ARKADIN'S PROPRIETARY SERVICES
"Employee(s)" refers to all the Client's employees and representatives, located in the country in which the Client is registered, unless otherwise stated in the SOF.
"Named License" refers to any individual license ordered by the Client for a named Moderator.
"Software" refers to the software applications and their updates, including any "add-on" extension modules except for those developed under open source license as well as any documentation relating to the use of the Services.
"Active User" refers to a Moderator having opened a conference during the reference period.
2. Software License Terms
2.1 In the event of downloading and installation of the Software, Arkadin grants the Users a limited, personal, non-exclusive, non-assignable and non-transferable license for the use of the Software as an integral part of the Service, subject to the terms of any Open Source licenses if applicable. The license is granted for the License Initial Term or for its License Renewal Term. Any Software supplied shall be supplied as object code only.
2.2 All the rights and titles including but not limited to Intellectual property rights in the Software are protected by law as well as by any other applicable regulations. Arkadin warrants that it is the holder of the appropriated rights and is able to grant the license to the Users.
2.3 Users undertake not to (i) attempt to access or copy the Software's source code forms; (ii) use the Software for other purposes than those of using the Services; (iii) create copies of the Software for other purposes that would not be directly related to the Services or generate a number of copies of the Software greater than that authorized under the applicable law; (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only insofar as the applicable law expressly authorizes it), or incorporate the Software into other software or create derivative works based on the Software; (v) resell, rent, or make any commercial use of the Software, or assign or grant the Software or the license terms to any third party; (vi) use the documentation for purposes other than internal; (vii) remove any notice or label included on the Software; (viii) export, re-export, misappropriate or disclose any part of the Software or any technical information relating thereto, directly or indirectly, in violation of applicable laws; or (ix) carry out intrusion tests or attempt to obtain a denial of service in connection with the Services.
2.4 Client understands that the Software is provided "as is". Arkadin expressly disclaims all warranties of any kind (express or implied), including but not limited to, any warranties of merchantability and fitness for a particular purpose or use.
3. Client's obligations
3.1 The Client undertakes to use the Services in accordance with the written instructions issued by Arkadin, particularly in the "welcome pack" for security purposes and better management of the Services.
3.2 The Client expressly authorizes Arkadin, for the sole purpose of supplying Services to (i) host, record the Content and copy such Content on back-up servers if a Moderator or the Client selects the recording or storage option, (ii) cache the Content during conferences for web-conference services and (iii) display and transmit the Content to Users pursuant to Client’s instruction.
3.3 The Client is responsible for providing internet access, connectivity, as well as communications equipment. Establishing the online-connection to the Arkadin platform and operating the User devices are Client’s responsibility.
4. Arkadin’s Obligations
4.1 Security - Arkadin agrees that the Services will be provided in compliance with the security rules and principles as described in the Arkadin security white paper available at the following address:
4.2.1 subject to articles 4.2.2 and 5, Arkadin indemnifies, defends (or, at its discretion, negotiates and settles) and holds harmless the Client against any action brought against Client on the grounds that any Software or Service or the use thereof, infringes the Intellectual Property rights of a third party, to the extent that such action is not attributable (i) to the use of the Software or the Service other than in compliance with the provisions of the Contract, (ii) to the combination of the Software or the Service with one or more services not supplied by Arkadin or Arkadin’s Partners, or (iii) to the use of an outdated version of the Software despite an updated version having been supplied by Arkadin, or (iv) to modifications or additions made to the Software or Service upon request from the Client. Client shall (a) inform Arkadin immediately in writing and cooperate reasonably with Arkadin for the purpose of defending against such action and (b) not negotiate or settle with the third party having brought the action for infringement. Arkadin shall manage and control the defense.
4.2.2 Arkadin shall be liable, under the aforementioned terms and conditions and in the event that the Software/Service is determined to infringe the third party’s intellectual property rights, for all damages or payments for which the Client would be responsible by a final judgment.
