Blvd Suite 1310A, Chicago, IL 60604 (“ArrowStream”), and means the person or entity using the Subscription Service (defined below) and identified in the applicable account record, billing statement, online subscription process, or order form as the customer (“Subscriber”).

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” OR “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.

ArrowStream and Subscriber agree as follows:

1. BACKGROUND. ArrowStream provides a cloud-based software and service solution designed specifically for the foodservice industry (“ArrowStream Platform”). Subject to the terms and conditions of this Agreement, Subscriber is provided access to its supplier account on the ArrowStream Platform (“Operator Collaboration Portal” or “OC Portal”) to enable Subscriber to collaborate with and market to ArrowStream clients by responding to RFPs issued by the ArrowStream clients, updating product pricing for items Customer sells to ArrowStream clients, responding to food quality issues logged by ArrowStream clients and to customize Customer’s supplier directory profile that is viewed by ArrowStream Clients. Access to the OC Portal, in addition to the collaboration and marketing tools that Subscriber has subscribed to or that ArrowStream otherwise makes available to Subscriber from time to time, and are developed, operated, and maintained by ArrowStream, and any ancillary products and services, are herein referred to as the “Subscription Service”.
2. SUBSCRIPTION SERVICE.
   1. Right to Access. Subject to the terms and conditions of this Agreement, ArrowStream grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Subscription Service solely as set forth in this Agreement. For purposes of this Agreement, an “Authorized User” is means Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for Subscriber’s benefit and have unique user identifications and passwords for the Subscription Service.
   2. Account Set Up and Access. Any user seeking access to the Subscription Service will be required to provide certain background and contact information such as the individual’s email address, company name, name, title and phone number and will create a password to access the Subscription Service. Customer shall be responsible for all use of the Subscription Service and Content, including without limitation, the acts and omissions of its Authorized Users and payment of Subscription Fees.
   3. Customer Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Subscription Service, including without limitation all Subscriber Content (as defined below). All Content created through or submitted to the Subscription Service by or through Subscriber (collectively “Subscriber Content”) is the sole responsibility of Subscriber. Subscriber acknowledges and agrees that ArrowStream will not assume any, and hereby disclaims all, responsibility and liability for Subscriber Content and any modifications thereto. Subscriber hereby grants ArrowStream a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Subscriber Content in connection with providing (1) the Subscription Service or (2) for purposes of creating and publishing anonymized market analyses, indexes, benchmarks or reports, or (3) for any other commercial purposes where the Subscriber Content is aggregated and anonymized. ArrowStream, without notice, review, edit and delete any Subscriber Content that ArrowStream determines in good faith violate the terms of this Agreement, provided that, ArrowStream has no duty to prescreen, control, monitor or edit Subscriber Content.
   4. Reserved Rights. ArrowStream reserves the right to modify or discontinue any part of the Subscription Service at any time by giving thirty (30) days’ prior written notice to Subscriber, provided that in the event such modification or discontinuance materially reduces the functionality of the Subscription Service, Subscriber may terminate this Agreement upon at least thirty (30) days’ prior written notice.
   5. Service Support. ArrowStream will provide Subscriber with online training and support materials for Subscriber’s use of the Subscription Service.
   6. Third Party Sites. The Subscription Service or ArrowStream Content may include links to other internet sites. Subscriber acknowledges and agrees that such links are provided for its convenience and do not reflect any endorsement by ArrowStream with respect to the provider of such linked site or the linked site. SUBSCRIBER’S USE OF ANY LINKED SITE IS SOLELY AT SUBSCRIBER’S OWN RISK. ARROWSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITE.
   7. No Sensitive Information. Subscriber agrees not to use the Subscription Service to collect, manage or process sensitive information. ArrowStream will not have any liability that may result from Subscriber’s use of the Subscription Service to collect, manage or process sensitive information. For purposes hereof, “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information.
3. USE RESTRICTIONS. Subscriber is responsible for respecting ArrowStream’s and third parties’ rights with respect to content that appears on the Subscription Service and may not download, email or otherwise transmit such content in violation of ArrowStream’s and third parties’ rights. Except as expressly permitted in this Agreement, Subscriber shall not directly or indirectly (a) use any of ArrowStream’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Subscription Service, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Subscription Service or ArrowStream Platform, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Subscription Service in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Subscription Service or ArrowStream Platform, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) interfere or attempt to interfere with the proper working of the Subscription Service or ArrowStream Platform or any activities conducted thereon, (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Subscription Service or ArrowStream Platform, (h) use or exploit any portion of the Subscription Service or ArrowStream Platform to provide any commercial services to third parties, or (i) permit any Authorized User or third party to engage in any of the foregoing prohibited acts.
