These standard terms and conditions (“STC”) apply to all services (the “Services”) provided to the Client by ARKADIN, Inc. and its Affiliates (collectively referred to as “ARKADIN”), or by a company whose services ARKADIN is allowed to resell (the “Partner”) in consideration of payment based on the charges and fulfillment of the specific conditions set out in the service order form (“SOF”) signed by the Client.
“Affiliate” refers to, now or in the future, with respect to Arkadin, Inc., any other entity that directly controls or is controlled by, or is under common control with Arkadin, Inc. An entity shall be considered as controlling another entity if it owns, or controls, at least fifty (50) percent of the voting stock or other ownership interest of the other entity.
“Services” means the services developed by Arkadin (“Arkadin’s Proprietary Services”) and the services developed and/or supplied by Partners that Arkadin is authorized by the Partners to resell to its clients (the “Arkadin’s Non-Proprietary Services”).
The provision by Arkadin of Arkadin’s Non-Proprietary Services to the Client is subject to Partner’s terms and conditions stated in the applicable STU.
“User(s)” means either an employee, consultant, authorized agent or representative of the Client, who holds an audio and/or web and/or video account and may organize conferences (the “Moderator”) and people who participate in the conference (the “Participant”) equally.
“Content” refers to (i) the shared content of the audio and/or web and/or video conference of whatever nature and medium (ii) the recorded content of the audio and/or web and/or video conference of whatever nature and medium and (iii) any content downloaded by Users in connection with the use of the Services.
The Client may not resell the Services or otherwise generate income from the Services.
1. Creation of Contract
The Contract shall form the entire agreement between the parties, and supersedes any previous agreement relating to its subject matter. In case of any conflict or inconsistency between the STC and the SOF, the STC shall prevail. In any case, the STU prevail on any contradictory terms of any other contractual document concerning the resold Arkadin’s Non-Proprietary Services. By signing the SOF, the Client agrees and acknowledges that Client has read and accepted the STC, SOF and any additional STU if applicable.
The Contract shall not be modified or amended except in writing and shall require the signature of the duly authorized representatives of both parties.
The term of the Contract shall commence on the date when the Services are made available to Client for use (the “Effective Date”) and may apply retroactively to any former testing period of the Services granted to the Client except in case of former signed contract related to the Services. Any additional licenses, products and Services purchased or subscribed by Client after the Effective Date shall be subject to the same terms and conditions set forth in the Contract unless otherwise agreed by the parties.
2. Charges, Invoicing and Methods of Payment
2.1 Charges. The Client shall pay the charges for the Services and equipment as set out in the SOF or in a superseding quotation accepted by the Client. All charges exclude any applicable taxes, customs duties, administrative and process fees, VAT and other regulatory fees which may apply to the Services and/or equipment sale. If equipment is sold, ARKADIN retains title and lien until full payment is made by Client.
In the event that (i) any regulatory agency, legislative body or court creates or imposes regulations, laws or other requirements relating to the Services or equipment or (ii) a third party provider (including Partners) changes tariffs, that result in a significant increase in the costs incurred by Arkadin in providing the Services, Arkadin may increase the charges proportionately. Arkadin will give the Client at least thirty (30) days’ notice in writing of such increase (except for sub-clause (i) above for which Arkadin may shorten this notice period to seven (7) days). The Client will however have the right to terminate the part of the Contract affected by the increase as of the date of the implementation of the new charges, without any penalty, by giving Arkadin written notice within fifteen (15) days from the date of receipt of the notice letter.
2.2 Invoicing. The Services are invoiced electronically or via standard mailing at the Client’s request.
2.3 Methods of payment. The Client shall pay the invoices within thirty (30) days from the date of the invoice. Any invoice not disputed within thirty (30) days of the date of the invoice, shall be considered to have been accepted by the Client.
Overdue balances shall be subject to a service charge at the rate set out in the SOF, or at a rate of one and one-half (1.5%) percent per month, on the amount due on each unpaid invoice and accruing on a daily basis until payment is made. If the Client fails to pay the charges due in a timely manner, ARKADIN may suspend access to Services with prior notification to the Client.
The Client shall be responsible for any expenses, fees or costs incurred by Arkadin in the recovery or collection of any amounts due by the Client under this Contract.
Client shall not be entitled to set off, deduct or otherwise withhold any amount due to ARKADIN under this Contract.
3.1 Unless otherwise stated in the SOF, the initial term of the Contract shall commence on the Effective Date and continue for a period of two (2) years (“Initial Period”). After the Initial Period, the Contract shall automatically renew from year to year (“Renewal Period”) unless one party gives written notice of termination to the other at least two (2) months prior to the end of the Initial Period or Renewal Period.
