The capitalized terms used but not otherwise defined herein shall have the meaning assigned to such terms in the Contract or in the applicable Service Description.
“Arkadin Calling Plans for Teams” means the service as described in the applicable Service Description.
“Call termination” means delivery of an out-going call to the called party.
“CLI” means Calling Line Identification. The CLI is the presented or restricted phone number of the calling party.
“DID” means Direct Inward Dialing and refers to a phone number resource enabling a User to receive incoming calls.
“Documentation” means user documentation, in all forms, relating to the Software (e.g. user manuals, on-line help files).
“Emergency Call Services” consists of the access to the Emergency Services Centers in the Available Countries through emergency telephone numbers by routing outgoing calls originated from User CLI in accordance with applicable laws and regulations.
“Emergency Services Centers” means local and/or government backed entities that deal with sudden and/or urgent situations where immediate action is needed to protect life or property.
“Enabled Account” means a Microsoft enabled account, whether such account is active or inactive.
“Public Safety Answering Point” (PSAP) means a call center responsible for answering calls to a local emergency telephone number for police, firefighting and ambulance services.
“PowerSuite Cloud Managed Services” means Arkadin’s licensor, namely UnifySquare’s, remote managed services (an optional component of PowerSuite Software) related to Client’s use of Microsoft’s Skype for Business software, as set out in the Service Description.
“PowerSuite Software” means the Unify Square proprietary software set out in the Service Description that is provided primarily on a software-as-a service, subscription basis pursuant to the terms of the Contract and including all patches, bug fixes, upgrades and Releases to the PowerSuite Software that Unify Square makes available for general release at no additional charge to its Clients. References to PowerSuite Software in these STU include Proprietary Software Component.
“Proprietary Software Component” means any proprietary software component to be installed on Client or its Affiliate’s computer systems.
“Service Description” means the overview and other technical and operational terms applicable to the Service, as amended from time to time and provided to Client.
“User” means any authorized individual having an account hosted on Microsoft platforms.
“VOIP telephony services” means (i) interconnected Voice over Internet Protocol (VoIP) telephone call including call collect, call termination and (ii) phone numbering resources management (including porting and rental).
- SERVICE ACCESS
Conditions applicable to the access to the Services will be agreed between the parties in the Statement of Work (“SOW”) which will be added by way of reference to the SOF. The SOW will include, without limitation, the best-suitable method of connection, as chosen by Client according to its specifications. Services described herein can be bundled or can be each provided as standalone Services, as set out in the SOF.
- TELEPHONY SERVICES
- Microsoft Calling Plans
VOIP telephony services, as described in the Microsoft Office 365 Service Description, shall be provided by Microsoft only in the Available Countries as listed in said Service Description.
- Arkadin Calling Plans for Teams availability
VOIP telephony services, as described in the Arkadin Calling Plans for Teams Service Description, shall be provided by Arkadin only in the Available Countries as listed in said Service Description.
Regardless of the location where the Client decides to use the telephony services, Client will be responsible to comply with all applicable laws and regulations and shall obtain all applicable permits and licenses in connection with such use. Client hereby releases Arkadin and its providers from any and all liability, losses or damages which may arise from Arkadin and its providers’ disabling or disconnection of any of User’ services due to the failure of Client to comply with its obligations under the present article. The expression “Available Countries” shall refer to the countries where the Services are available.
- Emergency Call Services
- Client obligations
Client shall provide Arkadin with all information necessary to enable the Emergency Call Services, including but not limited to the name and the complete address of each User. Client authorizes Arkadin to disclose Users name, telephone number, Address Declared and other relevant identifying information to third-party service providers, including without limitation, call routers, call centers and PSAPs, for the purpose of dispatching emergency services personnel to User location. Client represents and warrants that the information provided about the User’s location as tied to the DID is correct, accurate and complete as of the deployment date and corresponds with the actual address of the User based on official documents (“Address Declared”). Client acknowledges that an oral confirmation of the physical location might be required by the agents of Emergency Services Centers.
