Arrow Enterprise Computing Solutions, Inc. (Arrow ECS) General Terms and Conditions for "as a Service"


Arrow Enterprise Computing Solutions, Inc. (“Arrow ECS”) administers a service exclusively to sell certain Supplier authorized hardware, software, and cloud infrastructure subscriptions as well as other subscription-based Services to resellers or service providers (“You” or “Your”) to Your end-users (“As a Service”). Arrow ECS agrees to sell on a non-exclusive basis, and You agree to purchase, such As a Service from Arrow ECS. The purchase of As a Service and its associated Services is expressly conditioned upon Your acceptance of these General Terms and Conditions for “As a Service” (“Agreement”) and constitutes a legal agreement between You and Arrow ECS. Such acceptance of As a Service shall manifest Your assent to these Agreement terms.

  1. Definitions and Interpretation.

    • 1.1.Definitions. The following terms shall have the meanings provided below:

      • 1.1.1.“Consumption” means an offer whereby invoiced amounts will be based on actual usage in the preceding month and paid monthly in arrears until cancelled. Usage Consumption price is not fixed and may change during the Service subscription period as defined from the Supplier of the Service;

      • 1.1.2.“Intellectual Property Rights” means (i) patents, designs, trademarks and trade names, copyright and related rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights in the world which currently exist or are recognized in the future; and (iii) applications, extensions, and renewals in relation to any such rights;

      • 1.1.3.“Marks” means all worldwide proprietary indications, trademarks, trade names, service marks, symbols, logos and/or brand names;

      • 1.1.4.“Supplier” means the supplier(s) providing the Services for sale through Arrow ECS;

      • 1.1.5.“Services” may include hardware, software, and cloud infrastructure subscriptions as well as other subscription based services;

      • 1.1.6.“SW Licenses” means all software Services provided by the Suppliers for sale through Arrow ECS;

      • 1.1.7.“Territory” means North America.

    • 1.2.Interpretation.

      • 1.2.1.The Section headings are for convenience only and shall not affect the interpretation of these terms and conditions.

      • 1.2.2.References to the singular include the plural and vice versa, and references to one gender include the other gender.

      • 1.2.3.Any reference to a statute, statutory provision, or subordinate legislation (together “legislation”) shall (except where the context otherwise requires) (i) be deemed to include any laws, licenses, statutory instruments, rules, regulations, orders, notices, directions, consents, or permissions made under that legislation and (ii) shall be construed as referring to any legislation which replaces, re-enacts, amends, or consolidates such legislation (with or without modification) at any time.

  2. Conditions of Access to SW Licenses. You shall provide certain information and accept these terms and conditions; and You certify that information provided is up-to-date and materially accurate, notably that You are duly authorized to represent the legal entity.

  3. Your Account.

    • 3.1.You are responsible for maintaining and promptly updating Your account information with Arrow ECS for adequacy, accuracy and completeness and keeping such information.

    • 3.2.You undertake You will not provide any false information or create an account for any other entity than the one You represent.

    • 3.3.Any breaches of the provisions of this Section 3 by You shall entitle Arrow ECS to terminate this Agreement immediately without prejudice to any damages Arrow ECS could claim against You hereunder.

    • 3.4.Any Supplier specific agreement which You must execute and deliver as a condition to purchasing and/or reselling As a Service through Arrow ECS Supplier services related to As a Service to Your end-users (“Supplier Program Agreement(s)”), necessary to support the business transactions will be provided to Your end users from the applicable Supplier.

    • 3.5.Your end user shall complete, sign, and return to Supplier the Supplier Program Agreement as well as respect all process or requirements, such as on-line click to accept, required by the Supplier Program Agreement.

    • 3.6.Your acceptance of As a Service takes effect upon execution of the Supplier Program Agreement with Supplier and Arrow ECS’ subsequent receipt of end user reports and invoices from Supplier.

    • 3.7.If a usage monitoring or metering tool is required as outlined in the Supplier Program Agreement, You agree to use the most current version of the usage monitoring or metering tool.

  4. Supplier Usage Report.

    • 4.1.Once reconciled, Usage Reports are the basis of the invoice sent by Arrow ECS to You.