3.2 Unless otherwise stipulated in the SOF, any license based subscription (i) shall be valid for one (1) year from the Services implementation date (“License Term”); and (ii) shall be automatically renewed for additional one year periods (“License Renewal Term”) unless one party gives written notice to the other at least two (2) months prior to the end of the License Term or any License Renewal Term of their intention to terminate the license.
4. Software License Terms (‘SLT’)
4.1 Notwithstanding any other provision of the Contract, when the Client and/or Users download any software application (except application software based on open source), including any conferencing Add-on software together with any documentation to use the ARKADIN’s Proprietary Services (altogether referred as “Software”), the Client and/or Users are entitled to use the Software insofar as it is necessary for the proper utilization of the Services and only as expressly permitted in this Contract. Arkadin’s Non-Proprietary Services are subject to the SLT contained in the relevant STU.
Without prejudice and subject to any “open source” software license terms, which Arkadin shall communicate to the Client or User before the use of the Services, if applicable, and which terms shall apply independently of the license granted herein, Arkadin grants the Client and/or Users, a worldwide, non-transferable, non-exclusive and personal right to use, in object code form, the Software for the duration of the License Term or, where applicable any License Renewal Term.
All rights, title, ownership rights, and Intellectual Property Rights in the Software are protected by applicable copyright laws or other laws and are held by ARKADIN or its licensors and all are reserved.
The Client shall not (i) try to access to or copy the Software’s source code forms, (ii) use the Software for any purpose other than for use of the Services, (iii) create copies of the Software for any purpose that is not directly related to the Services or make more copies of the Software than allowed by applicable law; (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only to the extent that applicable law expressly permits, despite this limitation), incorporate the Software into any other software or create derivative works based upon the Software; (v) resell, rent, lease or make any commercial use of the Software or transfer the Software or the SLT to any third party; (vi) use the documentation except for internal and reference purposes; (vii) remove any proprietary notices or labels from the Software; (viii) export, re-export, divert or disclose any portion of the Software or any related technical information or materials directly or indirectly, in violation of any applicable export law or regulation; or (ix) make intrusion tests, spread malicious code for deny service attacks.
4.2 The Client understands and agrees that the Software is provided "AS IS", and Arkadin expressly disclaims all warranties of any kind including any warranties of merchantability, fitness for a particular purpose or use.
5. Client’s Obligations
The Client shall:
5.1 provide Arkadin with all the information necessary to supply the Services and give Arkadin written notice of any changes of such information (especially, but without limitation, any change of address, User, and other similar information). The Client shall be solely responsible for any consequences caused by failure or delay in providing or updating such information.
5.2 be responsible for ensuring that its own systems, equipment, and network infrastructure comply with the technical requirements as notified by Arkadin which are necessary to use the Services and prevent the Client from the risk of losing data, files and programs (including taking steps to make regular backups and using antivirus software which is updated regularly).
5.3 only use the Services in accordance with written directions given by Arkadin for better management of the Services or for security purposes.
5.4 provide Content and data in accordance with all applicable local laws and regulations, make all necessary disclosures and obtain any necessary authorizations, before using the Services, regarding the collection, the transmission and use of User’s identifying information by Arkadin and its Partners.
5.5 keep all telephone access numbers, PIN Codes, logins, passwords and personal identification numbers used in connection with the Services confidential and prevent access thereto and generally safeguard such information to ensure that there is no unauthorized use of the Services.
5.6 authorize Arkadin, for the sole purpose of providing the Services, to (i) (if the Moderator or the Client selects the recording or the storage of documents option) host, record the Content and copy the Content on the back up servers; (ii) cache the Content for the duration of the conference (only for the web services) and (iii) display and transmit such Content to the Users.
5.7 be responsible for (i) the use of the Services by the Users; and (ii) the Content and its transmission.
5.8 indemnify and hold Arkadin, its Affiliates, employees, directors, or officers, harmless from and against any and all claims, damages, liabilities and expenses (including reasonable legal fees and expenses) suffered or incurred by Arkadin and Arkadin’s officers and employees (including but not limited to claims, damages, liabilities and expenses which Arkadin has indemnified its Partners) arising out of or related to: (i) the misuse of the Services by the Client or Users, including the use of the Services for illegal, immoral, fraudulent purposes or beyond the scope of the Contract; (ii) the Content; (iii) the disclosure of confidential information made through the use of the Services including the transmission of the Content (such as application sharing, document sharing, file transfer); and (iv) the Client’s or User’s infringement of any Intellectual Property Rights or other rights of any person or entity caused by the use of the Services including the use of any Software.