Client agrees to provide Arkadin written notice of any change of such information in a timely manner in order to ensure the accuracy of the relevant Emergency Call Services database and shall be solely responsible for any consequence caused by failure or delay in providing or updating the information.
The Client acknowledges that Arkadin will not be able to convey calls, including Emergency calls if the information is not provided in accordance with this clause.
The Client acknowledges that in case of modification of the Users information, Arkadin will modify it as soon as possible and within ten (10) business days from the request. It is Client’s sole responsibility to take into account this timeframe as, during this period, the Emergency Call Services will only be available for the concerned User number based on the previously provided Users information. It is Client’s liability and responsibility to inform Users beforehand of this temporary unavailability and to obtain their enlightened consent.
CLIENT SHALL BE RESPONSIBLE TO PROVIDE EACH USER WITH AN ACKNOWLEDGEMENT OF ANY EMERGENCY CALL SERVICES LIMITATION IN WRITING PRIOR TO USER’S FIRST USE OF THE SERVICES.
- General rules
Arkadin provides Emergency Call Services in accordance with the conditions set forth in the Contract and as may be described in the applicable Service Description.
Client recognizes and acknowledges that the Emergency Calls Services are limited to Users: (i) with a geographical address located in one of the Available Countries; (ii) with a DID corresponding to the national and local dialing plan of the country where the User is declared; and (iii) who are, when dialing to reach an Emergency Service Center, physically located at the Address Declared.
Should Users use the Service in a manner which does not comply with the above conditions, Arkadin shall not be held responsible for any consequences due to the unavailability of the emergency calls routing and Client shall hold Arkadin, Arkadin’s representatives and employees harmless for any and all costs and consequences due to losses, damages or other injuries (including personal injury or death) incurred by Users or a third party as a result of the Emergency Call Services limitations. Client acknowledges and agrees that Arkadin may rely on a third party for the routing of Emergency Calls.
The Client recognizes and agrees that when a User uses the Emergency Call Services, the CLI is unconditionally displayed to the Emergency Services Center and Client agrees to inform its Users of such display.
Client acknowledges that the functionality of all VOIP services, including Emergency Call Services may not function correctly or at all, (i) in case of occurrence of a force majeure event as defined by the applicable law; (ii) in the event of absence of electrical power, access to the Internet, network congestion or outage that is outside the control of Arkadin, its suppliers or its network operators, misconfiguration of Client’s network, equipment malfunction or other general failures associated with the VOIP services. These events may require that the Client or its Users reset or reconfigure equipment in order to re-establish the VoIP service and the availability of the Emergency Call Service; or (iii) if the Emergency Services Center does not promptly or properly answer or route the call or if errors or omissions are made by the Emergency Services Center or the local exchange carrier servicing the Emergency Services Centers.
The Client agrees that Arkadin, its suppliers and Arkadin’s network operators shall not be held liable for any damages directly resulting from situations or similar situations as mentioned above.
The Client understands and acknowledges that the use of the VOIP telephony services from a location other than the Address Declared (“Nomadic Usage”) is possible but does not permit to supply Emergency Calls Services. The Client shall therefore (i) inform its Users at the time of subscription about the non-availability of the Emergency Call Services in case of a Nomadic Usage of VOIP telephony services; and (ii) clearly inform the Users at the time of subscription that each User must use another communication mean for reaching Emergency Service Centers when located at a different address than the Declared Address.
ARKADIN RECOMMENDS CLIENT TO ENSURE USERS HAVE ACCESS TO A REGULAR TELEPHONE LINE ENABLING ROUTING OF EMERGENCY CALLS WHEN NOT PHYSICALLY LOCATED AT THE ADDRESS DECLARED.
- USA specific rules
- Different routing solutions
The Client acknowledges that different routing solutions of the emergency calls shall be used due to national applicable law regarding the Emergency Services Centers. The Client therefore agrees that the following limitations to the Emergency Call Service features shall apply:
1/ If the address of User is not validated due to errors (for example a post code that is not matching the street name), then the correction of these errors shall not be done in real-time. The Emergency Call Services may therefore not be correctly supplied when the correction is being made.