4.2.3 Arkadin may, at any time, at its discretion and at its expense, (a) either obtain for the Client the right to continue the use, (b) modify or replace the Software or Service with non-infringing Software or the Service, or (c) cancel all or part of the Services relating to the infringing Software or Service.
Arkadin's full liability to the Client, its officers, directors, representatives, employees, or agents is limited, all damages and service credits included, to three (3) times the monthly average billing invoiced by Arkadin to the Client from the date of signing the Service Order Form until the date of the event giving rise to the claims in respect of the service(s) from which it originated. This limitation of liability is accumulative rather than per-incident.
6. Intellectual Property
The issuance by Arkadin of PIN codes, user names, passwords, personal identification numbers and telephone numbers does not result in any transfer of ownership to Users. Arkadin may mention in its communications that it is the Client's preferred supplier of the Services.
7. Service Use Policy
7.1 Limitation of Capacity. For the use of the Services, the Client undertakes to inform its Moderators of the limits of capacity associated with the Moderator licenses. These limits are referenced in the related Service Order Form and apply to all Participants and the Moderator of the conference.
7.2 Fair Use. The Services are subject to a fair use policy of which the details are conveyed to the Client upon signing the Contract. The Client undertakes to inform its Moderators of and to ensure their compliance with Arkadin's fair use policy. In the event of exceeding the limit by an Active User, Arkadin shall inform the Client in order that the Client can make any necessary adjustment to the consumption of the Moderator in question.
7.3 The Client undertakes to ensure that the Moderators comply with use of the Service limited to one meeting at a time.
7.4 The identification of the Moderator with a Named License shall be unique and associated with the named Moderator. The Named License assigned to a particular Moderator shall not be shared with other employees or Users. Client shall provide written authorization to Arkadin to reassign a Named license to another employee or User.
7.5 Any unauthorized use or any use exceeding the use limits by the Moderators shall be billed by Arkadin based on the Standard Charges.
7.6 Service Charges include the time connection to the conference, actual conference time, waiting time and time for connection to any Arkadin assistance service, in particular to the client assistance service (*0) as well as potential disconnection costs. The Service Charges are calculated for the consumption share per minute, in full minutes, on a per Participant and Moderator basis (inbound or outbound legs), in full minute increments from the initial call connection to the termination of all conferences.
8. Active Host License
The active host license is a model of Named License as detailed below.
8.1 By choosing the active hosted license model, the Client agrees to a period of at least two (2) years.
8.2 Upon signature, the Client undertakes to notify Arkadin of the number of Moderators that are expected to benefit from an active host license (henceforth referred to as "Declared Users").
8.3 The Client may update its active host license calculation base to increase the number of Declared Users by signing a Service Order Form referring to the Contract.
8.4 For the first year use of the Services, the Client shall pay for a number of licenses equal to the higher of (i) a percentage (as mentioned in the Service Order Form) of the number of Declared Users on the date of signing of the Contract; or (ii) a minimum number of licenses as mentioned in the Service Order Form. For the following years, the Client shall pay for a number of licenses equal to the higher of (i) a percentage (as mentioned in the Service Order Form) of the number of Declared Users on the Contract's anniversary date; (ii) a minimum number of licenses as mentioned in the Service Order Form; or (iii) the average number of Active Users over the last three (3) months preceding the Contract's anniversary date.
8.5 In case of full deployment licenses, the Client undertakes to convey to Arkadin as Declared Users the full list of its Employees on the date of activation of the Service and to order a number of licenses equal to this number.
The parties agree that Arkadin may conduct, at its expense, audits on the Users’ use of the Services to ensure their compliance with the contractual provisions. These audits may be conducted remotely or on the Client's premises. Arkadin shall inform in writing the Client with prior notice of ten (10) days. Audits shall be conducted during the Client's office hours and an audit report shall be issued to the Client. In the event that the audit report reveals non-conformance of the Client's obligations, Client shall undertake to resolve such non-conformance within ten (10) days.