Arkadin may audit the Client's use of the Services to ensure compliance with the Contract, under conditions to be agreed between the parties.
6. ARKADIN’s Obligations
6.1 provide the Services and perform its obligations with reasonable care and skill in accordance with the standards which are normally provided by a skilled professional firm performing similar services.
The Client recognizes that provision of the Services depends on the reliability, availability and continuity of connections by various third parties and external factors (such as telecom carriers, public internet, Client’s equipment, etc) and Arkadin cannot be liable for a Service interruption outside of its control. Arkadin may be required to reduce or suspend Services for a short period (i) to enable technical or maintenance operations to be improved, upgraded or conducted, (ii) to avoid an imminent threat of material or financial harm to Arkadin or to anyone else, (iii) or in the event of a force majeure. In all such cases, it will use reasonable endeavors to inform the Client and minimize any inconvenience to the Client caused by such reduction or suspension of the Services.
In addition, Arkadin may provide any updates of functionality, features, storage, security, availability and other information relating to software or Services after the commencement date of the Services, subject to any additional terms and conditions provided by Arkadin applicable to such updates. The Client shall be required to comply with such additional terms and conditions.
6.2 make its training services reasonably available to the Client so that the Client is aware of best practices regarding the use of Services and of the security features of the Services.
6.3 ensure that Arkadin’s employees and consultants involved in providing the Services keep the Client’s information confidential.
6.4 ensure that Arkadin’s Proprietary Services comply with the security rules and principles set out in the “Arkadin security white paper” available on the following link: http://terms.arkadin.com/Arkadin-security-white-paper.pdf.
6.5 defend or, at its option, settle any claim or action brought against the Client alleging that the use of any Software (or any part thereof) as provided under the Contract, infringes the intellectual property rights of a third party, to the extent that this infringement claim is not attributable to (i) a use of the Software or the Arkadin Proprietary Service in a manner contrary to the terms and conditions set out in the Contract and the SLT, (ii) Client or User using the Software or Arkadin Proprietary Service in combination with any other software or service not supplied by Arkadin or its Partners, (iii) a modification of or addition to the Software or the Arkadin Proprietary Service at the request of the Client, or (iv) the use of a non-current version of the Software where Arkadin provided the Client with an updated version thereof. The Client (i) shall give Arkadin written notice of such a claim immediately upon becoming aware thereof, (ii) shall cooperate with Arkadin and its counsel in the investigation, trial and defense of such claim and any appeal arising therefrom, (iii) shall not enter into a compromise with the third party which has initiated the claim, and (iv) shall not make any settlement or admission of liability or infringement in respect of such claim. Arkadin directs and controls the defense and, if applicable, settlement of such a claim.
At any time, Arkadin at its option and expense, may (i) secure for the Client a right of continued use, (ii) modify or replace the Software so that it is no longer infringing provided that modification or replacement does not materially affect the performance of the Service, or (iii) terminate the Contract partially or entirely insofar as it related to the infringing Software.
7.1 Nothing in this Contract excludes or limits the liability of one party (i) for death or personal injury resulting from its own negligence or the negligence of its employees or (ii) for fraudulent misrepresentation.
7.2 Subject to Clause 7.1 and to the fullest extent permitted by law, notwithstanding the form (whether in tort, contract, innocent misrepresentation or in any other legal theory) in which any legal action may be brought, in no event will Arkadin be liable for (i) loss of business, revenue, contracts, goodwill, business opportunities, anticipated savings, (ii) loss or corruption of data or information, (iii) any degradation which occurs in relation to the network or associated software or client’s hardware, or (iv) any special, indirect, incidental or consequential loss, costs, damages, charges or expenses, whether or not Arkadin was advised in advance of the possibility of such loss or damage.
7.3 Subject to Clauses 7.1 and 7.2, Arkadin’s maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or any other legal theory for damages arising out of or relating to this Contract shall not exceed the aggregate amount of the previous one (1) month of billing immediately prior to the incident arising, in relation to the affected Services, as set out in the SOF. This amount is calculated from the effective date of the Contract to the date of the event from which the damage occurs.
The parties declare that the price agreed in the Contract reflects the distribution of the risk as negotiated between the parties. In addition, the Parties agree to the limitation of their respective liabilities as set out above and agree that the provisions of this Clause 7 are essential and material terms of the Contract. The parties further agree that they would not have concluded this Contract in the absence of such provisions.