    • 4.2.Supplier will provide Arrow ECS at the beginning of each month with a report consolidating Your end user’s monthly use of the Services for the preceding month (the “Usage Report”). On this basis, Arrow ECS will bill You based upon the Supplier’s invoice to Arrow ECS. In turn, You shall be deemed to have submitted a corresponding order for such Services to Arrow. Arrow shall accordingly invoice You for the applicable Consumption price and You shall pay the same in accordance with the payment terms stated on the invoice.

    • 4.3.Notwithstanding Section 5.1.5 below, in no circumstances will Arrow ECS be responsible for any mistakes in invoices due to false information communicated by Supplier at the moment of creation of a Usage Report.

  5. Pricing and Payment.

    • 5.1.Principle.

      • 5.1.1.The actual prices Arrow ECS will charge to You for Services purchased are defined in each Supplier Program Agreement.

      • 5.1.2.If under a Consumption-based pricing model, You will pay in accordance with each Service purchased as defined by the Supplier Program Agreement as the Service is consumed.

      • 5.1.3.Unless otherwise stated, prices are expressed in U.S. Dollars. Prices are without taxes and shall be increased by any sales, use, value added or other applicable taxes.

      • 5.1.4.Payments shall be made within thirty (30) days of the date of the invoice in the currency indicated on the invoice. Arrow ECS may invoice You for As a Service on a monthly basis in arrears based on Your usage as measured by the Supplier of the Service.

      • 5.1.5.In the event that You dispute any payment under these terms and conditions, You shall notify Arrow ECS in writing within fourteen (14) days of the date of the Arrow ECS invoice. After such period, any disputed payment will be deemed correct, and You waive Your rights to dispute the payment. Full payment of the disputed invoice is still due per the payment terms. The disputed amount will be determined through dispute process, and You will receive any credit owed within 30 days of dispute validation. You agree to pay Arrow ECS all fees without set-off, deduction, withholding, restriction or condition whatsoever.

    • 5.2.Default of Payment; Non-payment.

      • 5.2.1.You must pay Arrow ECS the fees for the As a Service under these terms and conditions as such sums fall due, irrespective of whether You have received payment from Your end-user. If you fail to pay any sum due, within thirty (30) days from the date of the invoice, Arrow ECS will be entitled to charge interest at the monthly rate of 1.5%, accrued from the date that such payment(s) was otherwise due.

      • 5.2.2.Pursuant to Section 18 below, Arrow ECS may also transfer Your As a Service transactions to another reseller.

  6. Warranties.



    • 6.3.You warrant that You have the authority to enter into this Agreement and that You will comply with all legal and regulatory requirements affecting its activities.

    • 6.4.Arrow ECS does not make any representations or warranties with respect to any Services provided by Suppliers which for the avoidance of doubt are governed by the As a Service and the Supplier Program Agreements. Suppliers shall have sole responsibility for the supply and service level of any related software or services in accordance with any Supplier Program Agreements, end user license agreements, service level agreements, policies or procedures or other agreements or documents provided by Suppliers. In the event of claims and proceedings brought by any end-user against You in connection with or as a result of the providing of SW Licenses, You shall directly inform without any delay the Supplier(s). You shall provide all documentation of the As a Service to Your end-users. You shall ensure that end users review the documentation of by any applicable Supplier Agreements or end user license agreements.

    • 6.5.You shall make the latest version of any applicable Supplier Agreements (e.g., end user agreements or service level agreements) available to end-users and obtain evidence of the end-user’s acceptance of the Supplier’s terms and conditions, policies, or relevant disclaimers during the ordering process for the Services. You shall be responsible for having appropriate agreements in place with end-users with terms and conditions that are no less protective of Arrow ECS’ and the Supplier’s interests than the terms contained in this Agreement and the Supplier Program Agreement. Without limiting the generality of the foregoing, You shall include provisions in each agreement with end-users to the effect that each end-user (i) represents and warrants that such end-user’s use of the As a Service will, at all times, comply with the applicable agreements of Supplier provided by Suppliers; and (ii) acknowledges and agrees that such end- user’s exclusive remedy for any and all costs or damages arising out of, or relating to, use of the SW Licenses, is not against Arrow ECS.