4. TERM; SUSPENSION; TERMINATION
   1. Subscription. Unless otherwise specified or terminated as provided herein, the “Subscription Term” shall commence on the date Subscriber is provided access to the Subscription Service (the “Effective Date”) and shall continue for one (1) year from the Effective Date. The Subscription Term shall automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then current term.
   2. Suspension of Subscription Service. ArrowStream may suspend Subscriber’s and any Authorized User’s access to any or all Subscription Service without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading inaccurate or misleading material, or material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity or that breach the Use Restrictions in Section 3. Nothing in this clause limits ArrowStream’s right to terminate for cause as outlined below, if ArrowStream determines that Subscriber or its Authorized Users are acting, or have acted, in a way that has or may negatively reflect on or affect ArrowStream or its Subscribers. ArrowStream may suspend, limit, or terminate for any reason at any time without notice any Subscription Service that are provided to Subscriber for free or due to inactivity.
   3. Suspension for Non-Payment. Subscriber will be provided with notice of non-payment of any amount due. Unless the full amount has been paid, ArrowStream may suspend Subscriber’s (and that of its Authorized Users) access to any portion of the Subscription Service ten (10) days after such notice.
   4. Termination. This Agreement may be earlier terminated by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment).
   5. Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Section 2 (c) (Content), Section 6 (Confidentiality), Section 7 (Intellectual Property), Section 8 (Limited Warranty and Disclaimers), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 15 (Miscellaneous Provisions) and this Section 4(e) shall survive.
5. PAYMENTS
   1. Subscription Fee. Subscriber shall pay to ArrowStream the fee for the Subscription Service (“Subscription Fee”), as communicated by ArrowStream during the registration process, or at a later time, and in accordance with the terms therein. The Subscription Fee will remain fixed during the then-current term unless Subscriber upgrades products, subscribes to additional features or products, or unless otherwise agreed in an order form. The Subscription Fee is subject to increases at term renewal.
   2. Payment Method. Unless otherwise agreed by ArrowStream, payments for Subscription Fees shall only be made by credit card. Subscriber agrees that the credit card details provided by Subscriber for use of the Subscription Service is correct and accurate and that the Subscriber shall not use a credit card that is not lawfully owned by Subscriber or the use of which is not authorized by the lawful owner thereof. Subscriber further agrees and undertakes to provide correct and valid credit card details. Subscriber warrants, agrees and confirms that when Subscriber initiates a payment transaction and provides card details, Subscriber fully and lawfully entitled to use such credit card for such transactions; Subscriber is responsible to ensure that the card details provided are accurate; Subscriber authorizes debit of the nominated card for the payment of Subscription Fees; and Subscriber is responsible to ensure that sufficient credit is available on the nominated card at the time of making the payment to permit the payment of Subscription Fees.
   3. Late Fee. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less.
   4. Taxes. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Subscriber agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon ArrowStream’s net income.
6. CONFIDENTIALITY
   1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the ArrowStream Platform and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Subscriber through the Subscription Service (other than Subscriber Content) shall be considered ArrowStream’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
   2. Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors.
   3. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
   4. Remedies. Each party agrees that, in the event of any breach or threatened breach of this Section 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
7. INTELLECTUAL PROPERTY
   1. Proprietary Rights. The Subscription Service, ArrowStream Platform and all Content therein (excluding Subscriber Content), such Content is referred to herein as “ArrowStream Content”) are owned by ArrowStream and third parties and are protected by the United States Copyright Act of 1976, as amended, and the copyright laws of other countries. Certain materials are used by permission of their respective owners. Subject to the limited rights and licenses expressly granted hereunder, ArrowStream (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the, all ArrowStream Content, all ArrowStream trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. “ArrowStream” is a trademark owned by ArrowStream. Other trademarks are used with the permission of their respective owners. Subscriber agrees not to use or display trademarks without the prior written consent of ArrowStream or the owner of such mark. ArrowStream Content may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without the prior written permission of ArrowStream. Modification or use of the ArrowStream Content for any other purpose is a violation of the rights of ArrowStream, or third parties.
   2. Subscriber Content. Subject to the rights and licenses expressly granted hereunder, Subscriber shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Subscriber Content.
   3. Feedback. All Subscriber suggestions for correction, change or modification to the Subscription Service and other feedback, information and reports provided to ArrowStream hereunder, will be the property of ArrowStream, and Subscriber shall and hereby does assign any rights in such communications to ArrowStream.
8. LIMITED WARRANTY AND DISCLAIMERS
   1. General. Each party represents and warrants that: (i) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is legally binding upon it and enforceable in accordance with its terms; (iii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (iv) it will perform its obligations hereunder in accordance with all applicable laws.
   2. Subscriber. Subscriber represents and warrants that (i) Subscriber has all rights to grant the licenses to ArrowStream set forth herein, including without limitation to Subscriber Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (ii) Subscriber shall not make available through the Subscription Service any Content that is inaccurate, misleading, disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.