2/ if the primary method of routing of emergency calls is not available for the entire territories of United States or Canada, Arkadin and its underlying suppliers shall therefore use a second routing solution according to the applicable regulatory framework. Client understands and agrees that the following limitations to Emergency Call Service features will apply in case the emergency call is routed via this second solution:
- When the User places the emergency call, this may be routed to an Emergency Services Center other than the Emergency Services Center that would normally receive the emergency call placed from the User location.
- The User physical location and CLI will not be presented to the Emergency Services Centers.
- If the User cannot speak, no information will be provided to the Emergency Services Centers in order to contact Arkadin to obtain information that could allow them to dispatch emergency services to the User's location.
- Differences with traditional 911 emergency services
VoIP service allow people to make or receive telephone calls over the Internet to or from the public switched telephone network. The nature of VoIP telephone calls, while appearing similar to traditional telephone calling services, creates unique limitations and circumstances, and Client understands and agrees to the differences between traditional telephony service and VoIP telephony services. Client also understands and agrees that VOIP telephone services may not provide the most timely or accurate location data if used for the Emergency Call Services, and there are certain circumstances under which the Emergency Call Services may not be available through VOIP telephony services or may be limited by comparison to traditional 911 service. Such circumstances include, but are not limited to, relocation of the User's IP-compatible Customer Premises Equipment [CPE] (i.e. laptop, PC, IP Phone, etc.), use by the User of a non-native telephone number, broadband connection failure, loss of electrical power, and delays that may occur in making an Address Declared available in or through the Automatic Location Information (ALI) database. Arkadin will not be liable for such resulting errors or delays.
Clients acknowledges and agrees that it is solely responsible for informing its Users of the differences between traditional telephony service and VoIP telephony services, including the lack of traditional 911 emergency services. Prior to establishing access to the Services for User, Client must provide Users with a telephone warning "stickers" (the text of which is available at http://terms.arkadin.com/e911_warning_stickers.pdf ) and directions to place the sticker on or near the User VoIP telephone. Client must annually provide all Users with reminders of the 911 service limitations and stickers and directions to place the sticker and reminder on or near the User’s VoIP telephony. If Client or its Users are not comfortable with the limitations on VoIP 911 dialing, Client and Users should have an alternative means of accessing traditional 911 services.
- Placing 911 calls
When a 911 emergency call is made, VOIP telephony services will attempt to automatically route the 911 call through a third-party service provider or call center that will then route the call to a Public Safety Answering Point based on registered address information provided by the Client. This third-party service provider is different from the PSAP that would answer a traditional 911 call which has access to automatically generated user address information. Consequently, User may be required to provide the User name, address, and telephone number to the third-party service provider answering the 911 call. The VOIP telephony services will attempt to automatically provide the PSAP dispatcher or emergency service operator with the registered name, address and telephone number associated with the Client account and associated phone number from which the call is made. However, for technical reasons, the dispatcher receiving the call may not be able to capture or retain User’s name, phone number, or physical location. Therefore, when making a 911 emergency call, User must immediately inform the dispatcher of his or her location (or the location of the emergency, if different). If the User is unable to speak, the dispatcher may not be able to locate the User if the location information associated with the Client account and associated phone number is not up to date.
Users must not disconnect the 911 emergency call until told to do so by the dispatcher as the dispatcher may not have the User’s number or contact information. If the User is inadvertently disconnected, the User must call back immediately.
- Connection Time
For technical reasons, including network congestion, it is possible that a 911 emergency call will produce a busy signal or will take longer to connect than a traditional 911 call.