8. Force Majeure
In an event of force majeure, the affected party shall notify in writing the other party as soon as practicable. Neither party shall be in breach of this Contract, nor be liable for any failure or delay in performance of any obligations under this Contract arising from or attributable to force majeure, which shall include, but not be limited to, events that are unpredictable, unforeseeable or irresistible, such as any severe weather, earthquake, fire, epidemic, acts of terrorism, biological warfare, outbreak of military or civil hostilities, explosions, strikes, sabotage, expropriation by governmental authorities or interruption of service due to telecom carriers or Partner events, Internet or other network, or inability to obtain raw materials, supplies or power needed for provision of the Services.
Only the material or geographical part of the Contract affected by the event of force majeure shall be suspended during such event or terminated as set out under Clause 9 and the provisions of this Clause shall not apply to the payment obligations of the Client.
Without prejudice to any other rights or remedies to which the parties may be entitled in terms of this Contract or in law, a party, may:
(a) terminate the Contract if the other party commits a material breach under the Contract and fails to remedy such breach (if the breach is capable of remedy) within thirty (30) days after receiving written notification from the non-breaching party to do so;
(b) immediately terminate the Contract if: (i) a receiver or administrator is appointed over the other party or its assets or if the other party is declared bankrupt, placed under liquidation or is subject of analogous proceedings under laws of any jurisdiction or (ii) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(c) terminate the Contract in the event of a force majeure (as defined in Clause 8) affecting the Contract for an uninterrupted period of over three (3) months as of the date of the notice of force majeure.
Upon termination of the Contract, the Client shall immediately pay Arkadin any amounts owed under the Contract, including but not limited to (i) all Arkadin’s outstanding or unpaid invoices and interest (ii) any amount outstanding as a result of the use of the Services by the Client or Users prior to termination, which amounts have not been invoiced; (iii) the remaining balance of all fixed monthly subscription fees until the end of the subscription period specified in the SOF, unless the Contract is terminated due to an un-remedied material breach by Arkadin or its Partners; and (iv) to the extent applicable, the remaining balance of the Minimum Commitment that would have become due during the remaining period of the Initial Period or the Renewal Period unless the Contract is terminated due to an un-remedied material breach by Arkadin or its Partners. Moreover, Client shall immediately cease using the Services and the associated software and undertake to ensure that Users cease use of the Services and the software.
10. Intellectual Property
The Client agrees that all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection in the world, including confidential know-how, trade secrets, graphics, logos and trade and business names, domain names used by Arkadin in performing its obligations under this Contract (“Intellectual Property Rights”) are, and will remain, the property of Arkadin (or the Partners) and nothing in this Contract or Arkadin’s performance will constitute or be deemed to be a transfer of any of the Intellectual Property Rights of Arkadin or the Partner to the Clients and/or Users. The allocation by Arkadin of access numbers, PIN codes, logins, passwords, personal identification numbers and telephone numbers shall not constitute any transfer of ownership to the benefit of the Client and/or Users.
The Client authorizes Arkadin to reference the names, trademarks, trade names and corporate logos of the Client on marketing literature, website, commercial representations and in any list of Client references.
11. Confidentiality and privacy
Each party undertakes to keep strictly confidential any information regarding the other party or its affiliates, Partners, suppliers and subcontractors that they may have mutually exchanged during the performance of the Contract, including, but not limited to trade secrets, customer list, network and infrastructure information, traffic volume, software plans or any other product or projects in development, services, marketing or business plans, financial information and pricing, and all documents/access information for the Services and passwords and any information which are by nature confidential. Neither party shall use or disclose any information to a third party for any purpose other as may be reasonably necessary for the performance of the respective duties of each party under this Contract.
Each party shall hold such confidential information of the other party in strict confidence and shall not reveal them during the Contract term and for a period of three (3) years after the termination or expiration of the Contract. Confidential information doesn’t include any information which is: (a) generally available to or known by the public; (b) already in possession of a party prior to disclosure under the Contract; (c) was independently developed by or for the recipient without reference to, aid from or reliance upon the confidential information disclosed under this Contract; or (d) lawfully disclosed by or to a third party. In addition, the recipient of the confidential information of the other party may disclose the confidential information pursuant to any request, requirement or order of any court of competent jurisdiction or any governmental or regulatory authority provided, however, the recipient takes all reasonable steps to provide prompt and sufficient notice to the disclosing party so that the disclosing party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Contract. The confidential information of each party shall be safeguarded by the other to the same extent that it safeguards its own confidential materials or data relating to its own business.