   3. Specific Limitations. ArrowStream will not be responsible or liable for any failures in the Subscription Service or any other problems which are related to (a) the Subscriber Content (b) scheduled maintenance of the OC Portal or ArrowStream Platform, (c) any unavailability caused by circumstances outside of ArrowStream’s control such as force majeure, Internet service provider failure or delay, or denial of service attacks, (d) Subscriber’s equipment malfunctions, or (e) Subscriber’s or any third party’s products, services, negligence, acts or omissions.
   4. Disclaimer. ACCESS TO THE SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFIED IN THIS SECTION 8, ARROWSTREAM EXPRESSLY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBSCRIPTION SERVICE OR ONDEMAND SYSTEM WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ARROWSTREAM MAKES NO WARRANTY THAT THE SUBSCRIPTION SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED BY USE OF THE SUBSCRIPTION SERVICE WILL BE ACCURATE OR RELIABLE.
   5. Subscriber agrees to defend against and hold ArrowStream harmless from any claim by a third party that arises from or is related to (a) any Subscriber Content, (b) Subscriber’s use of the Subscription Service in violation of this Agreement, and to indemnify ArrowStream for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of such claims. Any claim for indemnification hereunder requires that Subscriber provide prompt written notice of the claim to ArrowStream and reasonable cooperation, information, and assistance in connection therewith, and Subscriber shall have sole control and authority to defend, settle or compromise such claim. Subscriber shall not make any settlement that requires a materially adverse act or admission by ArrowStream without ArrowStream’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). ArrowStream shall not be liable for any settlement made without its prior written consent.
9. LIMITATIONS OF LIABILITY. ARROWSTREAM AND ITS LICENSORS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL BE NOT BE LIABLE TO SUBSCRIBER, NOR TO ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY SPECIAL INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, SAVINGS OR REVENUE OR THE USE OR INABILITY TO USE THE SUBSCRIPTION SERVICE, THE OPERATOR COLLABORATION PORTAL, THE ONDEMAND SYSTEM, OR OTHER SERVICE AND/OR ANY OUTPUT THEREOF, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. Each party’s total liability under this Agreement or breach hereof shall be limited to the annual subscription fees or the aggregate monthly subscription fees actually received by ArrowStream from Subscriber during the twelve (12) months immediately prior to the date on which such claim arose. The limitations in this Section 10 shall not apply to Subscriber’s payment obligations, or a breach by ArrowStream or Subscriber of Section 6 (Intellectual Property) or Section 5 (Confidential Information).
10. GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Illinois and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in Cook County, Illinois, and both parties consent to the jurisdiction of such courts with respect to any such actions.
11. FORCE MAJEURE. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
12. PUBLICITY. Subscriber hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of ArrowStream’s marketing and promotional efforts.
13. NOTICES. All notices under this Agreement will be in writing and delivered to the parties, for ArrowStream, at the address stated herein, and for Subscriber, at such address provided at the time of account registration or renewal, or, in each case, at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by overnight delivery service.
14. MISCELLANEOUS PROVISIONS. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof. There is no agency, partnership or joint venture relationship between any user of the Subscription Service and ArrowStream arising solely through the use of the Subscription Service. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Subscriber without ArrowStream’s written consent. This Agreement is binding on Subscriber’s successors, assigns, heirs and executors. If any provision of the Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. The failure of ArrowStream to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or condition. Any claim or cause of action arising out of or related to the Subscription Service, OnDemand System or the Agreement must be filed within one year after such claim or cause of action arose. The section titles of the Agreement are merely for convenience and will not have any effect on the substantive meaning of this Agreement.
15. AMENDMENT. ArrowStream may update and change any part or all of the Operator Collaboration Terms and Conditions, including the fees and charges associated with the use of the Subscription Service subject to Section 5(a). If ArrowStream updates or changes these Operator Collaboration Terms and Conditions, the updated Operator Collaboration Terms and Conditions will be posted at arrowstream.com/operator-collaboration-terms-and-conditions/. Notifications will be provided via email or notification within the Subscription Service. The updated Operator Collaboration Terms and Conditions will become effective and binding on the next business day after it is posted. When ArrowStream changes the Operator Collaboration Terms and Conditions, the “Last Updated” date above will be updated to reflect the date of the most recent version. If Subscriber does not agree with a modification to the Operator Collaboration Terms, Subscriber shall notify ArrowStream in writing within thirty (30) days after Subscriber receives notice of modification. If Subscriber provides this notice to ArrowStream, Subscriber’s subscription will continue to be governed by the terms and conditions of the Operator Collaboration Terms prior to modification for the remainder of the current term. Upon renewal, the updated or new Operator Collaboration Terms published by ArrowStream will apply.

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