THE CLIENT ACKNOWLEDGES AND AGREES THAT EXCEPT FOR ANY CLAIM, LOSS, FINE, PENALTY OR COST, DEATH, DAMAGE TO PERSONS OR PROPERTY CAUSED BY ARKADIN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER ARKADIN, ITS UNDERLYING CARRIER(S), NOR ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY, OR ANSWERING OF EMERGENCY CALL SERVICES OR IN RESPONDING TO EMERGENCY CALLS, NOR THEIR OFFICERS OR EMPLOYEES, MAY BE HELD LIABLE FOR ANY CLAIM, LOSS, FINE, PENALTY OR COST, DEATH, DAMAGE TO PERSONS OR PROPERTY (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF, OR RELATING TO THE 911 SERVICES. Client hereby waives any and all such claims or causes of action, arising from or relating to the provision of all types of Emergency Call Services to Client except for any claim, damage, loss, fine, penalty or cost caused by Arkadin’s gross negligence or willful misconduct. Client further agrees and acknowledges that it is indemnifying and holding harmless Arkadin and/or its underlying carriers from any third party claim or action for any caller placing such a call without regard to whether the caller is an employee/consultant or customer of Client to the extent that such third party claim is not caused by gross negligence or willful misconduct of Arkadin or its underlying providers.
- Fair Use Policy
Client’s use of the Services is subject to limits mentioned in the applicable Service Description.
- Fair Use
The Services are provided with a fair use policy designed to prevent fraud and abuse of the Services. For illustration purposes only, the following use will not be considered as a legitimate use of the Services: any use of the PSTN Services in a manner that may expose Arkadin, its Partners or any of their personnel to criminal or civil liability; or re-selling subscription minutes; or calling PSTN telephone numbers (whether singly, sequentially or automatically) to generate income for Client or others as a result of placing the call, other than for Client individual business communications; or unusual calling patterns inconsistent with normal, individual subscription use.
- Suspension and Termination
If the Client fails to pay an undisputed invoice in due course, Arkadin is entitled to limit the access to the Services to dialing emergency calls and to receiving calls, during the period of nonpayment by sending a written notice to the Client to remedy such breach. Should the Client fail to pay within thirty (30) days after receiving such notification, Arkadin may terminate the Contract. Client understands and agrees that in the event Services are terminated pursuant to the Contract, Users will not be able to access Emergency Service Centers from the User’s DID.
- MICROSOFT SOFTWARE LICENSE TERMS
- License agreement
Client shall have the sole responsibility to maintain valid license agreements with Microsoft, via Arkadin or other Microsoft certified resellers or directly from Microsoft, at all times during the term of the Contract and, as may be reasonably required by Arkadin, provide Arkadin with any valid Microsoft license certificate.
- Office 365 license terms
By placing a Service Order Form with Arkadin for Office 365 services provided by Arkadin including Office 365 license order from Arkadin, the Client agrees that it has accepted the Microsoft Cloud Agreement available at the following web address: https://msdn.microsoft.com/en-us/partner-center/agreements
- Arkadin Calling Plans for Teams
By placing a Service Order Form with Arkadin for Arkadin Calling Plans for Teams, the Client accepts the conditions and restrictions of use as set out in the Contract and in the applicable Service Description.
- POWERSUITE SOFTWARE LICENSE TERMS
PowerSuite Software refers to the computer program offered by Unify Square (the “Licensor”) and supplied by Arkadin to Client (i) as outlined in the configuration management overview as set out in the Service Description as well as any modifications, additions and revisions provided to Client under the terms of the Contract and (ii) as further described in the Service Description.
- PowerSuite Software
- Use of the PowerSuite Software. Subject to the terms and conditions of the Contract, Arkadin grants to Client a limited, worldwide, non-exclusive, non-transferable license during the term of the applicable SOF to use the purchased PowerSuite Software solely for use by Users in connection with Client’s internal business operations related to Skype for Business and/or Teams.
- Use of the Documentation. Subject to the terms and conditions of the Contract, Arkadin grants to Client a limited, worldwide, non-exclusive, non-transferable right to reproduce, without modification, and internally use a reasonable number of copies of the Documentation provided to Client solely in connection with the use of the PowerSuite Software that Client is entitled to receive pursuant to the SOF and only for the term of the relevant SOF.
- PowerSuite Software Technical Support. Arkadin will use reasonable efforts to provide Client with the PowerSuite Software technical support, as set out in the Service Description, so long as Client is current with its payment of Services fees to Arkadin.