    • 6.6.You acknowledge and agree that the selling of available Services may be subject to authorization or certification by the Suppliers. You undertake, before publishing any offers of the As a Service subject to an authorization or certification, to obtain the express and written consent of the Supplier. Such authorization or certification may be obtained through Arrow ECS, acting on behalf of the Suppliers, or directly from the Suppliers. In the event that the authorization or certification has been obtained through Arrow ECS, You acknowledge and agree that, upon request from the Suppliers, Arrow ECS shall disclose to the Suppliers any relevant evidence of the authorization or certification given to You. In the event that the authorization or certification has been obtained directly from the Suppliers, You agree that Arrow ECS shall be entitled to verify that You comply with Your obligations arising under this paragraph. Upon Arrow ECS’ request, You shall provide Arrow ECS within three (3) days of such request with a copy of any document proving the obtaining of said authorization or certification from the Suppliers. You shall also inform Arrow ECS of any change in Your accreditation level with any Supplier, immediately upon such change. Any cost associated with a change of accreditation level with any Supplier, not immediately disclosed to Arrow ECS, is to be charged to You. Failure by You to provide such documents or to provide proof of the authorization or certification will be considered a material breach of these terms and conditions by You and Arrow ECS shall have the right, at its sole discretion, to immediately terminate, restrict or temporarily suspend the As a Service and related sale of software to You and Your end-users until such time as the relevant proof of the authorization or certification has been received by Arrow ECS.

    • 6.7.You shall: (i) perform any necessary credit checks of end-users; (ii) provide order handling services to end-users including, without limitation, modification and cease orders for end-users; (iii) provide order inquiry services to end users; (iv) address all billing enquiries from end-users; (v) handle returned or disputed invoices relating to end-users; (vi) provide revenue collection and assurance; (vii) provide end-user data retention including, without limitation, end-user invoice copies, billing reports, end- user tax information and documentation; and (viii) provide end-user first level support with respect to the As a Service and related software. In the event that an end-user contacts Arrow ECS or the Suppliers for any first level support with respect to the As a Service or related software, Arrow ECS will be entitled, in its discretion to (A) direct the end-user to You or (B) take such reasonable measures to address the situation in a commercially reasonable manner as Arrow ECS may determine. You shall provide to end-users any service credits that have to be issued by the Suppliers according to the relevant service license agreement. Such service credits will have to be issued to Arrow ECS who will pass them through to You, who, where applicable, will pass them through to the end-user in accordance with the applicable service license agreement. You will use commercially reasonable efforts to market and promote the As a Service and related software to end-users, and will market the As a Service and related software in a professional and ethical manner and always in accordance with these terms and conditions, the Supplier Program Agreements and with each Supplier’s policies. You warrant and represent that You comply with Arrow’s Business Partner Code of Conduct ( Partner Code of Conduct.pdf) or have implemented and abide by a code of conduct that is substantially similar thereto (in such case, You shall provide a copy to Arrow ECS for review upon Arrow ECS’ request).

  7. Liability. You will be liable for breaches of this Agreement arising, from Your acts or omissions or for acts or omissions of Your employees, agents, or subcontractors. You agree to indemnify and hold Arrow ECS, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Your breach of this Agreement or of the applicable law, or an alleged violation of any other rights of a third party.

  8. Limitation of Liability.

    • 8.1.Arrow ECS shall not be held responsible for breaches of this Agreement by a third party. Arrow ECS shall not be liable to You for any indirect economic loss, incidental, consequential loss, or damages arising out of the Arrow ECS’ performance or breach of this Agreement even if it has been advised of the possibility of such damages, including but not limited to:

      • 8.1.1.loss of business profits or contracts;

      • interruption;

      • 8.1.3.loss of the use of money or anticipated savings;

      • 8.1.4.loss of information;

      • 8.1.5.loss of opportunity, goodwill, or reputation;

      • 8.1.6.loss of, damage to or corruption of data;

      • 8.1.7.cost of procurement of substitute goods or services; or

      • 8.1.8.any loss or damage that it not foreseeable; or

      • 8.1.9.any indirect, special, or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

    • 8.2.Each of the sub-paragraphs of the above paragraph shall be deemed to be independent of the others.


