If Client subscribes for Arkadin Total Connect, the following terms and conditions shall be incorporated and made part of the Contract.
The following paragraph shall be added at the end of Section 2.2 (Invoicing):
50% of the initial Setup Fee set forth in the Pricing Exhibit shall be invoiced to Client upon the signature of the Contract by both parties, and the remaining 50% of the initial Setup Fee shall be invoiced to Client upon the completion of the deployment.
The following paragraph shall be added at the end of Article 4 (Software License Terms):
Subject to the terms and conditions of the Contract, including the rights of any third-party licensors, Arkadin grants to Client a non-exclusive, non-transferable license to access and use the Software for Total Connect Services in executable form, solely for Client’s own internal business purpose in accordance with the Documentation.
"Documentation" means the information provided or made available to Client in connection with the use of the Software for Total Connect Services.
"Software for Total Connect Services" means the computer software programs for the Total Connect Services and any modified, updated or enhanced versions of such programs that Arkadin or a third-party licensor may make available to Client.
The following paragraphs shall be added at the end of Article 5 (Client’s obligations) as new sections 5.9 and 5.10:
5.9 (i) prevent itself from the risk of losing data, files and programs by making regular backups, limiting the number of administrator privileges, ensuring a strong password management policy and using antivirus software updated regularly; (ii) communicate with users of the Services to provide notice of unavailability for any reason such as outages, service upgrades and other maintenance notices; and (iii) be responsible for registering and maintaining Client’s domain name(s), including the payment of all costs and fees associated thereto.
Client represents and warrants that (a) Client holds title to or is otherwise authorized to use Client domain name, (b) Client will not knowingly or negligently transmit information that contains viruses or other computer programming defects; and (iii) Client will not transmit any bulk email ("Spam").
5.10 Client acknowledges that Client’s internet connection will be used to provide real-time communications, including but not limited to, voice and video calls. To measure the bandwidth performance and provide Arkadin necessary information, Client agrees to run the VoIP testing on its platform and infrastructure to evaluate the consistency of its networks and applications.The application tool can be downloaded by clicking the link: https://chinookcommunications.zendesk.com/hc/en-us/articles/203814270-Testing-your-internet-connection-consistency-for-Lync.
Client shall promptly provide Arkadin the testing result along with an analysis of any issue that it finds. The results of the above test will be used to identify any issues that need to be addressed prior to launching the Lync service. Client shall use commercially reasonable efforts to resolve the identified network performance issues and remediate any other deficiency in its network applications that could affect VoIP. Client shall hold Arkadin harmless and be solely responsible for the quality of service, deficiency or any other service issues as a result of Client’s failure to remediate its network performance issues recommended by Arkadin.
5.11 In connection with the use of the Services, Client shall provide Arkadin with all information necessary to enable 911 or equivalent emergency services. Client represents and warrants that the information provided about the end user location as tied to the DID is accurate as of the deployment date. Client agrees to provide Arkadin written notice of any change of such information in a timely manner and shall be solely responsible for any consequence caused by failure or delay in providing or updating the information.
The following paragraph shall be added at the end of Article 6 (Arkadin’s obligations) as a new section 6.6:
6.6 Products or hardware manufactured or distributed by a third party other than Arkadin may be sold by Arkadin only under the original manufacturer/distributor’s STU (including warranty, indemnity and support) applicable to such products or hardware. No additional warranty or indemnity is provided by Arkadin.
End User License Terms
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE
This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by Insert Company Name (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.
“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.
2. OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with Customer and this document and/or your agreement with Customer.
5. COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
8. TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10. PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
11. NOT FAULT TOLERANT. The Products are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
12. EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14. INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.
CLARITY CONNECT END USER SOFTWARE TERMS
End User Software Terms
a. “Clarity” means Clarity Consulting, Inc.
b. “Hoster” means Arkadin, Inc.
c. “Software” means the Clarity Connect™ software that Hoster acquires from Clarity.
d. “Hoster Solutions” means the software services that Hoster provides to its End Users
2. Non-Disclosure of Source Code: The End User agrees that any source code that it receives for the Software is Clarity's confidential information and shall neither (i) disclose any such source code or any portion thereof to any nonparty to this Agreement, nor (ii) use any such source code or any portion thereof for any purpose other than the use of the Hoster Solutions, without the prior written consent of Clarity.
3. Intellectual Property: The End User acknowledges and agrees that it is not acquiring ownership rights in or to the Software, and full title and all ownership rights to the Software will remain with Clarity.
4. Liability Limitations; Disclaimers. The End User acknowledges and agrees that:
a. Clarity grants it no covenants, warranties, representations or indemnifications with respect to the Software licensed to Hoster or with respect to Hoster Solutions,
b. Clarity has disclaimed other warranties, expressed or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, and any oral or written representations, proposals or statements made prior to the date of this Agreement,
c. Clarity will not be liable for special, consequential, indirect, exemplary or punitive damages (including loss of profits, business revenue, goodwill or anticipated savings) however caused and even if foreseeable,
d. End User shall agree that its sole remedies relating to its use of the Software and Hoster Solutions will be against Hoster and that it shall have no claims whatsoever against Clarity, and in no event will the total aggregate liability of Clarity to the End User for claims relating to the Software or Hoster Solutions, regardless of the form of action or the theory of recovery, exceed the total aggregate fees paid or payable by the End User.
5. End User shall agree that it has no right to and shall refrain from directly or indirectly:
a. modifying or preparing derivative works of the Software
b. creating or attempting to create by de-compilation, reverse engineering/assembly, or otherwise, the source programs or any part thereof from the Software or from other information made available under this Agreement or otherwise
c. creating, reproducing or distributing any advertising, marketing or promotional material representing the capability of the Software other than any promotional literature made available to Hoster by Clarity.
6. End User shall agree that it will not use the Software or Hoster Solutions in any way that will cause Hoster to violate its license with Microsoft for Lync or its license with Clarity for the Software.
7. Any disputes between Clarity and the End User will be governed by the laws of the State of Illinois, USA without regard to its conflicts of laws rules, and the End User stipulates and agrees that the matter will only be heard in a State or Federal Court located in the County of Cook, State of Illinois, and the End User further agrees to waive any claim it may assert regarding the lack of personal jurisdiction.
ADDENDUM FOR TESTING NETWORK INFRASTRUCTURE AND INTERNET CONNECTION FOR CONSISTENCY REQUIRED FOR LYNC
Client acknowledges that (i) Client’s internet connection will be used to provide real-time communications, including but not limited to voice and video calls, and (ii) its internet connection, speed, consistency of service as well as other factors can have an impact on its effective use of the Services. To measure the bandwidth performance and provide Arkadin necessary information, Client agrees to run the VoIP testing on its platform and infrastructure to evaluate if its networks and applications are capable and operating nominally.
The application tool can be downloaded by clicking the link: https://chinookcommunications.zendesk.com/entries/21703974-Testing-your-internet-connection-consistency-for-Lync. Client shall promptly provide Arkadin the testing result along with an analysis of any issues that it finds. The results of the above test will be used to identify the areas that may need to be addressed prior to launching the Lync service. Client shall use commercially reasonable efforts to resolve the identified network performance issues and remediate any other deficiency in its network applications that could affect VoIP. Client shall hold Arkadin harmless and be solely responsible for the quality of service, deficiency or any other service related issues as a result of Client’s failure to remediate its network performance issues recommended by Arkadin.