- Availability of PowerSuite Software. Arkadin and/or its Licensor will use reasonable efforts to make the PowerSuite Software available, excluding scheduled downtime for periodic maintenance and updates and emergency outages. Arkadin and/or its Licensor will make reasonable efforts to provide Client with notice of scheduled downtime at least 24 hours in advance of such downtime. Availability of PowerSuite Software is also dependent on the availability of third-party servers where PowerSuite Software is installed. Arkadin and/or its Licensor will endeavor to work with these third-parties to ensure high availability of these servers but cannot guarantee 100% uptime. Client’ sole and exclusive remedy, and Arkadin’s sole and exclusive liability for any non-conformity with this Section 5.1.4is set forth in the Service Description.
- Restrictions. Only Users are authorized to use or have access to the PowerSuite Software. User’s accounts cannot be shared by more than one individual. Client will ensure that Users comply with the applicable obligations of Client under these STU and will be directly responsible to Arkadin and/or its Licensor for their conduct and any breach of these STU by them. Client is responsible at all times for the accuracy, quality and legality of the Client Data and the means by which Client acquires, stores, discloses or otherwise uses Client Data, as well as for determining access privileges and rights for Users. Client agrees to provide any required disclosures to and obtain any required consents for the transfer of Client Data to Arkadin and/or its Licensor. Except as otherwise explicitly provided in these STU or as may be expressly permitted by applicable law, Client will not:
- rent, lease, or otherwise permit any third party to use the PowerSuite Software (including Proprietary Software Component) or Documentation, other than a User;
- use PowerSuite Software to provide services to third parties (e.g., as a service bureau) or to demonstrate the PowerSuite Software to third parties who are not Users;
- circumvent or disable any security or other technological features or measures of the PowerSuite Software;
- reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code, or create derivative works of the PowerSuite Software (including Proprietary Software Component);
- upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate privacy or intellectual property rights;
- use the PowerSuite Software to harm, threaten or harass another person or organization;
- send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to a network or system; or
- attempt to access any modules or functionality that is not part of the purchased PowerSuite Software.
- Acceptable Use Policy. In addition to Client’s other obligations regarding use of the PowerSuite Software, Client acknowledges that the PowerSuite Software is hosted on the Microsoft Azure platform and that Microsoft imposes an acceptable use policy on those who use the Microsoft Azure platform through Arkadin. Accordingly, Client will ensure that Users will not use the PowerSuite Software: (i) in a way prohibited by law, regulation, governmental order or decree; (ii) to violate the rights of others; (iii) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (iv) to spam or distribute malware; (v) in a way that could harm Microsoft Azure or the PowerSuite Software or impair anyone else’s use of it; or (vi) in any application or situation where failure of Microsoft Azure or the PowerSuite Software could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.
- Protection against Unauthorized Use. Client will use reasonable efforts to prevent any unauthorized use of the PowerSuite Software (including Proprietary Software Component) and Documentation and immediately notify Arkadin in writing of any unauthorized use that comes to Client’s attention. If there is unauthorized use by anyone who obtained access to the PowerSuite Software or Documentation directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Arkadin and/or Unify Square to prevent or terminate unauthorized use of the PowerSuite Software and Documentation
- True Ups. Client acknowledges that PowerSuite subscriptions are based and priced on a per Enabled Account, per month basis, as further described in the Service Description and the applicable SOF, or on any other basis as provided in the applicable SOF. Arkadin and Client acknowledge that the number of Enabled Accounts may increase or decrease over time. Unless a different frequency is specified in the applicable SOF, and as further described in the Service Description, Client and Arkadin will be entitled to review, audit and true-up the actual number of Enabled Accounts on the same periodic basis as the Client’s billing period. Arkadin may also re-evaluate and true up the actual number of Enabled Accounts any time that the number of Enabled Accounts has increased by fifteen percent (15%) or more from the start of the then-current billing period. True-ups and resulting subscription changes will be handled as follows:
(i) Subscriptions for new Enabled Accounts are co-terminus with the original subscription term of the applicable SOF;
(ii) Subscriptions for new Enabled Accounts will be priced based on the aggregate number of Enabled Accounts and invoiced on a pro-rated basis following each periodic true-up for the remainder of the then-current billing period;
(iii) At the next billing period, the subscription for the then-current aggregate number of Enabled Accounts will be priced at the aggregate price point and invoiced accordingly; and
(iv) A decrease in the number of Enabled Accounts to achieve a lower price point will not be allowed.