    • 8.4.All liability that is not expressly assumed in this Agreement is hereby excluded.

    • 8.5.Both parties acknowledge and agree that the limitations and exclusions of liability set forth herein are reasonable and have been agreed taking into account the commercial value of these terms and conditions to each party and the commercial standing of each party.

  9. Intellectual Property. This Agreement does not assign any Intellectual Property Rights in and to SW Licenses or products purchased. All intellectual property rights owned by either party, prior to any engagement described in this these terms and conditions, shall be retained by such party during and following such engagement. Except as otherwise expressly set forth in this these terms and conditions, nothing contained in this terms and conditions shall operate or be construed to grant any license, by implication, estoppel or otherwise, under any party’s intellectual property rights.

  10. Legal Requirements.

    • 10.1.Arrow ECS may be required to provide personal data to comply with legally mandated reporting, disclosure to a regulator, a court, or to a public body to comply with any regulatory, government or legal requirement.

    • 10.2.You will, at Your own cost and expense, obtain all permits and services necessary for the performance of Your obligations in these terms and conditions and any Supplier Program Agreement, and will comply with all applicable laws, rules, and regulations in the performance thereof, including but not limited to export laws and regulations of the United States, anti- bribery acts, foreign corrupt practices acts, data protection, etc.

  11. Confidentiality.

    • 11.1.Each party agrees to consider as strictly confidential, and to treat them as such, information and documents, in particular the technical, business, financial information and documents, exchanged between them or collected, whatever their nature and media, within the Services supplied under these terms and conditions.

    • 11.2.The following information of each party will not be considered as confidential:

      • 11.2.1.information publicly available prior its disclosure to the other party;

      • 11.2.2.information publicly available otherwise than as a result of an act or omission of the other party;

      • 11.2.3.information disclosed to the other party by a third party not subject to a confidentiality obligation, or who would not have acted in violation of an agreement with that third party.

    • 11.3.The parties agree not to disclose or let any third party whatsoever disclose directly or through an intermediary all or part of the documents and information of the other party it may have knowledge of.

    • 11.4.In the latter case, the party concerned undertakes to take all relevant measures so that said employees and/or subcontractors comply with this confidentiality obligation in the same conditions as those laid down in these terms and conditions.

    • 11.5.The parties agree not to use the documents and information so exchanged in a context other than for the purposes and for the performance of these terms and conditions without the prior express consent of the other party.

    • 11.6.Each party agrees to return to the other if it so requests any document or other media that the disclosing party has delivered to the receiving party in the course of performance of these terms and conditions; these documents and information remain the property of the disclosing party; without the receiving party being able to keep any copy or reproduction thereof, except to the extent it is legally required to keep it for a longer period in which case such return shall occur at the end of such period.

    • 11.7.Neither party shall without the prior written consent of the other party divulge any part of the other party's confidential information to any person except:

      • their own employees and then only to those employees who need to know the same; or

      • either party’s auditors, applicable fiscal authorities, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the other party and then only in pursuance of such right duty or obligation.

  12. Termination.

    • 12.1.Termination for Breach of Obligations.

      • 12.1.1.Either party shall be entitled to immediately terminate this Agreement by written notice if the other party commits a material breach of any terms of these terms and conditions and (in the case of a remediable breach) fails to remedy the breach within thirty (30) calendar days of being requested by written notice so to do.

      • 12.1.2.Arrow ECS shall be entitled to immediately terminate this Agreement for non-payment. Arrow ECS may also elect to switch the affected end user to another reseller partner or Arrow in the event of non-payment by You.

    • 12.2.Termination for Convenience.

      • 12.2.1.If Arrow ECS elects to terminate this Agreement for convenience, we will send You an email with an effective date of one (1) month from the last day of notification of the termination.

    • 12.3.Effect of Termination.

      • 12.3.1.The termination of this Agreement for whatever cause shall not affect any provision of these terms and conditions which is expressed or by implication intended to survive or operate in the event of termination of this Agreement.