Each party agrees to limit access to such confidential information on a “need-to-know” basis only to employees, consultants, affiliates, Partners, authorized agents or representatives in order to perform the obligations under this Contract and subject to their keeping such information confidential. Neither party shall disclose any information to a third party without the prior written approval of the other party.
On termination of the Contract, if circumstances permit, the receiving party shall immediately return the confidential information upon receipt of written request by the disclosing party or destroy them. Each party is entitled to retain a copy of the confidential information in their respective legal department for record purposes only or where otherwise required to be retained by law.
11.2 Personal Data Protection
Terms used in this provision are defined in the Data Protection Directive (95/46/EC). The parties agree and acknowledge that the Client is the data controller and Arkadin is the data processor in relation to Client’s personal data processed by Arkadin. At all times both parties will comply with their respective obligations under applicable data protection and privacy legislation.
If Arkadin processes Client’s personal data, Arkadin will use commercially reasonable efforts to ensure that Arkadin (i) only processes the Client’s personal data in accordance with the applicable legislation; (ii) only processes the Client’s personal data in accordance with the instructions of the Client and/or to the extent necessary to deliver the Services and (iii) takes appropriate technical and organizational measures against unauthorized or unlawful processing of Client’s personal data and against accidental loss or destruction of, or damage to, the client’s personal data.
The Client shall provide sufficient notice to, and obtain all necessary consents under applicable laws, from the owners of the information and the relevant data subjects, in order to allow the processing of their personal information. The Client shall also make all declarations and obtain all prior authorizations, other consents and approvals required under applicable laws, including data protection laws.Arkadin’s privacy statement may be found and consulted on Arkadin’s website: http://www.arkadin.com/us/privacy-policy.
12. Assignment and Sub-contracting
Each party may assign or transfer any of its rights or obligations under this Contract, in whole or in part, with the prior consent of the other party provided it shall inform the other party in writing prior to the assignment or the transfer. Notwithstanding the foregoing, each party may assign this Contract to (i) its Affilliates, and (ii) an entity in which the assigning party maybe merged or consolidated, or which purchases all or substantially all assets or equity interest of the assigning party.
In case of transfer or assignment as mentioned above, the assignee/transferee will assume all of the rights and obligations of the assignor/transferor under the Contract and will be deemed the signatory of the Contract without any further contract changes or amendment.
This clause shall not be construed as limiting Arkadin’s right to use subcontractors to carry out any of its obligations under the Contract and Arkadin shall be entitled to sub-contract its obligations, provided that Arkadin shall remain liable for any such Services provided by a subcontractor.
13. Applicable law and jurisdiction
This Contract shall be interpreted and governed by the laws of the State of New York without regard to its rules governing conflicts of law, and the parties agree to submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for New York County, New York, to resolve any disputes arising hereunder.
14.1 Failure by a party to enforce any clause of the Contract, whether temporarily or permanently shall under no circumstance, be construed as a waiver of the rights of such party under the said clause.
14.2 Each party warrants that it has the necessary rights, licenses and permissions to enter into and perform its obligations under the terms of the Contract.
14.3 If any provision of the Contract is found to be void, invalid, unlawful or unenforceable to any extent, the affected provision will be severed from this Contract and this will not affect validity and enforceability of the remainder of the Contract.
14.4 The parties acknowledge that Services, software and technical information provided under the Contract may be subject to export laws and regulations of other countries and any use or transfer of such Services, software, and technical information shall be in compliance with all applicable regulations and international trade sanctions.
14.5 It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be an employee, agent, distributor or representative of the other party.
14.6 Nothing in this Contract is intended to give anyone who is not a party to it the right to enforce its terms.
14.7 In connection with any actions or activities associated with the Contract or in connection with the relationship between the parties, neither party shall engage in any unlawful trade practices or any other practices that are in violation of the Foreign Corrupt Practices Act of 1977 (FCPA), or any other applicable law that prohibits bribery or similar activity.
Each party shall ensure that (i) it will not either directly or indirectly, seek, receive, accept, give, offer, agree or promise to give any money, facilitation payment, or other thing of value from or to anyone (including but not limited to government or corporate officials or agents) as an improper inducement or reward for or otherwise on account of favorable action or forbearance from action or the exercise of influence; and (ii) it will establish appropriate safeguards to protect itself from such prohibited actions.
Each party shall, upon request from the other party, provide evidence of the steps being taken to avoid prohibited actions, including the establishment of policies, practices, and/or business controls with respect to these laws.
To the extent permitted by the relevant authority, each party shall promptly inform the other party of any official investigation with regard to alleged breaches of the above laws that are related in any way to this Contract.