- Data Security
- Client acknowledges that the Licensor may be and act as the Client data processor if and when Licensor processes, for the sole purposes of the performance of the Services, Client personal data (“Client Data”). The data processor will establish and maintain technical and organizational measures reasonably designed to protect against or unlawful processing of the Client Data and against accidental loss or destruction of, or damage to, the Client Data and shall take reasonable steps to ensure the reliability of data processor personnel who have access to the Client Data. These measures shall be designed to provide a level of security appropriate to the harm that might result from unauthorized access to or use of Client Data and the nature of the Client Data, having regard to the state of technological development and the cost of implementing the measures.
- The data processor will perform annual vulnerability scans that include application and internal/external network infrastructure vulnerability scans, and ethical hacking/penetration tests. Vulnerabilities will be reviewed and prioritized based on risk and remediated accordingly.
- Client acknowledges that use of the Services will involve transmission of Client Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties when communicated across the Internet or other networks. Data processor is not responsible for any Client Data which is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by Data processor and its subcontractors, including but not limited to the Internet and Client’s local network. Client shall protect its user login names and passwords from access or use by unauthorized parties and shall ensure that the Users do so as well, and Client is solely responsible for its or its Users’ failure to do so.
- Client must promptly notify data processor of any suspected security breach at firstname.lastname@example.org and email@example.com. In addition, Arkadin and/or Unify Square will promptly notify Client of any unauthorized access to, or use of, Client Data that comes to Arkadin’s or Unify Square’s attention. In the event of any unauthorized disclosure of Client Data resulting from Client’s use of the Services, Arkadin, Unify Square and Client will promptly investigate the cause of such unauthorized disclosure, and will work together in good faith to take the steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification laws.
- Licensor will use measures consistent with prevailing practices in the United States software-as-a-service industry to screen the PowerSuite Software prior to making it available or providing it Client, for the purpose of avoiding the introduction of any Malicious Code into Client Data or Client’s computer hardware and software systems or software. For the purposes of these STU, “Malicious Code” means software (including, without limitation, code, instructions, programs, routines and/or scripts) that is designed to (i) permit unauthorized access to and/or copying of Client’s data, hardware or software; or (ii) damage, delete, delay, disable, erase, interfere with, modify, shut-down or otherwise harm Client’s data, hardware or software, including, but not limited to, components that are commonly referred to as “back doors,” “bots”, “drop dead devices”, “malware”, “time bombs,” “Trojan Horses,” “viruses”, and “worms”. In the event Arkadin and/or Licensor introduces Malicious Code into Client Data or Client’s computer hardware or software systems or software, Arkadin and/or Licensor will reasonably assist Client in removing such virus and/or Malicious Code at no additional charge.
- BLUEJEANS SERVICE TERMS
BlueJeans Gateway for Microsoft Teams refers to the video interoperability Services and computer program offered by BlueJeans (the “Licensor”) and supplied by Arkadin to Client (i) as outlined in the configuration management overview as set out in the Service Description as well as any modifications, additions and revisions provided to Client under the terms of the Contract and (ii) as further described in the Service Description.
- Equipment and ancillary Services. Client is responsible for obtaining and maintaining and the proper use of any equipment and ancillary services such as, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, and internet and telephone service needed to connect to, access or otherwise use the Services. Client is also responsible for maintaining the security of such equipment, Client account (including administrative User names and passwords), and any ancillary Services. BlueJeans Gateway Software
- Additional Services. Client agrees that additional BlueJeans Services can be provided by Arkadin, subject to specific terms and conditions as may be provided by Arkadin.