      • 12.3.2.Upon the termination of this Agreement, You shall have no right to any compensation for the termination and You remain bound by the provisions of any Services being received from Arrow ECS through a Supplier Program Agreement until the end of the then current term of the applicable Service.

      • 12.3.3.If Arrow ECS terminates for the breach of Your obligations or if You terminate for convenience, You shall pay the entire periodical subscription fee for the As a Service corresponding for the whole period during which termination is notified, even if the termination is effective before the end of that period.

      • 12.3.4.In the event of termination of any Service before the expiration of its Term, You will be responsible to pay Early Termination Fees that Arrow ECS may incur from the Supplier, including the outstanding billing on a Service.

      • 12.3.5.All liabilities for You arising out of any termination in accordance with this Section shall be finally settled upon the full payment of Arrow ECS’ final invoice, which shall include any outstanding Consumption-based charges.

  13. Force Majeure. Neither party will be liable for any breach of this Agreement due to any cause beyond that party’s reasonable control including, but not limited to Act of God; insurrection or civil disorder; war or military operations; national or local emergency; act or omission of Government, fire, explosion, flood or the act or omission of any party for whom the party affected is not responsible and which is beyond the affected party's reasonable control (including network or internet failures) (“force majeure”). If either party is prevented from or delayed in performing any of its obligations under these terms and conditions by a force majeure event, such party will promptly notify the other party.

  14. Certification. To the extent applicable, You (and Your subcontractors, as applicable) shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

  15. Non Waiver. The failure of a party to exercise or enforce any right under these terms and conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.

  16. Trademarks. Neither party may use the other party’s patents, trademarks, trade names, service marks or logos without the prior written consent of the other party.

  17. Independence of the Parties

    • 17.1.The parties acknowledge that they each act for their own account as independent contractors and shall not be considered as the agent of the other.

    • 17.2.Nothing in these terms and conditions is intended to constitute a partnership, franchise, joint venture, or agency relationship.

    • 17.3.Neither party may contract for and on behalf of the other.

    • 17.4.Furthermore, each of the parties remains solely responsible for its acts, assertions, commitments, services, products, and personnel.

  18. Assignment.

    • 18.1.Arrow ECS shall have the right to assign, transfer and otherwise delegate all or any of its rights and obligations hereunder to an affiliated company of Arrow Electronics, Inc. or to any other company.

    • 18.2.You shall not assign or otherwise transfer all or any of Your rights and obligations under these terms and conditions without Arrow ECS’s prior written consent.

  19. Severability.

    • 19.1.If one or more provisions of these terms and conditions were to be held invalid or so declared by a law, a regulation or a final decision having res judicata effect rendered by a court having proper jurisdiction, the other provisions shall remain in full force and effect.

    • 19.2.The parties agree to substitute for any such invalid, illegal, or unenforceable provision a new provision which serves the purpose of the invalid provision to the furthest possible extent.

  20. Entire Agreement. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitute the entire agreement between the parties relating to the subject matter of these terms and conditions. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into these terms and conditions. No additional or conflicting terms in any acknowledgement, invoice, purchase order or other document issued by You shall be applicable unless agreed to in a signed writing by Arrow ECS.

  21. Proof of Agreement. The acceptance of these terms and conditions by electronic means has, between the parties, the same evidentiary weight as a paper document.

  22. Notices.

    • 22.1.Any notice given under these terms and conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being its last known address, or by sending it by email to the email address notified by the relevant party to the other party.

    • 22.2.Any such notice shall be deemed to have been received:

      • 22.2.1.if delivered personally, at the time of delivery;

      • the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and

      • the case of email, at the time of transmission.

    • 22.3.In proving such service, it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre- paid recorded delivery or registered post or that the notice was transmitted by fax to the fax number or by email to the email address of the relevant party.

  23. Governing Law and Jurisdiction.

    • 23.1.This Agreement and any disputes or claims arising out of or in connection with them or their subject matter or formation are governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws principles.

    • 23.2.The parties irrevocably agree that courts in the State of New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms and conditions or their subject matter or formation.

Version: CUST-CON-020vA published June 21, 2021


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