- Processing and Transmission. Client understands that the technical processing and transmission of the Services, including Client Content, may be unencrypted and involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
- Third-Party Products. The Services may contain links, add-ins, applications, widgets or other access points that will take Client and Client information to other websites and resources that are not operated or controlled by Licensor (“Third-Party Sites”). The policies and procedures we described here do not apply to the Third-Party Sites. Client’s access to and use of such Third-Party Sites is solely at Client’s own risk and is subject to the terms and conditions of use and privacy policies applicable to such Third-Party Sites. When Client interacts with a Third-Party Site, it is Client’s responsibility to understand all applicable terms, conditions, and policies applicable to such Third-Party Sites.
In addition, if third-party services, applications, code, hardware or products (“Third-Party Products”) are integrated or used in connection with the Services, Client agrees that (a) Licensor makes no representations and disclaims all warranties, express or implied, regarding Third-Party Products, (b) Licensor is not responsible and shall have no liability for Third-Party Products or the unavailability of Third-Party Products, (c) if Third-Party Products are provided under a separate license or other agreement, such terms shall govern with respect to such Third-Party Products, (d) Client is solely responsible and liable for its use of Third-Party Products, (e) Client authorizes Licensor to share User Data with providers of the Third-Party Products as required for the operation of the Third-Party Products, provided however, that Licensor is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of User Data by or through Third-Party Products or their providers, and (f) Licensor has no obligation to support any integration(s) of Third-Party Products with the Services and may cease any integrations of Third-Party Products at any time, in Licensor’ sole discretion.
- NON-MICROSOFT SOFTWARE OR SERVICE SPECIFIC TERMS
- User license terms
- Subject to the terms and conditions of the Contract, Arkadin and its Licensors grant the Users, a worldwide, nontransferable, non-exclusive, limited and personal right to install (as the case may be), use, and run, view and display on screen in the ordinary course of use, Software for the duration of the Contract or, where applicable any Renewal Period, provided that Software is not modified or altered in any way. This license is granted for Client’s internal use of the Services. All rights, title, ownership rights, and Intellectual Property rights in the Service or Software are protected by applicable copyright laws or other laws and are held by Arkadin and/or its licensors. Arkadin and/or its Licensors own and reserve all rights, title and interests in and to the Service or Software.
- Subject to the terms and conditions of the Contract, Arkadin and its Licensors grant to Client a limited, worldwide, non-exclusive, non-transferable right to reproduce, without modification, and internally use a reasonable number of copies of the Documentation provided to User solely in connection with the use of the Software for the term of the relevant SOF.
- Users shall not: (i) try to access to or copy the Software’s source code forms, (ii) use the Software and the Documentation 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 and Documentation than this allowed by applicable law; (iv) reproduce, 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 its license to any third party; (vi) use the Software to provide services to third parties (e.g., as a service bureau) or to demonstrate the Software to third parties who are not Users ; (vii) remove or obscure 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; (ix) make intrusion tests, spread malicious code for deny service attacks; (x) send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to a network or system; (xi) use the Software to harm, threaten or harass another person or organization; (xii) attempt to access any modules or functionality that is not part of the purchased Software; or (xiii) circumvent or disable any security or other technological features or measures of the Software; or (xiv) create Internet links to or from the Services or frame or mirror any content forming part of the Service.
- Arkadin will provide the Software and Services in accordance with the Service Description and as described in the Contract. Save to that extent, the Client understands and agrees that the Software is provided "AS IS" and as far as the law permits, Arkadin expressly disclaims all warranties of any kind, including but not limited to, any implied warranty of satisfactory quality, conditions of design, merchantability or fitness for a specific purpose. Arkadin does not warrant that (i) the Services will be uninterrupted, error free, or free of viruses or other harmful components, (ii) the Services are not vulnerable to fraud or unauthorized use, or the features or functionalities of the Services will be available at any time in the future. Client is responsible and Licensor shall have no responsibility for determining that Client’s proposed use of the Services complies with applicable laws where Client is using the Services or in Client’s jurisdictions.
- Installation of Releases. Except in case of SaaS subscription, Client will promptly (but consistent with Client’s change management practices) implement all Software updates, releases, bug fixes, service packs and workarounds designated as mandatory by Arkadin and/or its Partners. Arkadin will provide the Services as described in the relevant Service Description and may enhance, replace, and/or change the features of the Services without materially reducing the core features, functions, or security of the Services without the Client’s consent.
- Infringement and indemnification
- Infringement Defense. Arkadin will defend the Client from any actual or threatened third party claim that the Software infringes or misappropriates any Intellectual Property rights of any third party during the term of the Contract if (i) Client gives Arkadin prompt written notice of the claim; (ii) Arkadin has full and complete control over the defense and/or settlement of the claim; (iii) Client provides reasonable assistance in connection with the defense and settlement of the claim as Arkadin may reasonably request; and (iv) Client complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
- Infringement Indemnification. Arkadin shall indemnify and keep indemnified Client against all losses, liabilities, costs and expenses (including legal expenses) arising out of or in connection with any claim, demand, action or proceeding brought against Client asserting that Client’s use of (i) the Software or (ii) Services, or (iii) any other item, information or input provided by Arkadin and/or its Partners which Arkadin permits the Client to use in connection with the Services, infringes the Intellectual Property rights of any third party
- Exclusions. Arkadin will have no obligation for any infringement to the extent that it arises out of or is based upon (i) the combination, operation, or use of the Software with third party software or services not envisaged by the Contract and if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Client, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the license or other rights granted to Client; (iv) Client’s failure to use the latest Release of the Software made available to Client under the Contract or to comply with instructions provided by Arkadin, if the alleged infringement would not have occurred but for such failure; (v) any modification of the Software not made by Arkadin or its Partners where such infringement would not have occurred absent such modification; (vi) Client Data; or (vii) unauthorized use of the Software. Client hereby agrees that it will reimburse Arkadin and/or its Licensors for any costs or damages that result from these actions.
- Mitigation of infringement action. If Client’s use of the Software is, or in Arkadin’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under the present article, then Arkadin will either: (i) procure Client’s continuing right to use the Software; (ii) replace or modify the Software in a functionally equivalent manner (and without causing Client to incur any additional internal or external cost or expense) so that it no longer infringes; or if, despite Arkadin’s commercially reasonable efforts, Arkadin is unable to do either (i) or (ii), Arkadin will (without prejudice to the indemnity provided hereabove) (iii) terminate the licenses with respect to the Software subject to the infringement claim and refund to Client all unused subscription fees for the Software that Client pre-paid.
- Exclusive Remedy. The present article states Arkadin’ sole and exclusive liability, and Client’ sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property right by the Software.
- Liability Claims
Any action against Arkadin and/or its Licensors or Client must be brought within twelve (12) months after the date of the event giving rise to the cause of action.
- Export Compliance
Each party shall comply with the United States and other foreign import and export control laws and regulations. Client acknowledges that the Service or Software may contain Commercial Computer Software under Federal Acquisition Regulations as may be supplemented by the Federal Government agencies and are provided only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial computer software developed at private expense and not in the public domain and that the Services, Software and Documentation are accordingly subject to the U.S. Export Administration Regulations (the “EAR”). Client shall be responsible for ensuring that Client’s right to import, export or use the Services, Software and Documentation complies with laws and regulations applicable to Client and Client’s industry and business, including with the EAR. Without limiting the foregoing, Arkadin and Client each respectively represents that: (i) it is not located in any country that is subject to U.S. export restrictions or prohibitions (“Restricted Country”); and (ii) it is not on any Government issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List and the State Department Debarred Parties List/; (iii) it is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government.
- Use of the Services in China
Due to the uncertainty of the legal status of the use of the Services in China, which is not clearly either prohibited or authorized, any use of the Services in China will be at Client’s own risk without any warranty of any kind. In addition, Client shall not resell or distribute the Services or any licenses thereof in China.
Client will defend, indemnify and hold Arkadin and its Licensors harmless from any claims arising out of or relating to Client’s actual or alleged misuse or fraudulent use of the Service or any other actual or alleged breach of these STU. Client is responsible for any costs incurred by Arkadin or any other party (including reasonable legal fees) in connection with such claims.